2011 CIOPORA Chronicle - the 50th Anniversary Edition

Patents
their patent applications. This
could have the effect of an immediate
blockage of the development of
competitive varieties.
Since (roughly)
the beginning of
this century we
have extended
possibilities for
patenting biotech
inventions, which
has lead to a
substantial influx
of patent rights in
the world of plant
breeding.
Conclusions
Solid ground
We cannot deny that the patent
system has gained solid ground in
the world of plant breeding and is
• Patents increasingly form an obstacle to plant breeding because they can
restrict access to germplasm;
• This is not materially changed by restrictive interpretation of the Biotech
Directive on issues like the requirement that genetic material performs its
function, or the exclusion of essentially biological processes;
• Amendment of existing laws is difficult;
• We need other creative solutions, such as a broader application of compulsory
licensing, to restore a productive and reasonable balance.
here to stay. Patent laws provide
for a balanced system for the enhancement
of innovation and they
have a much longer history than
PVP-based protection systems. In
essence there does not seem to be
a sound systematic reason to allow
for a special carve out from patents
for the plant breeding industry.
If, for example, the car industry
came to the legislator with the
complaint that all these patents for
car components make it difficult to
produce safer cars, this would not
present a reason to create a special
exemption for car manufacturers
to make use of inventions that
have a connection to safety in the
automotive industry. Therefore
it will be not easy to think of a
good reason for a kind of positive
discrimination for breeding
companies.
Liberal rules
The problem posed by patents will
not be solved by amending the
legislation so as to include a limited
exemption for breeding work,
which has been done in France
and Germany. Such a freedom for
breeding purposes has little meaning
when new varieties are to be
introduced on the market.
A more promising route to a
solution might be offered by more
liberal rules regarding compulsory
licensing. So far, the requirement
of significant technical progress
of considerable economic interest
has been applied very strictly.
As a result there are virtually no
examples of breeding companies
that have made successful attempts
for obtaining compulsory licenses.
If a patent appears to block the
development of new varieties on a
large scale, a more liberal approach
to compulsory licensing could
present an effective and reasonable
tool to remove the obstacle, without
wiping out the reward factor of
patents altogether.
In my view this would be far easier
than trying to bend the whole
system, because this would take
years - if at all successful. |||
CIOPORA Chronicle April 2011 | www.CIOPORA.org 23