2011 CIOPORA Chronicle - the 50th Anniversary Edition

PBR and Patents
For these crops, neither the definition
of propagating material 5 and
harvested material nor the demarcation
between these two groups is
clear 6 . The notion of “intended use
for propagation” significantly limits
the scope of the right, especially as
harvested material is only protected
under certain limitations and conditions.
Another limiting factor is the too
broadly worded exhaustion of
Plant Breeders´ Rights in combination
with the limited protection
of harvested material. It leads to
negative effects particularly for the
aforementioned global horticulture
production.
Fruit juice
In this regard, the lack of protection
of processed material is also
becoming increasingly disturbing.
Although UPOV 1991 provides
for the (optional) protection of
processed material, only very few
countries have included such protection
in their PBR laws.
However, the processing of harvested
material, mainly of fruits, has also
shifted from industrialised countries
to the sites where the plants are
grown. An effective protection,
therefore, also requires the protection
of processed products, in order
to prevent illegal processed material
to enter protected territories.
Two pillar strategy
Breeders are not the only ones who
ask for clear and effective rules
which safeguard fair competition.
Growers are also pleading for a fair
competition between countries and
all players in the business. 8
In order to attract more states to
adopt an effective Plant Breeders´
Rights regime throughout the
world, a two pillar strategy might
be helpful: Firstly, it is necessary to
raise the awareness of the benefits
and the business opportunities
arising with ornamental and fruit
production in developing and
newly industrialised countries.
Secondly, breeders and the trade
should apply a strict policy of
non-acceptance of countries which
do not provide an effective IP protection
for plant innovations, and
should use all means to prevent
illegal products originating from
such countries to enter territories
where protection is granted for
their varieties.
In order to strengthen the Plant
Breeders´ Rights, it will be necessary
to raise awareness about the
specific requirements of vegetatively
reproduced ornamental and
fruit varieties and to close the gaps
which currently exist.
For 50 years now, it has been the
role of CIOPORA to keep the
constant development of effective
IP-protection running – and in the
coming 50 years, CIOPORA will
also contribute to the development
of effective IP protection – to the
benefit of the business as a whole. |||
1 According to Article 37 (3) of the
UPOV 1991 Act new UPOV
members can only accede to the
UPOV 1991 Act and not to the
older Acts.
2 Oliver De Schutter: The right to
food, Seed policies and the right to
food: enhancing agrobiodiversity
and encouraging innovation. http://
daccess-dds-ny.un.org/doc/UN-
DOC/GEN/N09/424/73/PDF/
N0942473.pdf?OpenElement
3 See the UPOV report on the
impact of plant variety protection,
which has demonstrated a range of
beneficial impacts also to developing
countries, UPOV publication No.
353 (E).
4 To date 420 disputes about the
non-compliance with WTO rules
have been brought to the WTO, 28
of them in the field of Intellectual
Property. However, no WTO member
has started such a procedure on
the grounds of non-compliance with
Article 27 (3) (b) TRIPS.
5 A study of the definitions of “propagating
material” in the PBR laws
of 12 major UPOV member states
shows that the definition is different
(sometimes significantly, but at least
in details) in all of the selected PBR
laws.
6 The German Supreme court in its
Melanie case hold that finished
Calluna plants cannot be considered
as harvested material, because
there is no act of “harvest”.
7 Article 14 (3) of the UPOV 1991
Act, which contains the same limitations
as for harvested material
8 See e.g. the article of AIPH on page
35 in this magazine.
Developing and newly industrialised
countries with favourable environmental
and production conditions are the new
producers of ornamentals and fruits
and are increasingly squeezing out the
traditional producers of such crops.
28 www.CIOPORA.org | CIOPORA Chronicle April 2011