Plant Breeder’s Rights – A Blessing Or A Curse?

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Niels Louwaars of the Centre for Genetic Resources, Wageningen University, The Netherlands, recently discussed with Intellectual Property Watch the importance of plant breeder’s rights, their treatment under the UN Food and Agriculture Organization, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the International Union for the Protection of New Varieties of Plants (UPOV), and in Europe. He makes the case for a carefully balanced protection for plant breeders and changes to patents in agriculture, in order to ensure a competitive, diversified supply of plant varieties and seeds.

Q: The protection of plant varieties has a special article in TRIPS. Why is it so special?

A: Plant varieties and the seed produced from them have different functions: seed is an essential input for any crop production, it is a technology transfer agent and a carrier of biodiversity and on top of that it is a commodity that can be commercialised. Breeders provide an essential service for society, which is becoming blatantly clear again now by the arising global food shortages, but their “inventions” can in most cases be reproduced by any farmer. So legal protection is essential, but plant varieties don’t fit the patent criteria. The methods that breeders use are hardly ever non-obvious and their products are merely slight improvements of earlier work – they all stand on the shoulders of earlier breeders and they in turn on the generations of farmers that turned weeds into crop species. Moreover, breeders cannot describe their products in such a way that someone skilled in the art can reproduce it, and finally, breeders operate in an agri-“culture” with its own unwritten rules – some of which have been codified as Farmers’ Rights by the FAO.

That’s why plant breeder’s rights have been developed – to merge the biological complexity and traditional rights with the need to recognise – and financially support – the contribution of a plant breeder. It introduces definitions that fit the biological nature of the protected subject matter and provides for the necessary rules to allow for continued advancements (breeder’s exemption) and delineates the freedom of farmers to reproduce their own seed. TRIPS follows that logic and provides a unique place for crop varieties in Article 27(3) b as a result.

Q: Is this reference to the culture of crop production and “traditional” unwritten rules a bit outdated? Agriculture has become big business – farming is computerized and markets are global. Aren’t you painting an overly romantic view?

A: You’re right – farming, like field crop production in the American Midwest and even more so horticulture in my own country, is an industry. Precision farming using GPS on the tractor, fully automated vegetable greenhouses, requiring crop varieties that squeeze that last percent yield and the maximum quality out of each seed, are far away from the farmer digging a small plot of land, and for such types of agriculture, nobody would refer to Farmers’ Rights for such industrial crop producers. But it remains that breeders – also for such markets – add a small improvement to the existing products based on each other’s genetic materials. Restricting that – as the patent system does – is a threat to the advancement of agriculture. Also, the largest proponents of the patent system in plant breeding have materials of all their competitors in their current products. Breeding requires diversity from which to select, and fishing in your own genepool only will necessarily reduce advancement.

Yet in each country there are different agricultures and rules that may apply for one sub-sector (e.g., industrial horticulture) are not likely to optimally serve others (e.g., organic food production). Plant breeder’s rights accommodate that by restricting the right of farmers to reproduce seed for themselves (in horticulture) while allowing the use of farm-saved seed of other crops (e.g. cereals). Europe goes in that respect even further and makes a distinction between large scale and smallholder farmers; the latter don’t pay royalties on such saved seed. It is very difficult for a conventional patent system to make such distinctions, which is even more essential in developing countries.

Q: You wrote a report for the Dutch government on the relationship between different IP rights systems and the future development of the breeding industry. Your conclusion is that something needs to be done about patents on plants. What is happening to your recommendations?

A: The report concludes that if a competitive and diversified supply of varieties and seeds is to be maintained, the patent system – in the widest sense – needs to be changed. This can be done in three ways. First, it concludes that patents per sé may not be damaging to the innovation capacity in the sector, but that the ways that the patent system is currently used is. So the first suggestion is that the breeding and plant biotechnology sectors agree on reducing strategic patenting, i.e., blocking patents, overly broad claims and reach-through claims. The Dutch seed association has developed industry panels to investigate ways and means to do that.

Secondly, we recommend to vigorously improve patent quality by urging the major patent offices in this world to implement their rules more strictly: novelty, inventive step/non-obviousness, industrial application and enabling description. The offices had already started to “raise the bar” and expanding that will reduce the patent cloud hanging over the heads of plant breeders. We identified that the so-called patent thickets may not exist for those who have the human and financial resources to identify ways through but that for smaller companies and universities these thickets are very real.

Finally, we recommend to introduce a breeder’s exemption in patent law. Changing laws is difficult and takes a lot of time, and changing the law in one country does not have any significant effect because we deal with an internationally operating industry, so that requires international cooperation. Furthermore, we recommend that IP policies should take into account competition policies, public research policies and development policies.

Q: By focusing on the patent system, you effectively defended plant breeder’s rights. Are you saying there is nothing wrong with the plant breeder’s rights system?

A: The plant breeder’s rights under UPOV have evolved during the past 70 years, starting with the first laws in the 1940s in Europe, the harmonisation exactly 50 years ago and the subsequent upgrades of the system. This evolution proves that a protection system has to respond to changing needs and that also today, it may not perfect. Today, debates about farm saved seed are ongoing in Europe, as are debates about the effective collection of royalties from such seed which is improving in countries like France but non-existent in Italy. In the USA this is not done either, which contributes to the low esteem for breeder’s rights by parts of the industry, which resorts to patenting of varieties and shrink-wrap contracts. Also, the implementation of the concept of “essential derivation” proves complex. This attempts to reduce cosmetic breeding and securing rights for practical breeders when their varieties are used in transformation. But all in all, plant breeders are happy with the straightforward protection, which requires little cost for legal counsel to implement (compared to the patent system). And the current debate in breeder’s and farmers’ organisations is useful to make sure that the system remains up to date.

That brings me to another issue: Plant breeder’s rights in developing countries. Again, I’m convinced that the UPOV concept is good, also for countries where the seed industry is developing. And with “UPOV-concept” I mean that the rights of breeders and farmers have to carefully represent the needs of the different agricultures in each country. UPOV allows countries to remain members of the Union under either its old (1978) or its new (1991) Act, and within the country it provides for ways to differentiate between sub-sectors. Also, developing countries may have sub-sectors that need maximum protection, such as export horticulture, while at the same time the informal exchange of seeds and new varieties of basic food crops is essential to improve the livelihood of farmers that are not connected to the formal seed systems.

So, a plant breeder’s rights system should respond to these needs and thus recognize the Farmers’ Rights of such smallholders even if that means that variety development of crops like cassava, finger millet and cowpea will have to remain based on public investment. Unfortunately, the UPOV system cannot accommodate such use at this moment. The organisation could easily accommodate this by adopting a wider interpretation of its article on private and non-commercial use, but there seem to be forces that do not want to bring it up. I think this is a missed opportunity because an opening for countries to define this use would make it much easier for countries to join the Union.

Q. What do you predict is going to happen in the area of legal protection in the plant sciences?

A. First of all, the patent system is going through a major change. The pendulum has started to swing back a little due to important court decisions. Some of these have not reached the highest levels yet, such as the oppositions against breast cancer technology in the USA, nor it is yet unclear what the reach of the decisions will be such as the decision on a broccoli breeding method in Europe. This tightening of protection also happened in other fields, such as business methods and the computer sector. This means that “society”, including important industry sectors, are worried about the boundaries of the function of IPRs in supporting innovation. The rebalancing of the rights of the inventor and those of society is a good thing.

The breeder’s rights community has been caught in a rather defensive mood in the last couple of years with some parties asking for protection that is closer to the rights that patents provide. This pull towards stronger protection may have been a reason why the calls to relax the system in developing countries could not be accommodated. I hope that the swing back of the patent pendulum increases the confidence of the plant breeder’s rights system in its own strength and that there is the continuous careful balancing of rights and liberties among stakeholders. Because breeder’s rights can definitely be a blessing for an innovative and pluriform breeding sector.

Niels Louwaars studied genetic and plant breeding at Wageningen University, The Netherlands, and worked in Asia and Africa for some 10 years in seed and breeding programmes before becoming involved in seed policy and law. He extended that to intellectual property and biodiversity policy in the mid-1990s, which led to a PhD under the title “Seed of confusion”. He is currently working at the Centre for Genetic Resources in Wageningen, combining policy research with research management and teaching. Recent projects include an analysis of the roles of patents and plant breeder’s rights in the structure of the seed industry, the roles of IP rights in technology transfer for development, access and benefit sharing in the use of genetic resources in agriculture (with FAO) and seed policies (with the African Union). He is also member of the IP-chamber of the court in The Hague for plant breeder’s rights cases.

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