WIPO-UPOV SYMPOSIUM October 25, 2002UPOV

Rolf Jördens Vice Secretary-General UPOV LEGAL AND TECHNOLOGICAL DEVELOPMENTS LEADING TO THIS SYMPOSIUM: UPOVS PERSPECTIVE WIPO-UPOV SYMPOSIUM October 25, 2002UPOV

INTRODUCTION §Importance of modern biotechnology in plant breeding §IPR protection is independent from commercialization procedures §Issues resulting from the differences between the scope and the exceptions of the patent and breeders rights systemsUPOV

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§acts done privately and for non-commercial purposes §acts done for experimental purposes and §acts done for the purpose of breeding other varieties (breeders exemptionUPOV Exceptions to the breeders right

§Article 30 of the TRIPS Agreement states that: Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. §Open multilateral treaties in the field of patents do not provide for the extent to which those limited exceptions may be permitted §Necessary to refer to national or regional patent legislation and to relevant jurisprudenceUPOV Exceptions to the rights conferred by a patent

§EDV concept maintains the access of all varieties for breeding §EDV does provide a mechanism to ensure a suitable reward for plant breedersUPOV Balancing the reward to the respective rights holders (essentially derived varieties)

§purpose of the patent is to protect the developer of the genetic element §purpose of the plant breeders right is to protect the developer of the unique combination of plant germplasm forming the variety §exercise of breeders exemption constrained due to lack of similar provision in patent systemUPOV The ability to exercise the breeders exemption in the case of varieties containing patented inventions

§Article 7 and 8(2) of the TRIPS Agreement §State could be able to implement Article 30 in a way that protects the breeders exemptionUPOV PROVISIONS WITHIN THE TRIPS AGREEMENT WHICH MIGHT ALLOW THE PRESERVATION OF THE BREEDERS EXEMPTION

§rapid progress in the development of genetic engineering §increasing number of plant varieties will contain patented inventions §practical consequence: breeders exemption could be lost or greatly weakenedUPOV CONCLUDING REMARKS §how the breeders exemption could be preserved ? §a burning issue

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