1. Position paper of APSA on IPR in plant breeding and Co- existence of Plant Breeder’s Rights and Patents DR ARVIND KAPUR

2. “IPR LAWS TO PROTECT INNOVATIONS NOT TO RESTRICT CROP BREEDING The attention towards Intellectual Property rights in biological sciences and in particular in agricultural crops is heightened after TRIPS agreement under WTO and each country enacted laws to protect the rights of “INNOVATORS” in crops breeding The broad patents granted in many crops for native traits and also for essential breeding processes are resulting in apparent restriction of further research The overall systems of “Intellectual Property Rights” which are being applied to broader range of protections made plant breeding and commercial seed sector more efficient and effective.

3. AGRICULTURAL GERMPLASM - A HUMAN HERITAGE AGRICULTURAL GERMPLASM - A HUMAN HERITAGE No body owns the Agri-germplasm and everybody is a custodian of this heritage No body owns the Agri-germplasm and everybody is a custodian of this heritage Nature is maintaining dynamic equilibrium of germplasm and environment and contonuously making it adaptive to changesNature is maintaining dynamic equilibrium of germplasm and environment and contonuously making it adaptive to changes The crossing and selection under test environment lead to development new recombinants which are performing.The crossing and selection under test environment lead to development new recombinants which are performing. New technologies with advance software's lead to unravel the genetic information and speed up and accurately develop high performing genotype thru breedingNew technologies with advance software's lead to unravel the genetic information and speed up and accurately develop high performing genotype thru breeding INNOVATION’s and DISCOVERIES have to be clearly defined and protection should be offered after critical case analysisINNOVATION’s and DISCOVERIES have to be clearly defined and protection should be offered after critical case analysis

4. POSITION OF APSA ON DIFFERENT PROVISION OF UPOV ON IPR  APSA recognizes UPOV 1978 and 1991 act and its various provision for protection of varieties.  Protection and reward for INNOVATIONS is essential to promote seed industry in Asian region  Protection will encourage higher investments in agriculture  Productivity improvement in Asian region is absolutely needed to provide food to 60% population of the world  APSA along with its members understand the need to develop a position paper to safeguard the interest of its members and harmonising various IPR laws exist in this region

5. APSA’s POSITION Mission  Develop and create healthy & fair competition among its members and contribute significantly towards farmers in enhancing their incomesJustification  In the Asia-Pacific region, the seed industry have the risk of IPR infringements. Seed production especially in vegetables is happening thru third party in many countries and IPR laws in most of the countries are not fully implemented. The chasing of infringements is time consuming and costs are high For protection of INNOVATION and rewarding INNOVATORS, transparent and appropriate IP laws are developing in APSA region

6. Chronology of events DECIDED TO FINALIZE PAPER AND CIRCULATE AMONG MEMBERS in June 2014 DECIDED TO FINALIZE PAPER AND CIRCULATE AMONG MEMBERS in June 2014

7. TERMS OF REFERENCE (TOR) AND TARGET  Executive Committee (EC) in May of 2012 set up IPRWG  Task of Development of a position paper on Intellectual Property Protection of Plants in the Asia-Pacific  EC appoints Mr. Uday Singh as Chair Person and authorised him to confirm and convene members of the working group of up to 15 members  TOR prepared by Tom Burns and circulated to the group  Several comments offered taken on board and final version circulated and approved by members  First meeting planned on 7th November 2012 during Bali Congress; to discuss scope of the paper and various responsibilities  Timelines: Initial paper to be ready for discussion by May 2013  In Nov. APSA Kobe meeting, decision taken to prepare paper by May 14 and circulate to all members in June and final version to be passed in AGM in APSA meeting in Macau

8. Members n n Total number of group presently is 12 n n Suggested to add member from Australia/New Zealand

9. HIGHLIGHTS OF POSITION PAPERS APSA countries are either following UPOV 1978 act or UPOV 1991 act APSA countries are either following UPOV 1978 act or UPOV 1991 act APSA recognize the “BREEDER’S EXEMPTION” and “ FARMER’s EXEMPTIONS” by clearly defining the limits of these EXEMPTION’s APSA recognize the “BREEDER’S EXEMPTION” and “ FARMER’s EXEMPTIONS” by clearly defining the limits of these EXEMPTION’s PBR does not extend to Private actions, Experimental actions (Research exemptions) or Breeding purposes (Breeding exemptions). “Farmer’s Privilege” is another exemption where farmer who have lawfully acquired the protected variety can keep a small amount of seed from his own harvest to be re-sown in his own fields. “Research Exemption” is provided to other researchers to use the variety for experimental purposes. “Breeder’s Exemption” is not to restrict other breeders for further use of existing protected varieties to develop new varieties

10. HIGHLIGHTS OF POSITION PAPER DUS and novelty tests are critical for granting breeder’s rights Technical guidance is important to ensure examinations are conducted with sound principles and leading to harmonization. APSA suggests that each member country should review the DUS guidelines and add all important crops and characteristics that may be required Protection of the parent lines would mean that the specific hybrid developed using those lines itself falls under the protection. According to ISF, inbred lines developed for making hybrids which are not commercial, should not to be used for further breeding without consent of the owner, APSA supports these suggestions

11. HIGHLIGHTS OF POSITION PAPER APSA POSITION- APSA suggests that in order to use these characteristics for the establishment of distinctness, the disease resistance characteristic should be well documented and brought into the UPOV guidelines APSA suggests and support for the standardized tests to be adopted for all disease resistances in various crops and disease codes introduced as per the guidelines of ISHI. APSA suggests that a harmonized approach in developing specific marker protocols for using this technology crop wise can be worked through the NSAs.

12. HIGHLIGHTS OF POSITION PAPER APSA suggests that the EDV principle should not restrict the “breeders’ exemption”. The concept of EDV has helped in decreasing plagiarism in a variety development. APSA suggests that a variety should be regarded as an EDV, when it has been predominantly derived from initial variety through techniques such as gene transfer, multiple back-crossing or mutation leading to a new variety which differs from the initial variety only by one essential characteristic. In case there are more differences than one in essential characteristics, then based on the distance coefficient to define threshold, should be the base of decision for EDV and new variety.

13. HIGHLIGHTS OF POSITION PAPER Free access to the protected genetic materials is called “the breeders’ exemption”. The Plant breeders’ rights to stimulate innovative strength and the competition among the breeders using the breeders’ exemption are vital for further progress in breeding. Free access of germplasm to breeders for crop improvement needs to be ensured. Breeder should have right to use commercially available material and germplasm available through gene banks. APSA strongly support the Plant breeders’ rights and breeder’s exemption as an effective and appropriate system to protect and develop new and novel varieties.

14. HIGHLIGHTS OF POSITION PAPER Duration of Breeder’s Rights The duration of Breeder’s Rights under UPOV 1991 is granted for a period of not less than 20 years from the date of granting. APSA suggests that all countries of the region need harmonization for the period of protection. "farmers' privilege," (or: Farm Saved Seeds) recognizes that, for some crops, there has been a common practice of farmers saving their own seed, not for the purpose of selling the seed. UPOV 1978 implicitly acknowledges a farmer’s privilege because it falls outside the scope of the right while UPOV 1991 made this a specific (optional) exception. Activities, including for example “subsistence farming”, where these constitute acts done privately and for non- commercial purposes, may be considered to be excluded from the scope of the breeder’s right, and farmers who conduct these kinds of activities freely benefit from the availability of protected new varieties

15. HIGHLIGHTS OF POSITION PAPER In some countries ( India) farmers are entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a protected variety but not sell seed that is branded with the breeder’s name. APSA recognize the importance of farm saved seeds in this region but uniform conditions governing FARMER’s RIGHTS are required in Asia.

16. HIGHLIGHTS OF POSITION PAPER APSA considers that genuine products of biotechnological inventions which are novel with inventive step and fulfilling all criterion of patentability to be patentable.. All “Essential biological processes” include crossing and selection should not be allowed to patent. Conventionally derived biological material using essential biological process should also not be allowed to patent Any biological material protected by patent rights should be freely available for developing new biological material under clear set of conditions. Material not expressing the function of patented elements should be allowed to be used in breeding. Products developed through biotechnological inventions including elements of transgenes, cis- genes and novel mutants not existing in nature may be allowed for patenting.

17. APSA favors strongly that patented variety without these elements should have “breeder’s exemption ”. APSA POSITION- on native genes is that such patents on naturally occurring traits should not be allowed in the large interest of food security. Native traits which are either derived by using essential biological processes or through other biotechnological tools like Markers and can also be independently arriving at the same properties in biological material should also not be allowed to patent. HIGHLIGHTS OF POSITION PAPER

18. Unlike Plant breeder’s rights, patents do not provide “the breeder’s exemption”, namely free access to the protected genetic materials by breeders. Co-existence of Plant Breeder’s Rights and Patents: APSA suggests that the right balance between protection as an incentive for innovation as well as access to genetic material and technologies to enable further improvement and innovation.

19. APSA Strongly suggest that only inventions to be patented but not discoveries. Patenting of varieties with naturally occurring traits are permitted in some countries ( Utility Patents in USA) APSA strongly recommends that such patents should not be allowed. APSA favors “Breeders’ exemption” in using genetic material (carryings patented traits) without the patented element to develop new varieties HIGHLIGHTS OF POSITION PAPER

20. APSA recognize that the Plant genetic resources exchange can be done through Mutually Agreed Terms (MAT) and Prior Informed Consent (PIC) agreements that clearly indicate the rights that the owner is giving to the beneficiary in terms of using such materials. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) The treaty implements a Standard Material Transfer Agreement (SMTA) which is a standardized agreement where all conditions from the provisions of the ITPGRFA have been taken into account, APSA POSITION is to consider the importance of access to genetic diversity and encourages countries in Asia and Pacific to adopt and implement the ITPGRFA. Regarding farmer’s rights (through ITPGFRA) APSA favors full implementation of these rights. It is important that this implementation is to safeguard the legitimate interest of the breeders on the new varieties developed.

21. HIGHLIGHTS OF POSITION PAPER APSA remains cautious on the farmers’ rights on new protected variety without licensing from the owner. This has to be viewed through “farmer’s privilege”. Some countries handle through rights on farm-saved seeds while, others deal as exception to breeder’s rights and still others keep under farmer’s rights

22. HIGHLIGHTS OF POSITION PAPER APSA has to make efforts to bring together the member countries and recommend adoption of the UPOV 1991 Act. Harmonization of PBR laws among the member countries will have to follow. This act provides a uniform and well-balanced system for PBR. Breeder’s exemption and farmer’s exemption are provided through this act. Protection is based on DUS characteristics and APSA can help review and suggest adding crops and characteristics that may be required. Standardized tests to be adopted for all disease resistances in various crops and disease codes are essential besides a harmonized approach on using DNA marker technology needs to be proposed by APSA. Principles and procedures on EDV and exceptions to breeder’s rights have been clearly spelt out. Appropriate uniform laws for farm saved seeds also requires to be harmonized among the APSA member countries.

23. THANKS