1. 28 March 2014 Blanche MAGARINOS-REY Contact : blanche@avocat-magarinos-rey.com

2. The biological way of privatizing seeds The legal way of privatizing seeds Plant Breeder’s Right Patent Infringement and enforcement Critic of IPRs = innovation The Commons as solution

3. 2 ways of privatizing seeds/plant varieties Biologically : through methods of agronomic selection Legally : through legal regimes on intellectual property rights (IPRs)

4. The biological way Hybrids F1

5. 2. Final crossing between the two lines

6. “hybrid vigour” or “heterosis”? BUT also, a form of sterility, due to the fact that the 2nd generation of crop recover the degenerative characteristics of its parental lines, in an heterogeneous way (not exploitable by farmers)  Farmers have the obligation to buy seeds every year NB: hybrids are very common for maize, sunflower, sugar beat, carrot, tomato, canola… It is mostly used with allogamous species (cross-pollinated). It does NOT work for all species.

8. Patenting plant varieties A sui generis regime : the Plant Breeder’s Right (PBR) 1961, Paris : first convention for the Union pour la Protection des Obtentions Végétales (UPOV) : France, Belgium, Netherlands, Germany  revised in 1972, and revised in 1978 1991 : second convention UPOV UPOV membership around the world 71 members : -51 apply UPOV 91 -19 apply UPOV 78 -Belgium apply UPOV 61/72 71 members : -51 apply UPOV 91 -19 apply UPOV 78 -Belgium apply UPOV 61/72 The legal way

9. Conditions for the grant of a Plant Breeder’s Right : + any « creation » or « discovery » (≠ patent) + novelty + denomination + fee + any « creation » or « discovery » (≠ patent) + novelty + denomination + fee

10. In Europe

11. UPOV 78 Article 5 : Rights Protected; Scope of Protection (1)The effect of the right granted to the breeder is that his prior authorisation shall be required for : –the production for purposes of commercial marketing –the offering for sale –the marketing of the reproductive or vegetative propagating material, as such, of the variety. (…) (3)Authorisation by the breeder shall not be required either for the utilisation of the variety as an initial source of variation for the purpose of creating other varieties or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the variety is necessary for the commercial production of another variety. UPOV 78 Article 5 : Rights Protected; Scope of Protection (1)The effect of the right granted to the breeder is that his prior authorisation shall be required for : –the production for purposes of commercial marketing –the offering for sale –the marketing of the reproductive or vegetative propagating material, as such, of the variety. (…) (3)Authorisation by the breeder shall not be required either for the utilisation of the variety as an initial source of variation for the purpose of creating other varieties or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the variety is necessary for the commercial production of another variety. UPOV 91 Article 14: Scope of the Breeder's Right (1)[Acts in respect of the propagating material] (a)Subject to Article 15 and Article 16, the following acts in respect of the propagating material of the protected variety shal require the authorization of the breeder : (i) production or reproduction (multiplication), (ii) conditioning for the purpose of propagation, (iii) offering for sale, (iv) selling or other marketing, (v) exporting, (vi) importing, (vii) stocking for any of the purposes mentioned in (i) to (vi), above. (…) (5)[Essentially derived and certain other varieties] Article 15 : Exceptions to the Breeder's Right (1)[Compulsory exceptions] The breeder's right shall not extend to: (i) acts done privately and for non-commercial purposes, (ii) acts done for experimental purposes and (iii) acts done for the purpose of breeding other varieties (…) (2)[Optional exception] Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii). Article 17: Restrictions on the Exercise of the Breeder's Right (…) (2)[Equitable remuneration] When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration. UPOV 91 Article 14: Scope of the Breeder's Right (1)[Acts in respect of the propagating material] (a)Subject to Article 15 and Article 16, the following acts in respect of the propagating material of the protected variety shal require the authorization of the breeder : (i) production or reproduction (multiplication), (ii) conditioning for the purpose of propagation, (iii) offering for sale, (iv) selling or other marketing, (v) exporting, (vi) importing, (vii) stocking for any of the purposes mentioned in (i) to (vi), above. (…) (5)[Essentially derived and certain other varieties] Article 15 : Exceptions to the Breeder's Right (1)[Compulsory exceptions] The breeder's right shall not extend to: (i) acts done privately and for non-commercial purposes, (ii) acts done for experimental purposes and (iii) acts done for the purpose of breeding other varieties (…) (2)[Optional exception] Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii). Article 17: Restrictions on the Exercise of the Breeder's Right (…) (2)[Equitable remuneration] When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration.

12. In Europe  Farm saved seeds allowed for only 21 species No maize, no soy bean, no vegetable…  Farm saved seeds allowed for only 21 species No maize, no soy bean, no vegetable…

13. The marketing of seeds in Europe 12 European Directives  Same conditions for the acceptance of the variety as for the grant of a Plant Breeder’s Right : Distinction, Uniformity, Stability

14. Enormous loss of biodiversity by pushing traditional varieties, not protected by IPRs, into illegality (not fulfilling the Uniformity and Stability criteria) Identity of criteria for marketing authorisation and grant of IPR is equivalent to an obligation to use only appropriated seeds  “expropriation” of our commons through the promotion of “appropriation”

16. In 1991, the first European patent was granted to the dutsch company PLANT GENETIC SYSTEMS on a genetically modified plant. Then, in 1996, MONSANTO was granted a patent on its « Roundup Ready » soybean. To date, almost 2000 patents on plants and more than 1000 patents on animals have been granted by the European Patent Office. The progression of patents on plants produced by conventional breeding methods According to the NGO « No Patent on Seeds », close to 800 applications of this type would be pending, and about 100 have already been granted by the European Patent Office. Between 20-30% of applications concern conventional breeding methods. How ? “Tailor made” patents through skilful drafting of claims : appropriate choice of the category of the claims (G 2-12 Tomato II), chemical refining of seed by additives (T 49/83 – Propagating material/ CIBA-GEIGY), drafting species or variety non-specific or trans-variety claims (G 1/98 Novartis II), cutting-off critical steps of a process (Wisconsin WARF G2/06), through adding redundant, but technical process steps (i.e. genetic engineering steps, transgenic steps) to an otherwise biological process (G1/08 Broccoli / Tomato 1);

17. Example of trans-variety claims : Case T.1857/07 “Consejo Superior de investigaciones científicas v. Greenpeace” Oil from sunflower seeds with a modified fatty acid composition Facts (Claims 1 and 11) : - Specific fatty acid profile obtained by simple crossing between a high stearic line CAS- 3 and a high palmitic line in order to introduce the enzymatic activity of the high stearic line in the high palmitic line, and then selecting seed of F2 generations in which the amount of palmitoleic and the amount of asclepic acid are decreased to less than 4% based upon the total fatty acid content.

19. Almost no difference between patents and PBRs Farmer’s exception/right : Breeder’s exception/right : BUT

20. Infringement and enforcement BUT

21. Enforcement strategies of the industry ESA is monitoring closely any possible illegal activities on the European seed market. Ex: variety identification programme from samples taken on the market

22. Vegetative propagation of hybrid crops : tomato in Italy and Spain, mainly (20%) (+ melon, watermelon, eggplant…) Re-propagation of seeds of OP crops (lettuce, beans) and re-propagation of hybrid crops (onions) by seed producers  Physical inspections, DNA tests, traceability scheme and AIB certification, legal proceedings, agreements with 4 seed pelleting companies… Vegetative propagation of hybrid crops : tomato in Italy and Spain, mainly (20%) (+ melon, watermelon, eggplant…) Re-propagation of seeds of OP crops (lettuce, beans) and re-propagation of hybrid crops (onions) by seed producers  Physical inspections, DNA tests, traceability scheme and AIB certification, legal proceedings, agreements with 4 seed pelleting companies…

24. IPRs = innovation ?

25. Drawbacks of IPR regimes In general : Situation of monopolies on useful technologies Anti-competition strategies with the acquisition of patent portfolios by dominant economic actors Market concentration and disappearance of small innovative actors (high costs for acquisition and enforcement of patents) Problems of “patent thickets” in research and development sectors Very codified, hermetic dissemination of information, not easily exploitable Concerning seeds : The innovation of breeders is limited to what is commercially (very) viable, on a large scale Public breeding sector has been forced to withdraw from the seed market (“unfair competition”) Leads to market concentration (patents owned by large actors) and disappearance of small actors Patents have awarded non-innovative strategies and created barriers for innovation. Concerning seeds : The innovation of breeders is limited to what is commercially (very) viable, on a large scale Public breeding sector has been forced to withdraw from the seed market (“unfair competition”) Leads to market concentration (patents owned by large actors) and disappearance of small actors Patents have awarded non-innovative strategies and created barriers for innovation. Ex : MONSANTO and its bacteria Agrobacterium tumefactiens, central for transgenesis, until similar discovery was placed in the public domain by public researchers Ex: MONSANTO « Roundup Ready » soybean – 20 years of rents without any innovation for drought resistance or nutritionally improved varieties

26. Innovative companies have other (more efficient) strategies for securing a return on investment : -Industrial secret - marketing strategies for differentiation - careful contractual policies for distribution of products - constant innovation  exclusive appropriation is often the strategy of non-innovative actors  IPRs may protect absence of innovation and creates barriers for those who try to innovate Innovative companies have other (more efficient) strategies for securing a return on investment : -Industrial secret - marketing strategies for differentiation - careful contractual policies for distribution of products - constant innovation  exclusive appropriation is often the strategy of non-innovative actors  IPRs may protect absence of innovation and creates barriers for those who try to innovate Creative impulse inherent to Humankind Stimulation depends more on a comprehensive socio-economico-cultural context : education, financial and technical support, large dissemination of information… Creative impulse inherent to Humankind Stimulation depends more on a comprehensive socio-economico-cultural context : education, financial and technical support, large dissemination of information…

28. Thanks for your attention ! 28 March 2014 Blanche MAGARINOS-REY Contact : blanche@avocat-magarinos-rey.com