1. STT2073 Plant Breeding and Improvement Intellectual Properties

2. The ownership of PROPERTY  Physical (tangible) property= Private rights  Intellectual property= Intellectual property rights

3. 6 IP To avoid infringement and to monopolize the production and sale of their inventions for financial gains and the enhancement of their scientific capabilities. EXAMPLES – Patent rights – Plant Breeders rights Intellectual property rights (IP-rights)

4. The basic principle of IP rights – To grant a monopoly to innovators - and in exchange – – To release the innovation/knowledge/cultivar to the public Consequences – Protection of the breeder / inventor which enables him to recover his investments – Potential profits will stimulate innovation (breeding, research and development) – Release of inventions / improved breeds is in the interest of industry and agriculture and the consumers. – Such protection makes that the inventor/breeder will be compensated by those who profit most from the new variety. Intellectual property rights (IP-rights)

5. The basic principle of IP rights An exclusive right is granted to the inventor to commercialise the invention Inventor Society Release intellectual property to society and to allow others to make further improvements Intellectual property rights (IP-rights)

6. Breeding – How to avoid illegitimate seed propagation – Solution I: Only sell the harvested product and keep = exclusive ownership of seeds – Solution II: Make contracts with growers and shops = exclusive ownership of market – Solution III: Plant Breeders rights = exclusive ownership of cultivar Intellectual property rights (IP-rights)

7. Breeding – How to avoid illegitimate seed propagation – Solution IV: industrial patent ? the mechanism of dependency (need a licence to use gametes?) disclosure of the invention (the smart trick can be repeated ?) The requirement of novelty (a fence around the field?) – Solution V: trade mark ? It may prevent unauthorized use of the denomination It cannot prevent multiplication and trading under a different name Intellectual property rights (IP-rights)

8. Requirements The variety has to meet the DUS criteria – Distinct – Uniform – Stable and – New – Variety denomination – Rightful person Plant Breeders Rights (PBR)

9. UPOV = UNION pour la Protection des Ostentions Vegetales (International Convention for the Protection of New Varieties Plant Breeders Rights (PBR)

10. Distinct – A matter of common knowledge…… – UPOV list of crop specific characteristics to describe the variety – A (morphological) characteristic is not necessarily of agronomical relevance – A public reference collection of all commonly known cultivars (including those without / with expired PBR) – ….provided that the variety is uniform and stable Uniform – No PBR for a mixture of varieties (multi-line mixtures) – Variation due to the mode of reproduction …. – Variation due to the mode of cultivation …. (quantitative traits, comparative field trials) Plant Breeders Rights (PBR)

11. Stability – The rearrangement of the genome can be preserved – A variety shall be deemed stable if its relevant characteristics remain unchanged after repeated propagation. – Mode of reproduction Selfers / vegetative crops / outbreeders / F1 hybrids Plant Breeders Rights (PBR)

12. Novelty – Similar to novelty criterion in patent law - items that commonly available cannot be monopolised. – Different to novelty criterion - the invention is not known - the variety was not on sold before (exceptions to allow multi year field trials) Variety denomination – The name is new and sufficiently unique – The name is not impolite / blasphemous Rightful person – The breeder or the breeding institute / company Plant Breeders Rights (PBR)

13. Scope of PBR – Protection against unauthorized multiplication = – Exclusive right (monopoly) for (re)production of propagating material or the conditioning for that purpose offering for sale, selling or marketing of propagating material exporting and importing of propagation material stocking of propagation material for any of these purposes. – Duration of the right is 20 years (potato, fruit trees up to 40 years) Plant Breeders Rights (PBR)

14. Scope of PBR – Exception: PBR may cover harvested material (e.g. flowers): the production and marketing (including import and export) of the harvested material need the authorization of the breeder if that material was obtained through unauthorized use of propagating material. Only when the breeder has had no reasonable opportunity to exercise his right in relation to the propagating material from which the harvested product was grown. Example: unauthorized multiplication of a protected variety in a country with no PBR system and the re-import of the cut flowers in a country where the variety is protected. Plant Breeders Rights (PBR)

15. PBR-20806 IP Breeders’ Exemption – use of a protected variety for breeding other varieties, and – it does not cover such other varieties. – The gene pool is unlimited – Patent law: Patents also cover inventions which are based on the patented invention. GMO’s with patented genes are not exempted Plant Breeders Rights (PBR)

16. Farmers’ Privilege – PBR covered only propagating material that was produced to be marketed. – Farmers could save seeds for their next crop. – The farmers’ privilege is important in countries where the farmers cannot afford to buy new seeds for each growing cycle. – UPOV convention was modified in 1991 : PBR includes saved seeds – UPOV allows member states to deviate from this principle within reasonable limits – The farmers’ privilege can be introduced on a national level. Plant Breeders Rights (PBR)

17. Essentially Derived Varieties (EDV’s) – A recent limitation of the Breeders’ exemption – A difference of only one or a few non-essential characteristics could result in granting PBR – Breeders’ exemption resulted into ‘piracy’ of successful varieties. Example: change flower colour of a potato variety Methods example: Genetic modification Methods example: mutation breeding Methods example: repetitive back-crosses in Selfers / F1 inbred lines. Plant Breeders Rights (PBR)

18. Essentially Derived Varieties (EDV’s) – UPOV: “ A variety shall be deemed to be essentially derived from an initial variety when it is predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety; it is clearly distinguishable from the initial variety and except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety. “ Plant Breeders Rights (PBR)

19. Essentially Derived Varieties (EDV’s) – One had in mind to cover the sports (mutants) of vegetatively propagated crops. – In ornamental crops mutation breeding is used to modify the colours of the flowers. Flower colour in potato is non-essential / Flower colour in ornamentals is an essential characteristic. Here it is questionable whether “the expression of the essential characteristics” of the initial variety is retained Plant Breeders Rights (PBR)

20. Requirements to obtain an industrial Patent The invention has to meet the following criteria – Inventive step – Utility – New and – Rightful person Industrial Patent

21. Inventive – An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. – State of the art: ALL written and oral information in public domain (including demonstration at fair, presentation, newspaper) Industrial Patent

22. New – An invention shall be considered to be new if it does not form part of the “state of the art” Utility for industrial application – An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. Industrial Patent

23. Excluded from patents: – Discoveries, scientific theories, mathematical methods, aesthetic creations, games and computer software are excluded from patents. – Plant or animal varieties or essentially biological processes for the production of plants or animals. This provision does not apply to microbiological processes or the products thereof. Eligible for patent protection: – Plant cell and tissue culture processes can be patented. DNA sequences and genetically modified organisms can also be patented. – The ongoing debate on the precise boundaries between PBR and Patent Law are beyond the scope of this course. Industrial Patent

24. Scope of protection – A product – A process (including the products directly obtained by such process) The patent holder has the exclusive right: – to apply the process. – to produce, use, sell, rent or store the product (this also applies to products from a patented process). – Duration of a patent:20 years from filing application – The rightful person :the inventor / company / institute Industrial Patent