A long time has passed since the last blog update. This is not because there is nothing new on plant variety protection. On the contrary, important news have populated the IP blogs. The most famous is certainly the EPO Enlarged Board of Appeal decision of 25 March 2015 on broccoli & tomatoes: http://www.epo.org/law-practice/case-law-appeals/eba/number.html
The industry must have positively accepted this decision since it confirms the patentability of plant material obtained by essentially biological processes as long as plant material is new, has an inventive step and industrial application. In a very long and well-reasoned decision, the EBA judges explained why exclusions from patentable subject matter should be narrowly interpreted as well as the conceptual distinction between object and scope of protection. Social movements against patenting of life forms are not content with the outcome of the EPO decision. In the current case, the issue at stake is the patentability of our daily food. At present, it seems that the only solution available to social groups against patents on life form is that of lobbying in their national parliaments to change the law.
Another news that came up in March was the industry proposal for a harmonized filing system for plant variety protection discussed during the 23-27 March UPOV meeting. One of the positive aspects of this proposal is facilitated registration of plant breeder’s rights. Similarly to European patents, breeder’s rights will be granted by a central authority instead of going through national systems. But the creation of a central authority will undoubtedly involve financial and organizational costs. It appears thus that this proposal will not be imminently implemented.
Always in March, CIOPORA voiced concerns on the scope of breeder’s rights: http://www.ciopora.org/fileadmin/assets/pageDownloads/CIOPORA_in_Media/2015_03_Scope_of_Right_a_quest_for_harmonization_FCI.pdf
A point of law that concerns the breeders of ornamentals and fruit crops is the lack of harmonization of “harvested material”. This seems to be an interesting issue to be further investigated…
To conclude with March: The Advocate General of the Court of Justice delivered his opinion on the Case C-242/14: http://curia.europa.eu/juris/liste.jsf?num=C-242/14&language=en
The Advocate General clarified that the equitable remuneration in accordance with Article 14 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community Plant Variety Rights is to be paid 4 within a period beginning on the date on which the farmer actually seeded the product of his harvest and expiring at the end of the marketing year in which that use took place.
In May, an interesting and informative piece on DNA fingerprints was published by APREBES: http://apbrebesweb.mayfirst.org/files/seeds/Briefing%201,%206May2015_1.pdf
DNA fingerprints are used in private dispute settlements, but not yet in courts. APREBES explains why and discusses some implications of the new technology for least developed countries and IPRs on plant varieties.
The blogger feels obliged to apologize for this late updates. The last months have created opportunity for reflection on the congruence between the title of the Blog and its contents and purpose. The blog has received little attention among plant variety students. Changes may come in the coming weeks.
THE DISTINCTNESS CRITERION IN PLANT VARIETY PROTECTION: AN ONGOING DEBATE
12 February 2015, 10.15 am
“The PBR system should foster the breeding of the first blue geranium, and not only of the twentieth red one”. This sentence quoted by the Secretary General of CIOPORA, Dr. Krieger, in the FloraCulture International highlights the debate on the adequacy of the current plant variety protection system. Dr. Krieger questions the “distinctness” requirement in the plant breeder’s rights system and calls for broadening the minimum genetic distance between varieties and adopting a crop-to-crop approach. You may find his interview at the following link: http://www.ciopora.org/fileadmin/assets/pageDownloads/CIOPORA_in_Media/2015_2_FloraCulture_International.pdf
Although the concerns of CIOPORA are limited to the ornamental and fruit sector, the continuous proposals of breeders on genetic distance as well as controversial legal cases (at national & European level) both on the concept of “distinctness” and “essentially derived variety” suggest that the current system needs to offer more legal certainty, at least in the ornamental and fruit sector.
COMMON CATALOGUE FOR PLANT VARIETIES – UPDATED
5 February 2015, 8.30 pm
Do you know that plant varieties in EU countries have to be registered in specific EU Common Catalogues (for commercialization purposese) even before being protected with IP rights? If you are curious about the varieties that could be protected through plant breeder’s rights in Europe, you may want to have a look at the updated catalogues for vegetable and agricultural species:
GMO OPT-OUT FOR EU MEMBER STATES: RELEVANT FOR INTELLECTUAL PROTECTION?
14 January 2015, 1:20 pm EDT
Several genetically-modified crops have been approved for cultivation in Europe (http://www.gmo-compass.org/eng/gmo/db/), but they may not be grown in all of the EU countries. This is what the European Parliament decided yesterday by allowing single Member states to ban GMO crops on public policy grounds (health, environmental, socio-economic impact, contamination issues, country planning etc.). This new legislation will come into force in Spring 2015 and you can find relevant info on the ban here: http://www.europarl.europa.eu/news/en/news-room/content/20150109IPR06306/html/Parliament-backs-GMO-opt-out-for-EU-member-states
Are there implications for IPRs on plant varieties? Since GM crops are usually accompanied with patent protection on the new technology they embed, there seems to be no interest in obtaining a patent in those countries where a GM crop or trait is not allowed for cultivation. Will it be easy for the patentee to take a decision on this matter? Probably not. If countries take a decision on the ban after the patent has been granted, it will not be easy to predict whether a patent needs to be obtained or not. Moreover, patentees have to consider national bans if they apply for the future unitary patent.
PUBLIC DISCUSSION ON BIOPATENTS – SEEDS AS COMMODITY AND AS PUBLIC GOOD
6 January 2015, 7.30 pm
For those who can understand good German, there is the opportunity to attend an interesting discussion on different aspects of patentability of plant varieties in Tutzing. Between 1 -2 March 2015, professionals from different disciplines will deliver presentations in this event organized by the TTN Institute in Munich & the Evangelical Academy in Tutzing. For further details: http://web.ev-akademie-tutzing.de/cms/index.php?id=576&lfdnr=2081&part=detail
NEW USPTO INTERIM GUIDANCE ON SUBJECT MATTER ELIGIBILITY
2 January 2015, 10.30 am
Following recent court decisions on subject matter eligibility, the USPTO has issued a new Guidance on Subject Matter Eligibility in order to assist patent examination in determining whether claimed subject matter is eligible under 35 U.S.C 101. The Guidance, available online at http://www.uspto.gov/patents/law/exam/interim_guidance_subject_matter_eligibility.jsp , may be commented until 16 March 2015.
The new USPTO Guidance on Subject Matter Eligibility is relevant for plant varieties to the extent that it modifies rules on inventions related to natural laws and products. For an understanding see Example 2 of ‘Nature-Based Products’: http://www.uspto.gov/patents/law/exam/mdc_examples_nature-based_products.pdf
1 January 2015, 2.30 pm
An international filing system for plant breeder’s rights has been proposed at the 47th ordinary session of the UPOV Council on October 2014. At the moment, this remains only an idea. The advantages of having an international filing system need to be compared with the drawbacks related to the quality of DUS tests.
UPOV Press Release 95: http://www.upov.int/export/sites/upov/news/en/pressroom/pdf/pr95.pdf