STT2073 Plant Breeding and Improvement Intellectual Properties.

STT2073Plant Breeding and Improvement

Intellectual Properties

The ownership of PROPERTY

Physical (tangible) property = Private rights

Intellectual property = Intellectual property rights

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)

• 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.


• 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


• 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


• 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


• Requirements

The variety has to meet the DUS criteria– Distinct– Uniform– Stable

and– New– Variety denomination– Rightful person

Plant Breeders Rights (PBR)

DUS criteria Versus Mode of reproduction

Distinct

Uniform

Stable

Vegetatively propagated crops

variety must differ clearly in at least one characteristic

A variety equals to one heterozygous genotype

Vegetative reproduction does not change the genotype

Selfers


A variety equals to one homozygous genotype

A pure line will produce identical offspring upon selfing

Outbreeders

It is essential that the UPOV characteristics are sufficiently uniform within a variety. Only then the analysis of distinctness is possible.

A variety equals to a population of different heterozygous genotypes. Only for UPOV characteristics the variety is uniform.

Genetic drift must be avoided. Selection is required during every cycle of propagation

F1 hybrids


A variety equals to one heterozygous genotype

Stable propagation of pure inbred lines is required

UPOV = UNION pour la Protection des Ostentions Vegetales(International Convention for the Protection of New Varieties


• 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)


• 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


• 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


• 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)


• 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.


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


• 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.


• 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.


• 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. “


• 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


• Requirements to obtain an industrial Patent

The invention has to meet the following criteria– Inventive step– Utility – New

and– Rightful person

Industrial Patent

• 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

• 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

• 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

• 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

STT2073 Plant Breeding and Improvement Intellectual Properties.

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