WIPO-UPOV SYMPOSIUMOctober 25, 2002

UPOVUPOV

Rolf JördensVice Secretary-General

UPOV

LEGAL AND TECHNOLOGICAL

DEVELOPMENTS LEADING TO THIS SYMPOSIUM:

UPOV’S PERSPECTIVE

WIPO-UPOV SYMPOSIUMOctober 25, 2002

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INTRODUCTION

Importance of modern biotechnology in plant breeding

IPR protection is independent from commercialization procedures

Issues resulting from the differences between the scope and the exceptions of the patent and breeder’s rights systems

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TRIPS Agreement(Article 28)

UPOV(1991 Act – Article 14)

“1. A patent shall confer on its owner thefollowing exclusive rights:

(a) where the subject matter of a patent is aproduct, to prevent third parties not havingthe owner’s consent from the acts of:

“(1) [Acts in respect of the propagatingmaterial]

(a) Subject to Articles 15 and 16, the followingacts in respect of the propagating material of theprotected variety shall require the authorization ofthe breeder:

making,using,

(i) production or reproduction(multiplication), (ii) conditioning for the purpose ofpropagation,

offering for sale, (iii) offering for sale,

selling, or (iv) selling or other marketing,

Importing (v) exporting, (vi) importing,

for these purposes that product;” (vii) stocking for any of the purposes mentionedin (i) to (vi), above.”

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acts done privately and for non-commercial purposes

acts done for experimental purposes and

acts done for the purpose of breeding other varieties (breeder’s exemption

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Exceptions to the breeder’s right

Article 30 of the TRIPS Agreement states that: “Members may provide limited exceptions to the exclusive rights conferred

by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.”

Open multilateral treaties in the field of patents do not provide for the extent to which those limited exceptions may be permitted

Necessary to refer to national or regional patent legislation and to relevant jurisprudence

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Exceptions to the rights conferred by a patent

EDV concept maintains the access of all varieties for breeding

EDV does provide a mechanism to ensure a suitable reward for plant breeders

UPOVUPOVBalancing the reward to the

respective rights holders (essentially derived varieties)

purpose of the patent is to protect the developer of the genetic element

purpose of the plant breeder’s right is to protect the developer of the unique combination of plant germplasm forming the variety

exercise of breeder’s exemption constrained due to lack of similar provision in patent system

UPOVUPOVThe ability to exercise the breeder’s

exemption in the case of varieties containing patented inventions

Article 7 and 8(2) of the TRIPS Agreement

State could be able to implement Article 30 in a way that protects the breeder’s exemption

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PROVISIONS WITHIN THE TRIPS AGREEMENT WHICH MIGHT ALLOW THE

PRESERVATION OF THE BREEDER’S EXEMPTION

rapid progress in the development of genetic engineering

increasing number of plant varieties will contain patented inventions

practical consequence: breeder’s exemption could be lost or greatly weakened

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CONCLUDING REMARKS

how the breeder’s exemption could be preserved ?

a “burning issue”

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