Behind the scenes of the Community Plant Variety Office (CPVO) a technically and legally complex protection system exists, but for its audience of breeders and growers, the facts, in general, are somewhat simpler to understand. Moreover, while the CPVO concentrates on creating an environment to reinforce the rights of breeders, CPVO President Bart Kiewiet says, “Growers are simultaneously supported in their quest to obtain better performing varieties that, in the case of ornamentals, fulfil end consumer wishes”. As an example, he refers to a recent seminar in Antalya, Turkey, where the atmosphere clearly indicated that the regions growers, primarily producing flowers for export, were keen to have access to the newest and best varieties. These growers are not unique. Their involvement in international trade, supplying consumer markets increasingly intrigued by changing fashions, is automatically testing their ability to provide products asked for by the consumer. Kiewiet says, “Breeders are willing to sell their modern varieties to suit the growers needs, but their survival depends on receiving a return on their own investments.” This is the critical link between a system for the protection of new varieties and the interest of growers. As an extra point of interest about the value of protecting research, it can be worth reflecting momentarily on the lesson learnt in Italy back in the sixties: In Italy it was considered to be unethical, politicians said, to patent medicines. The consequence was that all research related to new medicines stopped and foreign companies refused to export new medicines to the Italian market. During this period, patients were not able to receive new medicines. After long, ethical discussions, opinions changed and patent rights on medicines were re-introduced. Today, research into new medicines is again carried out in Italy and all Italians have access to modern medicines.
What are the facts? The CPVO has been in operation since 1995. It grants Community plant variety rights to any individual or company which either has a permanent residence in the EU or has a nominated EU agent and is itself from a UPOV (International Union for the Protection of new Varieties of Plants) member state. Applications can be made in any of the EU official languages. Once the application has been studied to check that the variety is in fact novel, the CPVO arranges for a technical examination of the three key conditions: distinctness, uniformity and stability (DUS). Passing of the DUS test and agreement on the variety denomination results in the grant of title whereby the CPVO issues the title holder with a certificate and a copy of the official variety description. Kiewiet says, “Our impression is that from among the main cut flower species (e.g., roses, chrysanthemums etc.), nearly 100% of the varieties are protected.” His ambitions when starting as CPVO President 10 years ago was to receive 2,000 applications on an annual basis. In 2005, the total number of applications reached 2,733 with ornamentals representing 65%, agricultural 20% (cereals, potatoes etc.), vegetables 10% and fruit/ fruit trees 5%. He sees that the Community plant variety rights have taken over the role of national systems within the European Community to a large extent. He believes only niche products are directed into national systems, with the exception of the bulb industry: “It is also financially attractive for a breeder to make an application for Community rights when protection is being sought in more than two countries.” He adds, “It is a fantastic tool to protect varieties since breeders are relieved from the time consuming and costly procedures involved in making the same application in different countries”
The management of the plant variety protection system, which was originally proposed by the Community to stimulate the free circulation of plant material within the EU, does not conclude the CPVO’s commitments to the horticultural industry. Kiewiet says, “We also help breeders within the EU to protect their varieties outside of the member states.” In recent weeks, for example, a memorandum of understanding has been signed in Japan. Kiewiet explains that the memorandum allows the Japanese to buy examination reports to be used in their own protection system and additionally, outlines the intention to cooperate in the review of examination standards. The latter developments aiming towards future use of Japanese reports by the CPVO. In a similar manner, countries such as Turkey, Colombia, Ecuador and Kenya are explained to regularly buy examination reports for use in their own protection systems. In the French speaking West African countries, the CPVO is also actively advising on a project to introduce breeder’s rights.The fact that the CPVO is well imbedded in the UPOV organisation is illustrated by their cooperation in the area of the checking of proposed denominations for varieties that are candidate for plant variety protection. The two organisations cooperate to collate the database of over 400,000 denominations of plant varieties collected from databases all over the world. Furthermore experts of the CPVO contribute actively in the framework of UPOV to the development of new test guidelines.
There are some rules to make the system work. Breeders can only protect varieties that meet the DUS requirements. Growers must conclude license contracts, which stipulate that the breeders have given authority for commercial exploitation of the protected varieties.
Within the EU the Community plant variety rights are relatively clear in that propagated material of a protected variety can only be commercially exploited under licence from the breeder. Outside the EU, Kiewiet is clear in his message to growers when he says, “A variety protected in the EU can perhaps be commercially exploited in your own country without authorization of the right holder, but the harvested product cannot be freely exported to an EU member country.” He takes an example of a rose variety protected in the EU but where the breeder, at his own risk, does not make an application for protection elsewhere. A grower (outside the EU) propagates and exports the harvested cut roses to the EU. Kiewiet says, “My opinion is that the breeder cannot exercise his/her rights in the country of origin, but the breeder can exercise his rights as soon as the harvested product enters the Community.” There have been examples of this situation, e.g. cut flowers from Turkey being ceased at the border when entering Hungary, and the seizure of illegal roses from Brazil when entering Portugal due to Nirp International’s monitoring activities.
This is a clear reminder of a fundamental rule: while essentially the Community protection applies to propagating material, if the breeder is not able to exercise his/her rights, either because the variety is not protected in the country of production or the grower is not willing to pay the royalties, then the breeder can exercise his rights with respect to the harvested material when imported into the EU.
Kiewiet believes it is certainly not correct to deny that around the world there is illegal production, but at the same time the alertness of breeders and their capabilities in tracking their own varieties sustains a level of business confidence. A case in point remains that tracking varieties is very hard and expensive; a breeder often needs the support of a specialised, professional company.
There will also always be the exceptions to the rule and China is an example where breeder’s rights issues are commonly highlighted as a point of concern. He says, “If China is compared to production regions where sizeable operations dominate, e.g. Colombia and Kenya, then we see a dramatic difference since family enterprises are still the norm. Breeders are confronted with the difficult task to keep control in this situation; the sensitivity of the situation exaggerated by the fact that China finds itself still in the beginning phase of its appreciation for intellectual property rights in general and plant breeder’s rights in particular.”
The subject of breeder’s rights also becomes very sensitive when an application associated with a mutation comes under discussion, particularly if the question pertains to a potential, essentially derived variety (EDV). Kiewiet says, “A mutation, as such, can be protected if it is distinct from the initial variety. Among vegetatively reproduced varieties, a mutation is genetically to a very large degree identical to and differs from the ‘mother plant’ mainly in terms of its morphological characteristics. The term EDV was established in 1991 under the new UPOV convention where it is stated, that an EDV can be protected by the breeder in question, but for its exploitation the authorization of the original breeder is needed; there are therefore in fact two plant variety right holders.” The difficulties surrounding the identification of a potential EDV such as a mutation distinct from the original variety has inspired an initiative by the international association of breeders of asexually reproduced ornamental and fruit varieties (CIOPORA) to develop guidelines for breeders. Kiewiet says, “If these guidelines are accepted by breeders worldwide, judges involved in breeder’s rights cases will be inclined to take the EDV guidelines seriously. A common position between breeders in the seed industry, organised in the International Seed Federation (ISF), and the breeders of asexually reproduced ornamental varieties, would be very welcome. Further, since it is important that breeders and growers are of a similar opinion, hopefully the International Association of Horticultural Producers (AIPH) will also find the guidelines acceptable.” Huib Ghijsen from the Intellectual Property Committee of the International Seed Federation agrees that it would be better to have a common position on EDVs. He comments that despite the technical differences between seed crops and asexually reproduced ornamentals, policy and legal rulings should be strengthened for breeders in general. The ISF is in communication with CIOPORA over its proposed guidelines but Ghijsen indicates that it is too early to release an official statement on the outcome of their discussions.
Further on the subject, ‘scope of protection for ornamentals’, however, and expanding on the aforementioned ‘fundamental rules’, Ghijsen brings attention to what he sees as a very important breeder’s rights case held in the German Supreme Court last February. Harvested plants of a Calluna vulgaris variety, protected only in Germany but which originated from illegal propagation in France, were being sold in a German garden centre. The court reasoned that since the breeder could not exercise his rights on the propagating material in France, he could exercise his rights on the harvested material in Germany. Ghijsen explains that the judges decision in this particular case helps to clarify what he believes is a rather ambiguous statement in the UPOV 91 ruling concerning the extension of breeder’s rights from propagated to harvested material: the breeder must exercise his/her rights at the earliest possible moment, which could mean that breeders were obliged to protect their varieties in all UPOV countries where their varieties might be produced. Ghijsen says, “It is even not an easy task for a breeder to prove in court that he had no reasonable opportunity to exercise his rights on the propagating material.” The ISF is formally notifying UPOV of this court decision and hopes that, in time, the Council will acknowledge that breeders should not have to protect varieties in all countries.
All applications welcome
To end it is interesting to analyse the origin of applications in the field of breeding creativity (Table 2). Kiewiet says, “Traditionally, Europe, the USA and Japan have been the major contributors to breeding developments, but emerging countries, e.g. Taiwan, are recognised to be making a relatively important number of applications to the CPVO. Creativity is in the interest of all parties involved in the ornamentals industry and we only welcome this trend.”
*For those who do business in the South of Europe, the Third Seminar on Enforcement of Plant
Breeder’s Rights in the European Community, organised by the CPVO, shall take place on the 22nd and
23rd February 2007 in Madrid, Spain. The seminars aim at sharing information and experience relating
to the enforcement of plant variety rights in France, Spain and Portugal.*To improve the position of
the growers in their relations and negotiations with breeders AIPH supplies a checklist to make a license
agreement for the commercial exploitation of plant varieties. The checklist explains definitions and the
different types of legislation used in contracts. This checklist is available on the AIPH website:
www.aiph.org under Novelty Protection.