Sent: 09 May 2001 12:16
To: '[email protected]'
Subject: Re: Plant variety protection
My name is Pierre Roger, I am in charge of IP for a French seed company.
Just a few words about the last contributions and especially about the remarks made about Plant Breeder's Rights (PBR).
Before that, there is a general comment that I would like to address: maybe
we have to recall that
1) Intellectual property rights (IPR) are time- and space- limited (worldwide and perpetual patents, trademarks or PBR do not exist and will never exist, it is just contrary of the IPR spirit),
2) that a patent application is first a scientific disclosure contributing to human knowledge and that sometimes this application will become a granted patent where the actual right is defined,
3) that the limited monopoly of a patent is defined by the claims not by the description. As for any right, legal basis (laws, conventions, etc.) gives only little information if an actual assessment of its real impact is not made. For example, where do most of the "biotech patents" exist ? India, Nigeria, developing countries ? No. Most of them (not to say all of them) only exist in US, Canada, Europe (EPO), Japan and Australia where there is a legitimate wish of financial return. But their scientific content is available for all humans worldwide and free of use in all the other countries.
There is a second example that I would like to draw, the International Service for the Acquisition of Agri-biotech Applications (ISAAA) Freedom To Operate (FOT) study about Golden Rice is very interesting, but remember that most of the cited patents in this study are PCT applications which are not reflecting actual rights, but only potential rights if patentees are ready to spend million of dollars to extend and to defend their patent in those countries. [PCT refers to the Patent Cooperation Treaty. The PCT facilitates patent applications in multiple countries, but does not furnish an international patent...Moderator]. I will be very interested to read a renewal of this study in five years time to look at the changes of the FTO situation. I am pretty convinced that most of these applications in the developing countries will not exist anymore. [The document referred to is Kryder, R. David, Stanley P. Kowalski, and Anatole F. Krattiger. 2000. The Intellectual and Technical Property Components of pro-Vitamin A Rice (GoldenRiceTM ): A Preliminary Freedom-To-Operate Review. ISAAA Briefs No. 20. ISAAA: Ithaca, NY. 56 p. http://www.isaaa.org/publications/briefs/Brief_20.htm ...Moderator]
One additional comment about limiting patentability of biotech inventions: as a citizen I am very suspicious of any limitation in this domain because a patent has never been an authorization for commercialization - those aspects are ruled by other laws, authorities - but a patent provides transparent information about scientific knowledge and by limiting patentability I fear that transparency will be lost. Also, who are the patent attorneys that will decide if an invention complies with public order and morality ? They are of great morality for sure, but to decide in the ethical domain is a political issue, not a technical one. Then democracy has to take its responsability to decide if a research is acceptable or not, patents will never resolve this issue.
As a seed company involved in plant breeding for more than 200 years for several of our affiliates, we strongly support PBR as developed by the International Union for the Protection of New Varieties of Plants (UPOV) Convention since 1961 and periodically renewed by additional acts (1978, 1991). This international convention is, today, almost fifty countries working together to implement PBR on the same basis and practices. The UPOV Convention was created in the late fifties on consensual discussion between national and international authorities and breeders to create a well adapted right to protect plant varieties. To summarize the basic concept of such a right, it is important to say that the UPOV Convention protects plant variety and plant variety only (no protection of breeding methods or processes or genetic resources, I will come back later to this last and crucial item). A plant variety is defined as an unique combination of expressed traits and, as previously said [see message by Sunil Archak, 7 May...Moderator], must be new, distinct, uniform and stable of any previously known varieties to be protected under UPOV criteria. If meeting the UPOV criteria, only this combination is protected - none of the individual traits that are part of this combination are. Those traits are defined for each species, by the UPOV technical committees as reflecting genetic variability within this species (it is what we call the Distinctness, Uniformity and Stability (DUS) test guidelines, there is more than 150 guidelines existing today and publicly available at the UPOV website - http://www.upov.int/ ).
One of the crucial bases of the UPOV Convention is the Breeder Exception giving to anybody an irrevocable right to use a protected plant variety as an initial source of variation for creating a new plant variety. This provision exists since the first version of the UPOV Convention (1961) and is crucial, because it gives access to anybody to the genetic resources content in protected plant variety. By using another system of protection of plant varieties, this access does not exist and would impair the innovation possible through plant breeding.
There is more to say about the UPOV Convention, farm save seed provisions, essentially derived varieties, etc. but to respect this forum rules I will stop here.
Pierre Roger, France
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