Plant varieties as an IP right: Introduction


The world of IP is not only trademarks and patents but it includes other rights such as plant varieties rights. This article provides an introduction to the system of plant variety protection and shows its importance which is not always perceived by the general public at full extent.



A Peculiar IP Right


Plant variety right (PVR), also called plant breeders’ right (PBR) is a specific form of intellectual property right that grants a breeder, a person who breeds or discovers and develops a new plant variety, an exclusive right over its “creation”, preventing any third party from commercially exploiting it without his or her consent. Such a right presents similarities with other forms of intellectual property protection. PVRs are granted for a specific territorial area, expire after a certain amount of time, and can be subject to further limitations if certain conditions established by law are fulfilled.


The most distinctive feature of PBRs with respect of other IP rights is that an exclusive right is granted over a living material. This aspect was the source of debates back in the days. It was argued that no recognized form of intellectual property, including patents or utility models, had been conceived to be suitable for a living material. This lack of legal IP schemes for plant varieties, particularly in patent law, was due to the assumption that industrial protection can embrace only inert matters[1].


The inappropriateness of the juxtaposition of a living matter and industrial protection was unveiled by the disruptive discoveries in the field of molecular biotechnology which, starting at the beginning of 1900, increased sharply during the last 20 years resulting in an industrialization of agricultural methods. New varieties are the outcome of a complex and time-consuming research carried out by the most innovative companies and research institutes in the world.


Such new varieties show improved organoleptic properties and provide benefits to the society, a progress that can be continuously enjoyed only by granting a return on the investment to companies which invest time and money in building up costly breeding programs. The purpose of granting plant breeder rights is precisely this, granting a reward for the creation of new protected varieties, ensuring the continuous circle of innovation.


Justification for the plant variety protection


A PBR is essentially a monopoly, in the form of an exclusive right, over the exploitation of a new plant variety that has its justification in the essential role that plant breeding has been playing for the development of our society from immemorial time. Almost all fruits, ornamentals, vegetables, agricultural crops stored in the supermarket shelves are the outcome of centuries of breeding practices and they have been experiencing all sort of alterations, mutations and modifications in order to be rendered tasteful or simply edible.


For instance, the maize that we know today is a plant that has gone through so many modifications so that its ancestor, called teosinte, looks barely like the contemporary plant. Indeed, the teosinte is a grass and its fruits are nothing like the big, fleshy, yellow kernels to which we are all familiar. They have a completely different appearance. Teosinte was discovered by the indigenous people of Mesopotamia who worked together to produce improved varieties choosing the best traits and selected plants. With time and patience, they obtained the modern corn, giving us a delicious crop and all the food derived from it [2].


Thus, either by means of conventional breeding methods (cross and selection) or by applying modern biotechnology techniques (genetic engineering, genome editing) the tremendous progress in the agricultural productivity in various parts of the world has been largely based on the possibility to cultivate and commercialise new and improved plant varieties which provide all sort of traits, from higher quality to better appearance, resistance to pests and improved yields.


Today, given its industrialization, breeding new varieties can represent a tool to face phenomena on a larger scale, having an impact on addressing climate change issues, limited farmland resources, food deficiencies in developing countries, improvement of poor rural areas of the world.

General characteristics of the plant variety right


As mentioned above, the PBR is an exclusive right that rewards the breeders allowing them to economically exploit their variety, recoup the investment and continue to breed new varieties. By providing an economic incentive to the breeding companies, the investments in innovation tends to spread out and the society as a whole can take advantage of it. Hence, the exclusive right is shaped and the required balance between the interests of those who invest and create and the society in general is established.


Firstly, the right is temporary since the variety enters in the public domain once the time established by law for protection expires, being from this moment freely exploitable by anyone. Secondly, the right suffers exceptions and limitations to comply with other rights.


For instance, the cornerstone for successful innovation in plant breeding is the breeders' exemption. This exception "drills a hole" in the exclusiveness of the right since it allows other breeders to use protected varieties to breed new exploitable varieties freely and has no equivalent under patent law where the free use of protected industrial creations is allowed for experimental/research purposes. The breeders' exemption recognises the cumulative character of plant breeding innovation where breeders build on other breeders’ work.


Another basic feature of the PVR system is the farmers’ privilege. The farmers’ privilege allows farmers to save seeds of protected varieties for their own use.


An overview of the international legal framework


The leading international systems that provide rules for the protection of plant varieties are the International Union for the Protection of New Varieties of Plants (UPOV, which enacted the UPOV Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) adopted under WTO law.


The UPOV treaties regulate plant variety protection using a sui generis system, specially drafted to meet the needs of plant breeders. The TRIPS agreement, adopted in 1994 as a treaty administered by the WTO, is the first and only IP treaty that seeks to establish universal, minimum standards of protection across the major fields of intellectual property, including patents, copyright, trademarks, industrial designs, integrated circuits and trade secrets. However, there is only one article dedicated to plant variety protection.


Having been ratified by a large number of countries, the TRIPS agreement has been of striking importance for fostering the adoption of plant variety protection regulations. In addition, while the provisions of the TRIPS agreement with regard to other IP rights generally foresee as a mandatory requirement in order to join the treaty that the Contracting Parties shall comply with the main legal instruments already in force in the respective fields (for instance, in the case of copyright, Member States can ratify the TRIPS agreement only where they have already joined the Berne Convention on the protection of intellectual and artistic creations), this is not the case of plant variety rights. Indeed, mandatory compliance with the UPOV system is not required to join the TRIPS agreement, meaning that countries have great flexibility in choosing the intellectual property regime applicable to plant varieties and in shaping their own rules.


In particular, they can opt for the UPOV system, patent rights, implement their own sui generis system or regulate plant varieties by both patents and sui generis right. The UPOV system has been extremely useful to reach minimum agreed standards for protecting plant varieties, however, its flexibility gives rise to a legal framework that is only partially harmonized.


For instance, the US regulates plant varieties using both patent and plant breeders' rights; other countries adopted legislation mirroring the UPOV system. Developing countries like India arranged their own sui generis regulation in order to strengthen the rights of farmers. Most European states and the EU itself have joined the UPOV convention and their system of protection follows the sui generis UPOV scheme. In particular, in Europe, national legislations granting national PBRs are coupled with a centralised system managed by a specific body, the Community Plant Variety Office (CPVO), the agency of the European Union (EU) responsible for the management of the Community plant variety rights, which grants one title valid and enforceable in all EU member states.


What is a plant variety?


Up to now, we have dealt with the conceptual justifications for PVR and provided a quick idea of the international legal framework. However, in most cases, in order to properly approach plant variety protection, an answer should be given to a more basic question: What is, indeed, a plant variety?


According to Council Regulation No 2100/94 on Community plant variety rights “'variety' shall be taken to mean a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

- defined by the expression of the characteristics that results from a given genotype or combination of genotypes,

- distinguished from any other plant grouping by the expression of at least one of the said characteristics, and

- considered as a unit with regard to its suitability for being propagated unchanged.”


In order to clarify such a technical and complex definition, we can use the concept of natural kingdoms. All living organisms can be grouped into 6 different biological kingdoms. We as humans belong to the animal kingdom, plant varieties belong to the plant kingdom. A variety is nothing but the most specific description of an organism which belongs to the plant kingdom. For instance, “Fuji”, “Gala”, “Golden delicious” are all different varieties of the Specie Apple (Malus Domestica is the scientific name) that, in turn, belongs to the Genus Malus of the family of Rosaceae, of the kingdom of plants.


Varieties are distinguished among each other on the basis of their external characteristics (colour, shape, dimensions), which results from a difference in their genotype. At the same time, varieties belonging to the same specie share a certain amount of attributes such as the colour of the flowers, the altitude of the trees from which they grow, the shape of the leaves and the shape of the fruit itself. For instance, all the Apple varieties included in the Malus Domestica are edible fruits adapted to consumption and their variations in terms of shape and tree structure are limited, whereas varieties belonging to the species Malus Bacata are used as decoration and they are rather small and non-edible.


Conclusions


If we scratch the surface and go beyond complex definitions, we will find out that plant varieties have always been part of human evolution and development and are much closer to us than we might think at a first glance. Indeed, almost all the fruits and vegetables that enrich our diets consist of improved varieties obtained using plant breeding techniques across the centuries.

However, plant breeding benefits are not limited to improved food quality and taste. Agriculture and breeding methods have been vital for the sustainment of human beings before the advent of the industrial revolution and today, with the development of, among others, molecular biotechnologies, they are an industrialised tool of utmost importance.


Complex and large-scale breeding programs for the development of new varieties can be designed today which can provide support to a global and comprehensive management of the most striking crisis of our time. For instance, in the following years, it is expected that the continuous progress in genetic engineering will lead to breed varieties of plants able to contain all the nutrients that a human being needs to include in his or her diet, thus it may help to solve the food crisis in the least developed countries. Moreover, varieties resistant to pests and diseases can reduce the amount of pesticide used by farmers, crops that are less dependent on water supply for their survival can be used to foster agriculture production in less developed countries and in those affected by disruptive climate changes.


Giulio Serafino


[1] L.C. Ubertazzi, Commentario breve alle leggi su proprietà intellettuale e concorrenza, Cedam, 2017.

[2] Janaki Jitchotvisut, The fascinating origins of 14 popular vegetables, October 2018, available at www.insider.com.

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