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UPOV. WIPO-UPOV SYMPOSIUM October 25, 2002. UPOV. WIPO-UPOV SYMPOSIUM October 25, 2002. LEGAL AND TECHNOLOGICAL DEVELOPMENTS LEADING TO THIS SYMPOSIUM: UPOV’S PERSPECTIVE. Rolf Jördens Vice Secretary-General UPOV. UPOV. INTRODUCTION.

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UPOV

WIPO-UPOV SYMPOSIUMOctober 25, 2002


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UPOV

WIPO-UPOV SYMPOSIUMOctober 25, 2002

LEGAL AND TECHNOLOGICAL

DEVELOPMENTS LEADING TO THIS SYMPOSIUM:

UPOV’S PERSPECTIVE

Rolf JördensVice Secretary-GeneralUPOV


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UPOV

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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UPOV

Exceptions to the breeder’s right

  • 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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UPOV

Exceptions to the rights conferred by a patent

  • 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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UPOV

Balancing the reward to the respective rights holders (essentially derived varieties)

  • EDV concept maintains the access of all varieties for breeding

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


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UPOV

The ability to exercise the breeder’s exemption in the case of varieties containing patented inventions

  • 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


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UPOV

PROVISIONS WITHIN THE TRIPS AGREEMENT WHICH MIGHT ALLOW THE PRESERVATION OF THE BREEDER’S EXEMPTION

  • 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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UPOV

CONCLUDING REMARKS

  • 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

  • a “burning issue”

  • how the breeder’s exemption could be preserved ?



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