The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Sunday, 15 November 2015

Fruit threatened by patents; patents threatened by politican: where will it all end?

From New Europe comes "European fruit and vegetables threatened by patent", a powerful statement by Annie Schreijer-Pierik (a member of the European Parliament and a Dutch member of the EPP Group). She calls for a shift away from patent protection and more use of plant varieties rights.  This is what she says:

Hands off our catnip!
It was quite a shock for plant breeders when the European Patent Office decided this spring to allow the patenting of natural plant properties [this Kat thinks this is a reference to the Enlarged Board of Appeal decisions in cases G 2/12 (Tomatoes II) and G 2/13 (Broccoli II), noted by fellow Kat David in "Broccoli & Tomatoes, part deux: more from the Enlarged Board", here]. Since then, multinationals such as Syngenta and Monsanto have bought so many patents that we are on the brink of a dangerous monopoly of plant patents.

Together with my colleagues from the Group of the European People‘s Party (EPP Group) in the European Parliament, I will table a Resolution in which we will call on the European Commission to finally tackle this problem.

The biggest problem created by the patenting of plant characteristics is that further innovation is blocked in the breeding sector [is there any evidence to support this assertion?]. The development of new plant varieties stops [does this mean that Monsanto, Syngenta and the other multinationals are no longer competing with one another]. After all, the holder of a patent has the exclusive right to a certain plant characteristic, so other breeders cannot use that property without permission and financial compensation [if that were the case, would we not have an instance of "essential facilities" with the European Commission already getting excited about this?]. This is a serious matter because by doing so, big companies are now pushing small businesses out of the market. 

Of course, the large breeders argue that they need a patent to recoup huge investments. These investments are on average 15% to 25% of their turnover. This is indeed high, but the investments do not necessarily have to be recouped through patent law. Plant Breeders‘ Rights (PBRs) have been offering plenty of alternatives for already more than 60 years [it seems to this Kat the PBRs are relatively little used, maybe because of the criteria which they lay down for obtaining protection]. 

PBRs give a breeder 25 years to exploit the exclusive right to a new breed [longer than for patents]. Simultaneously, other breeders are allowed to develop already-existing plant varieties [but patent law allows others to carry on doing anything that was already existing too]. PBRs have ensured at the same time that The Netherlands, which counts many small breeders, could become a major player on the international market for plant breeding. Moreover, the sector has made a major contribution to an increase in the productivity of the agricultural and horticultural sector.

In view of a growing world population, driving innovation in the breeding industry is more important than ever. Only through the development of new plant varieties can food security for the estimated 9 billion people of 2050 be guaranteed, especially since varieties have to be resistant against new diseases and pests and also must adapt to the changing climate.

A monopoly of plant breeding certainly affects jobs and growth in Europe. The plant breeding industry now represents a large economic value, mostly in France, Germany and The Netherlands.

It is high time to deal with the plant patent problem. The European Parliament, led by the EPP Group, tabled a Resolution back in 2012 in which the European Commission and Member States were urged to give priority to the issue. So far, little has been done to this end. With the recent ruling of the European Patent Office, the urgency is increasing.

Member States concerned are proposing different solutions. France would prefer to limit patentability. To achieve this, an adaptation of the European patent law would be required. The Netherlands on the other hand wants to extend the breeders‘ exemption. Based on a limited breeding exemption, patented material can be used without the permission of the patent holder, but commercial operation of the new varieties obtained is just not possible.

As long as the Ministers in the Member States do not agree, a solution seems unfortunately far away.

It is therefore important that the European Parliament calls, in the strongest terms, on the European Commission to take action. We urgently need a European approach to give a future to the hundreds of family-owned farms in the breeding sector and to maintain the high level of know-how in the EU breeding business.

I therefore call on the Commission, as well as the Dutch 2016 EU Presidency, to align the Ministers in the Council. This will be of crucial importance for the future of fruit, vegetable and other plant breeders.

Without political intervention, the further dangerous monopolisation of the breeding industry will become a fact.
Is this a timely call to tackle a serious problem in a meaningful manner, is it a misinformed rant -- or is it something in between? And how should the intellectual property respond? Do tell us what you think.


Meldrew said...

Throwing fruit at politicians is the obvious answer to your headline: were you expecting something more sophisticated?

Anonymous said...

The Commission or the council can do little in respect of an international organization like EPO since they have no competence whatsoever. That is, by the way, one of the fundamental problems of the unitary patent system. If the small farmers in the EU are really urgently threatened than they should encourage them in filing own patent application instead of asking for restrictions of the system which are politically not feasible.

Anonymous said...

Simultaneously, other breeders are allowed to develop already-existing plant varieties [but patent law allows others to carry on doing anything that was already existing too].

Surely you understand the point being made here? If someone breeds a plant variety with a particular special characteristic and gets a PBR on it, there is nothing to stop me trying to breed my own variety of the same plant with the same characteristic, from existing plants of that species - I just can't use material from the PBR-protected plant to do it. This is what Schreijer-Pierik means by "developing" already-existing plant varieties.

The kinds of patents she's talking about are very different - they claim the characteristic itself, and prevent anyone else from independently breeding a plant of the same species (assuming a limit by species) with the patented characteristic. This is a real problem for small plant breeders, who are unlikely to be able to afford to conduct a comprehensive enough patent search for every new variety they develop to make sure that it does not have a patented characteristic (which it may have without the breeder even being aware of it - e.g. the claim covering hybrid wild-cross broccoli plants with elevated levels of a particular chemical).

Anonymous said...

The point is that the breeding industry is used to operate under a particular model, which one could consider very close to open innovation in the sense of innovation made available to anyone. If one breeder discovers a new trait for a given crop species, breeds it into some of its varieties, and then commercializes such new varieties, this trait then becomes available for all other breeders breeding with this species to breed in their own varieties. And breeders look for and do this because what makes the value of a variety is the traits it contains. PBRs do not prevent this because PBRs are limited to the specific varieties, not to the trait. This is the reason why certain larger breeders (and not only Monsanto and Syngenta) have started to look for legal means for preventing being too easily deprived of their research efforts, and have started using patents. Patents are indeed an appropriate means for protecting traits, because protection is then granted for the trait and hence extends to all varieties containing it.
Now, is that really a problem ?
First of all, patents have always been, and are still, granted for a (very) limited time, i.e. only 20 years. After this time, the innovative trait is given to the breeding community for free use. Considering the time since humans started breeding and the fact that the new trait will become available for eternity after 20 years of protection, one may think that such limited monopoly is not too unfair. Moreover, under the Biotech Directive (98/44/EC), breeders enjoy an extensive research exemption named the breeders exemption, i.e. breeders can breed the patented trait into their own varieties (a process that takes a few years) until they get ready for commercialization. And if the patent is still in force, they would of course need a license to launch their varieties containing the new trait. But if the patent is close to expire, they can just launch on day 1 after expiry.
Patents can also be challenged for their validity. Patents on plant traits are in that respect not different from other patents, in that they are not granted for either known or non-inventive traits.
Finally, the breeder's argument that they would not easily know whether a variety they would want to use for breeding does contain a patented trait or not looks overstated. Of course, breeders are not used to look for this, and they would need to invest some resources in such FTO activities. However, breeders get access to new traits from the commercial varieties newly released on the market, and they use such varieties in their breeding programs precisely because they contain one or more valuable trait that one breeder has found and that they do not have. So, besides the modest FTO check investment, finding out whether a commercial variety contains or not a patented trait would not be a too high burden. At least, if anything would have to be done from a regulation perspective, it could be to oblige breeders to disclose whether their newly released varieties contains patented traits with the patent numbers. But this easy solution is not proposed by breeders because what they want is simply not having to pay attention, and maybe to pay in certain circumstances, for using and commercializing traits that others have identified. They prefer to continue freely using each other's innovations, and preferably the large breeder's innovations because those are the ones investing much in research activities.
It is a bit puzzling to have recently seen breeders defending the recent adoption of the UPOV1991 Convention by the EU against the practice of farm-saved seeds by farmers on account of the fact that they have to recoup their breeding investments, and now seeing them using the reverse argument against patents on plant traits.

Hanno-Neemus said...

Mrs. Merpel demanded that all commenters use a name, real or not, when posting.

Her policy hasn't been enforced very rigorously, as evidenced in the above comments.

Why, entering something in the "name/URL" box isn't that difficult...

The Pigs said...

Why, one may ask, is the option of violating protocol available?

Do the editors not control what is posted?

(the answer is yes - ALL posts are reviewed prior to their showing up for public consumption)

Harold Burstyn said...

In the U. S. we distinguish between asexually reproduced plants, which have been patentable since 1930, and sexually reproduced plants, which are not patentable. The latter can be protected under the Plant Variety Protection Act administered by the U. S. Department of Agriculture.

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