This post was last published on September 1st, 2014.
Innovation has always been focused on existing plant varieties which scientists use for improvements and for which breeders’ exemption (the right to use protected plant varieties in their research and claim ownership of the results) is granted. But patents don’t provide for a breeders’ exemption and researchers will have to pay for access to patented materials used in their research if they are allowed access at all. Patent stacking has become common practice – it refers to taking out patents for different aspects of a single innovation, forcing several royalty applications and payments.
From the very beginning Plant Variety Protection Law has contained a special provision that the breeder’s rights shall not extend to acts done for the purpose of breeding, or discovering and developing other plant varieties. It already appeared in Art. 5(3) of the 1961 UPOV Convention and can still be found in Art. 15(1)(iii) of the 1991 UPOV Convention and in Art. 15(c) of Regulation 2100/94 on Community Plant Variety Rights  OJ L227/1. It speaks for itself that this rule has also been laid down in many national Plant Variety Protection regulations ever since.
This so-called breeder’s exemption represents one of the most important principles of Plant Variety Protection Law. As a result of this exemption a breeder is completely free to use plant material of protected varieties for the purpose of creating other varieties and for the subsequent marketing of such new varieties; he, for his part, is not entitled to oppose the use of plant material of his own protected variety by other breeders for the same purposes. It is also known as the Principle of Independence: the plant breeder’s rights granted in respect of these varieties are totally independent from one another. The provisions referred to, ensure free access to protected plant varieties (and, of course, also to freely available unprotected varieties) as an initial source of variation for further breeding activities.
“Breeder’s exemption”, which is an important feature in plant-variety protection law, does not exist in patent law. Currently, a biotechnologist can freely make use of plant material (protected by breeder’s rights) for further breeding purposes and for the subsequent marketing of new varieties derived therefrom, whereas a breeder cannot, without charge, avail themselves of plant material (protected by a patent) with the same intentions.
In “TRIPS Opinion” the question comes up of whether, apart from all these possible solutions, a breeder’s exemption laid down in Patent Law would be in conformity with the provisions of the TRIPS Agreement and whether these provisions could otherwise be helpful to breeders.
Both “classical” breeders and “modern” biotechnologists invest a lot of time, money and efforts in the creation of new varieties of plants and breeding processes which are beneficial to society. And thus, both deserve protection through Intellectual Property Rights. As a result of revolutionary developments in biotechnology as from the 1970s, the co-existence of patent law and Plant Variety Protection Law raised difficult legal questions.
Most solutions to the above mentioned issues (related to the private sector) are held to be (too) disadvantageous for breeders, as they involve the payment of certain amounts of money to patentees, which has never been necessary in the context of Plant Variety Protection before, or because they require litigation first.
Some alternative solutions such as the system laid down in the FAO International Treaty on Plant Genetic Resources on Food and Agriculture seems to be an important step forward. Apart from this, a licence set up as a mandatory provision (not dependent on the patentee’s initiative) could be considered, and/or a built-in “time lock” in provisions dealing with breeder’s exemption (but then introduced in Patent Law as well).
Finally, a breeder’s exemption is very unlikely to be implemented in patent regulations in the near future and this issue needs to be addressed soon.