Intellectual Property

In most fields of technology, the favoured mode of legal pro­tection for inventions is patents. In agriculture, an alternative form of intellectual property (IP) rights called plant variety rights, sometimes also known as plant breeders’ rights (PBR), has been developed. PBR is used to protect new varieties of plants by giving exclusive commercial rights to market a new variety or its reproductive material. The advances in gene technologies over the past decades have enabled new innovations in agriculture; however, one of the main features of plant biotechnology is also its increasingly proprietary nature with respect to patentability. Hence, depending on the context either PBR or patent may be relevant to protect the output of plant breeding.

Because the IP protection for plants varied, and still varies, widely between countries, the International Union for the Protection of New Varieties of Plants (UPOV) came into existence in 1961 as a global agree­ment setting a minimum standard for the protection of plant varieties. UPOV allows the protection of new varieties of plants which are distinct, uniform, and stable. A variety is distinct if it differs from all other known varieties by one or more important phenotypic characteristics; uniform if the plant characteristics are consistent among plants within the variety; and stable if the plant characteristics remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties. Key elements of the UPOV convention include the breeder´s exemption, i.e. the right of breeders to use protected varieties to create new varieties, and to some extent (not compulsory) the farmer´s privilege to, within certain limits, save seed for propagating the product of the harvest they obtained by planting a protected variety.

Another international agreement of relevance to the legal protection of bred varieties is the multilateral agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which came into effect in 1995 and is administered by the World Trade Organisation (WTO). Under TRIPS, any technology inventions are patentable, provided that they are novel, involve an inventive step, and are suitable for industrial application. Patenting biotech­nological inventions is often controversial though. With respect to plant gene technologies, TRIPS permits the exclusion from patentability of essentially biological processes, though this is optional and may therefore vary between different countries.