Plant breeders’ rights, as laid down in the UPOV agreement, have made a significant contribution to the success of plant breeding in the last few decades. It is, in part, thanks to plant breeders’ rights that profitable breeding companies have come into being, capable of investing time and time again in new and improved plant varieties.

Developing a new plant variety demands investments. In order to be able to recoup those investments, a form of intellectual property was created, especially geared to plant breeding: plant breeders’ rights. Plant breeders’ rights take account of a just reward for the breeder for his efforts in developing a new variety and the social importance of continued improvement of varieties by other plant breeders. The latter is done via the so-called ‘breeders’ exemption’, which means that varieties protected by plant breeders’ rights may be used by anyone for the development of new varieties. As such, plant breeders’ rights lead to a form of open innovation.
Apart from plant breeders’ rights, patent law has also entered plant breeding in the past two decades. Traits built into plant varieties, but also certain working methods, can be protected under this law by means of patent rights. Patent rights are different from plant breeders’ rights in that they do not include a breeders’ exemption. This enables the patent holder to lay exclusive claim to genetic material and shield certain genetic building blocks from use by others. That patent holder does have the power, though, to grant licences to other breeders.

On 6 May 2009, trade organisation Plantum NL adopted a new standpoint as regards the relationship between patent and plant breeders’ rights. This standpoint is as follows:

1. Organic material protected by patent rights should be freely available for the development of new varieties.
2. Using and exploiting these new varieties should be free, in accordance with the ‘breeders’ exemption’ of the UPOV agreement.
3. The free availability, use and exploitation mentioned above are not allowed to be hindered in any way whatsoever, directly or indirectly, by patent rights.

Plantum NL still sees a role for patent rights in the vegetable source material sector, for instance to protect innovative methods or techniques. However, any varieties developed by using them, should not come under the scope of these patents. Rijk Zwaan agrees with this standpoint, as do the great majority of the members of Plantum NL.

Code of conduct

A Code of Conduct on Intellectual Property Rights is unanimously adopted by ESA vegetable seed companies within the ESA Section Vegetables and Ornamentals, those seed companies that are direct members of ESA and that are active in all areas of the vegetable seed business, i.e. in breeding, seed production and marketing of seed of vegetable and/or ornamental species, form the SVOwic, the Working Group Integrated Companies. At present, this Working Group comprises 22 vegetable seed companies.

As from May 21st, 2008 all of these 22 companies have signed the “ESA SVO Code of Conduct for vegetable seed companies”.
This Code of Conduct contains recommendations and best practices to prevent misappropriation of germplasm and infringements of Intellectual Property Rights (IPRs).

Attached you find a copy of the Code of Conduct (Pdf, 25 kb). The document can also be found on the open part of the ESA website (www.euroseeds.org) in the folder “Position Papers” and also contains the list of companies having signed.