Plant breeders’ rights, as laid down in the UPOV Convention, have made an important contribution to the success of plant breeding in the past few decades. Also thanks to plant breeders’ rights significantly profitable breeding companies have developed, which are able to continue to invest in new and improved plant varieties.

Developing a new plant variety demands investments. In order to recoup these investments, a form of intellectual property has been created, especially tailored to plant breeding: plant breeders’ rights. Plant breeders’ rights take account on the one hand of a just reward for the breeder for his efforts in developing new varieties and on the other hand of 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.

Alongside plant breeders’ rights, patent rights have entered the plant breeding domain in the past two decades. Traits built into plant varieties, but also certain processes, can be protected by means of patent rights. Patent rights are different from plant breeders’ rights in that patent rights do not have a breeders’ exemption. This enables the patent holder to lay exclusive claims to genetic material and shield certain genetic building blocks from use by others. The patent holder does have the power, though, to grant licenses to other breeders.

On 6 May 2009, trade association Plantum NL adopted a new position as regards the relationship between patent and plant breeders’ rights. This position is as follows: 1. Biological 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 line with the ‘breeders’ exemption’ of the UPOV Convention. 3. The aforementioned free availability, use and exploitation should not be allowed to be obstructed in any way, either directly or indirectly, by patent rights.

Plantum NL still sees a role for patent rights in the plant propagating material sector, for instance to protect innovative processes or techniques. However, varieties developed with either of these should not come under the scope of such patents. Rijk Zwaan agrees with this position, 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 the vegetable seed companies allied in the ESA Section Vegetables and Ornamentals. These seed companies 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). As from May 21st, 2008 the SVOwic members 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.