The European Parliament today debated the conflict, potential or existing, between Patents and Plant Variety Rights. The discussion was driven by a proposed motion in the Parliament, which you can read here.

The excellent IPKat website has some analysis here, although it is worth noting that it would not be limited to fruit, but apply to all plants, including ornamentals.

Some incorrect information is being bandied about by campaigners and the media. The patents that are now being granted apply to variety traits (characteristics), not to varieties themselves. This is a critical distinction between PVR (which apply to varieties) and patents.

For example: Breeder A develops the world’s first blue daffodil.

As it currently stands, Breeder A has two options:

  1. Take out Plant Variety Rights. The PVR applies to the particular blue daffodil variety that Breeder A has developed. A competitor breeder can now exploit the breeder’s exemption within PVR law and develop further blue daffodil varieties by breeding from the original variety (provided that they are sufficiently distinct as to not be considered Essentially Derived Varieties [EDV]) or by reproducing the breeding process that Breeder A followed (which circumvents the EDV rules). Within a very short period of time, Breeder A’s new variety is subject to competition, even though Breeder A invested many years and considerable resources in developing the original new blue daffodil. Conversely, Breeder A does not have a monopoly, so other breeders can improve on the original blue daffodil by developing new varieties and can aid the consumer by creating competition in the market.
  2. Take a Patent in the blue petal colour trait in daffodil, even though it is the product of a natural biological process. This would give Breeder A a monopoly position and prevent anyone else from developing a daffodil with a blue petal colour, even if they did so independently. This would provide Breeder A with a good opportunity to commercially exploit their new variety and recoup their significant investment (an incentive to innovate) but would prevent anyone else from developing a competitor or improved variety (stifles the market; stifles innovation). There is currently no obligation on a patent holder to licence their patent to any other party. Also: patents are very expensive for the independent breeder, so they can’t get this level of protection for their own new developments.

So there are arguments for and against the use of patents. As it is, the deep-pocketed breeding companies (mainly in agricultural crops) are applying for large numbers of patents. They are beyond the budget of many smaller firms and independents. Additionally, these patents may prevent other breeders from developing new varieties if they possess a trait that is owned by a third party.

We expect to see this debate run and run. We also expect growing pressure for amendments to legislation, although that will be a long and tortuous process. For now, watch out for more and more patents.