Native trait patents and access to biological material
'It is important to promote innovation,' says Biense Visser, CEO of Dümmen Orange. 'Patents are a form of reward for investing in innovation, but this privilege must never be abused. It should be possible for others to make use of patented properties and it would be beneficial to establish agreements for native traits (intrinsic characteristics) through licencing, as is the case within the vegetable sector (see box 'International Licencing Platform for the vegetable sector'). We would like to consider, together with other stakeholders, whether similar opportunities are available to ornamental horticulture.' It is quite early at this stage, since the number of relevant trait patents is rather low. Native trait patents support Plant Breeders' Rights (PBR), which we regard as the basis of our industry. Breeders' rights, however, cover only a single variety, while trait patents may apply to an entire species or genus, adds Hans van den Heuvel, R&D Managing Director at Dümmen Orange.
Given the strong focus on product innovation at Dümmen Orange, we have welcomed the decision of the Board of Appeal of the EPO (European Patent Office) that native traits are patentable. Patents on technological inventions contribute to innovative strength and competitiveness. Moreover, patented traits that result in reducing chemical inputs and waste and lowering the energy footprint contribute significantly to sustainability. However, extending trait patents to cover biological material may slow down innovation. Dümmen Orange therefore believes that patent-protected biological material should remain available for use in developing new varieties.
International Licencing Platform for the vegetable sector
The International Licensing Platform for Vegetable Plant Breeding (ILP Vegetable) was launched in November 2014. In the years before the launch, the debate on the patentability of plant traits within the vegetable sector intensified, particularly in Europe. Eleven leading vegetable breeding companies from Switzerland, Germany, Japan, France and the Netherlands came together to establish ILP Vegetable to allow breeders easy access to the traits - biological material for vegetable breeding - at a fair and reasonable price, thereby facilitating the introduction of new products to the market. ‘The first talks were held in 2010,’ recalls Chris van Winden, managing director of ILP Vegetable. ‘The subject demanded substantial examination and our starting position was based on an “agree to disagree” perspective. Despite major differences between the parties, a constructive atmosphere overcame which led to the development of a licencing system. Both supporters and opponents of patents participated; conflicts of interest arose (strong position versus no-patent position) and minor companies with a personal interest were also represented alongside major ones, even though they do not hold any patents. Membership provides access at all times to the patents belonging to the other members of ILP Vegetable.'
The ILP licencing system is simple and transparent. If a member wants to obtain a licence to a trait that is covered by another member’s patent claim, the parties engage in negotiations. If agreement is not reached within three months – which has not happened yet – the matter is referred to independent experts. Both parties submit their proposal for licencing to mediators, who then choose the most reasonable proposal. 'This arbitration system is designed to punish unreasonable behaviour,' emphasises Van Winden. When ILP Vegetable was launched in 2014, the companies involved held 123 patents. That figure currently stands at 220 (end of 2018) for the now thirteen members (9 large companies, 1 medium and 3 smaller ones). 'When we started in 2010 this number stood at about 100,' reflects Van Winden. He is still satisfied with this licencing solution. 'The mood among members is good, people are happy and that keeps the system running.'
Although the Dutch association of plant breeders (Plantum) is still lobbying for the patent law in plant breeding to be changed, it supports practical solutions offered by the industry itself. 'As far as we are concerned, these are two parallel paths', says Judith de Roos, legal expert at Plantum. 'Access to genetic resources is the basis of effective plant breeding, and necessary to continue to develop innovative plant varieties. There is still much discussion about the patentability of native traits in Europe. The European Commission and all 38 member states of the EPO still believe they should be excluded from patentability. They have tried to achieve this by introducing rules rather than changing the law, but this approach has now been rejected from a bureaucratic point of view. It is legally very complex, and it could still go both ways. In the meantime, we advise companies to prepare for both scenarios. We were involved in the early stages of ILP Vegetable by providing secretarial support. Two years ago, we discussed internally whether a system like ILP would also be interesting for ornamental horticulture, since we noted a growing interest. However, at the time there was no sense of urgency as there are fewer patents in this sector. But this is a process that we are willing to explore in addition to the political/legal route we are currently pursuing, which is temporary and only relevant for the EU. If the situation changes then we – together with CIOPORA (International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties) – will certainly consider it. But it must come from within the sector, as the companies would have to support it.' concludes De Roos.
Edgar Krieger, Secretary General of CIOPORA, agrees that a licencing system like ILP Vegetable is a good model. 'It is important for ornamental/fruit breeders to secure quick and efficient access to patented technology under fair, reasonable and non-discriminatory terms. In order to achieve this, CIOPORA supports the establishment of a licencing platform and dispute resolution mechanism. We are looking into it, although not proactively since the need doesn’t seem to be there quite yet. CIOPORA believes that plant-related inventions should be able to receive patent protection. Dümmen Orange agrees with us on this. We are in favour of making an exception for breeders, both in plant variety rights and patent law, allowing plant breeders to use protected plant material for breeding, discovering and developing a new plant variety. However, the subsequent commercialisation of a plant comprising the patented invention should require the authorisation of the patent holder,' states Krieger.