Introduction to Intellectual property Rights

Niels Louwaars
Biopolicy specialists

Centre for Genetic Resources, the Netherlands

Biodiversity is a complex term

 What are IPRs? – historical developments

 IPRs in agriculture: patents and PVP

 Challenges of Biotechnology

 TRIPs and DRIPs

Centre for Genetic Resources, the Netherlands

IPRs – historical development

 16th century: monopoly rights granted by the

sovereign

 IPRs: Provides a territorial, temporary exclusive

right on the commercialisation of the invention in
return for public disclosure.

Centre for Genetic Resources, the Netherlands

justifications

 Primary justification:
 Incentive to invest in research
 Incentive to innovate (based on invention)
 Incentive to make information publicly available

 ‘contract with society’: limitations in time gegraphy and

scope
 Alternatively: moral justification – IPRs as a kind of
human right

Centre for Genetic Resources, the Netherlands

 “The community requires . . . that skillful men who
contribute to the progress of society will be paid
for their exertions. The patent laws are supported
because it is erroneously supposed that they are a
means to this end.”
The economist, 1863

Centre for Genetic Resources, the Netherlands

Paris Convention 1883 and beyond

 Criteria for granting a patent

 Industrial application – usefulness
 Novelty
 Non-obviousness / invenive step
 Limitations:
 Disclosure requirement
 Protection for 20 years
 Compulsory licenses . . . .
 Protection as per claims in the application

Centre for Genetic Resources, the Netherlands

Patents in agriculture

 Protecting protect living matter?

 Ethical problems
 ‘Technical’ problems: stability
 Food security problems
 Legal problems:
• Non-obviousess
• Novelty
• Industrial application
• Description requirement

Centre for Genetic Resources, the Netherlands

Need for protection of breeding

Public good character of varieties

 Self replicating
 Sui generis systems:
 US-Plant Patent 1930
 . . . . Plant Breeder’s seal (Germany)
 . . . . Annual prizes (Netherlands)
 Plant Breeder’s Rights (Europe)
• 1961 Convention on the Protection of New Varieties of Plants
• NL, B, L, G, F, I only
• Secretariat: UPOV

Centre for Genetic Resources, the Netherlands

Functions of PVP

 Social objectives
 Stimulate investment in improvements / choice for
farmers and national food security
 Make materials widely available

 Avoid locking up of inventions: breeder’s exemption

 Recognize traditional seed handling: farmers’ privilege

Centre for Genetic Resources, the Netherlands

Special features of PVP

 Criteria for protection

 Distinct (homogeneous)
 Uniform (depending on type of replication)
 Stable
 New (in the market)

 Two major exemptions

 Breeder’s exemption
 Farmers’ privilege

Centre for Genetic Resources, the Netherlands

1961 – 1972 – 1978 - 1991

 Adaptations of the rules

 More rights for breeders/less for farmers
 Adapted to the developments in agriculture in the UPOV -
member countries
 Key ‘new’ elements of UPOV 1991
 Farmers’ privilege restricted
 Inclusion of Essentially Derived Varieties
 Protection of the harvested product

Centre for Genetic Resources, the Netherlands

Biodiversity is a complex term

 What are IPRs? – historical developments

 IPRs in agriculture: patents and PVP

 Challenges of Biotechnology

 TRIPs and DRIPs

Centre for Genetic Resources, the Netherlands

Biotechnology

 Originates in industry
 US-jurisprudence
 1980 Diamond vs Chakrabarty: GM-bacterium
 Ex Parte Hibberd 1985: plant variety
 Onco mouse: 1998
 DNA sequences . . . . . reversed
 EU – others . . . . Follow cautiously

Centre for Genetic Resources, the Netherlands

Patentability

 Processes
 Transformation methods
 Regeneration methods
 Marker systems
 Products
 Functional genes
 Markers / promoters
 Tools
 Equipment
 reagents
Centre for Genetic Resources, the Netherlands
This puts the life sciences upside down

 Result: concentration
in the seed industry
 Panic (currently) in the
pharmaceutical industry
 Changes in public science
‘enterprising university’

Centre for Genetic Resources, the Netherlands

Effect in plant breeding

 Breeding may use processes, products and tools

 Relevant for GM-technology
 May also be relevant for conventional breeding
 “Freedom to Operate” limited
• No automatic breeder’s exemption
• No farmers’ privilege

 However: IPRs are territorial – not valid in many

developing countries

Centre for Genetic Resources, the Netherlands

PVP and patents

 Overlapping rights? . . . . .Possible !!

 PVP on plant variety
 Patent on gene
• What happens with Breeder’s exemption? Farmers’ privilege?

 EU directive: FP guaranteed !!!!

 Germany and France: also BE guaranteed !!! (if the
patented construct is ‘removed’ during breeding

Centre for Genetic Resources, the Netherlands

Biodiversity is a complex term

 What are IPRs? – historical developments

 IPRs in agriculture: patents and PVP

 Challenges of Biotechnology

 TRIPs and DRIPs

Centre for Genetic Resources, the Netherlands

WTO : TRIPS Agreement

 One of the basic ‘laws’ of WTO

 Trade Relates Aspects of Intellectual Property Rights
 Minimum requirements for legal protection in all WTO-
member states
 Objective: promote trade
 Concurs with other harmonisation initiatives
• UPOV (many other convention: Berne, Budapest, etc.)
• PCT – patent convention treaty
• EU-patent office, ARIPO, . . .
• WIPO – Patent Convention Treaty

Centre for Genetic Resources, the Netherlands

Exemption in TRIPS

 Article 27 (3) a : all inventions are to be patentable

– countries may choose to exempt plants and
animals other than micro-organisms

 Article 27 (3) b : countries will provide for plant

varieties protection through patents, an effective
sui generis system or a combination thereof

Centre for Genetic Resources, the Netherlands

TRIPS and UPOV

 UPOV is NOT mentioned in TRIPS

 Options:
 Join UPOV under 1978 (e.g. China, Argentina, Kenya) or
1991 (e.g. Kyrgyzstan, Vietnam)
 Use UPOV-type law but not join the Union (Philippines,
Indonesia . . . . . )
 Design your own: India, Thailand

Centre for Genetic Resources, the Netherlands

Harmonisation

 Harmonisation of laws
 May be good for trade

 Maybe cheaper in implementation

 May not be a risk for seed system development and food

security

Centre for Genetic Resources, the Netherlands

Some have different perspectives of risk!!

Centre for Genetic Resources, the Netherlands

DRIPS

 Development Related Aspects of Intellectual

Property Rights
 Tailor IPR system to the innovation system in the country
 Tailor it to the original objectives: society should benefit;
society = national!
 World Bank:
 strong protection for commercial crops + weak
protection for subsistence crops
 Use UPOV implementation system to save costs

Centre for Genetic Resources, the Netherlands

Post TRIPS-developments
 Developing countries’ problems
to design and implement national
IPR laws

 Some industrialised countries find

TRIPS too soft: stricter requirements
in bilateral trade agreements

 Within WIPO: trends towards a global patent in the

Substantive Patent Law Treaty (so: away with territoriality)
Centre for Genetic Resources, the Netherlands
Current developments

 Seed companies get worried about patenting

 Call for implementation of TRIPS 27(3)a (!)

 Discussion with one country to

 Provide different levels of protection for different crops
 UPOV+ for export crops (no farmers’ privilege)
 Weak UPOV for local commercial crops
 Full Farmers’ Rights for smallholder farmers

Centre for Genetic Resources, the Netherlands

Bottom line

Intellectual Property Rights are

too important to leave it to
the patent lawyers . . . . or to
the trade negotiators

Centre for Genetic Resources, the Netherlands