PLANT BREEDERS RIGHTS AND PATENTS: AN EFFECTIVE LEGAL PROTECTION FRAME FOR PLANT VARIETIES?

During the last few decades, very rapid developments have occurred in modern high-technologies such as biotechnology. Conventional breeding results have been effectively protected by plant breeders rights over a long period of time. As biotechnology has moved from basic research to applied technology and, meanwhile, has reached, or at least is approaching, an industrial level, the question of appropriate protection of the achievements and investments of breeders through plant variety rights and/or patents is of increasing importance for the so-called green industry. Terms like “functional genomic” are representative for a technique which is more and more applied by breeders. While in medical science in mass screen tests substances are tested with regard to their application as medicine for certain diseases, plant genetic is about to enquire into the genome of plants and induce with system mutations in order to elaborate the function of single genes. The patentability of inventions on the field of living nature has been acknowledged now for decades. Not only national patent laws, but also the European Patent Convention has taken into account the need of protection of living nature and, thus, does not know a general exclusion of biological inventions from patent protection. Inventions which are related to plants and animals or refer to technical processes for producing plants or animals are, in principle, open to patent protection. The same applies with regard to processes in which the breeding of subsequent generations does not occur through sexual propagation, but which create new varieties through genetic, chemical or physical influences. The European Patent Convention only excludes patent protection expressively in respect of plant or animal varieties or essentially biological processes for the production of plants or animals. The exclusion, however, does not apply to microbiological processes or the products thereof. The consequence is that patent protection is equally relevant as plant variety protection to provide an encompassing protection for achievements on the plant breeding sector. Increasing patent protection sought by breeders, however, significantly influences the measures plant breeders need to undertake before they start a new breeding project and/or start to introduce new varieties into the market.

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