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2022 | Buch

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Intellectual Property Protection for Plant Related Innovation

Fit for Future?

verfasst von: Dr. Michael Andreas Kock

Verlag: Springer International Publishing

Buchreihe : Law for Professionals

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

The book reviews the history, present, and likely future of intellectual property for plant-related inventions. It describes “what works” and “what does not work” in the current situation and analyzes whether the current intellectual property framework will be able to cope with the rise of genome editing/new breeding technologies (especially CRISPR Cas). Based on trend data, the analysis shows that the current system, including stakeholder initiatives, will most likely not be able to adapt to the technology change. It then evaluates different options for legislators to respond and proposes in detail a new holistic IP system which merges elements of the patent and the plant variety protection system into one new system.

Inhaltsverzeichnis

Frontmatter

Introduction: Plant Innovations

Frontmatter

Chapter 1. Plant Breeding and Intellectual Property: A Controversial Topic

Abstract

Plant-related innovations—new plant varieties, traits, and the methods of producing them—is a multifaceted topic. It not only relates to the elementary human need of food security and is a critical element of a carbon-neutral sustainable agriculture, it also touches multiple elements of policy making and culture. Few technologies are debated more emotionally, and rarely are positions more polarized. This section reviews the special nature and needs of plant-related innovations and the role of intellectual property (IP) systems in this context. It addresses the importance of plant breeding innovations and provides an overview of plant breeding and the plant breeding industry. It further looks ahead into the future of plant breeding and agriculture and discusses the potential of new breeding technologies.

Michael Andreas Kock

The Current Legal Framework for IP on Plant Innovations (Lex lata)

Frontmatter

Chapter 2. Overview: Intellectual Property for Plant Innovations

Abstract

Plant varieties are a special area of innovation. New plant varieties are high technology in an easy-to-copy form and comprise highly integrated packages of innovations to address the complex needs of growers. Importantly they are always an improvement and derived from an earlier variety. This section provides an overview about the specific nature of plant related innovations and the international legal IP framework for such innovations.

Michael Andreas Kock

Chapter 3. The Sui Generis System of Plant Breeders Rights

Abstract

This section provides an overview on the sui generis IP systems of plant breeders rights (plant variety protection) and its history. It explains the UPOV system for plant variety protection, the prerequisites for protection (distinctness, uniformity, and stability; DUS), rights and limitations (breeders’ exemption, farm-saved-seed exemption) and addresses national differences. It also explains seed market authorization and the alternative sui generis system of plant patents.

Michael Andreas Kock

Chapter 4. The Patent System for Plant Related Inventions

Abstract

This section provides on overview on patents on plants and plant related innovations including a historical overview on early patents on plants. It discusses the country specific difference in the implementation of the exclusions from patentability under the TRIPS Agreement for plants and essentially biological processes. It further addresses the prerequisites for patent protection of plant related inventions and the specific challenges in this context. It reviews the rights and limitations of patents for plant related inventions (including the breeder’s exemption under EU laws) and discusses national differences.

Michael Andreas Kock

Chapter 5. Legislation Related to (Plant) Genetic Resources

Abstract

Genetic resources (GR) such as wildlife plants are the foundation of civilized life on earth and the raw materials of many industries. They are used to develop new plant varieties, nutritious food and other products of daily use. This section discusses the Convention on Biological Diversity (CBD), the Nagoya Protocol, and the International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA) and their “quasi-IP” character. It further describes the impact on plant breeding, plant innovations, and related IPRs including the requirement to declare source and origin in IP applications.

Michael Andreas Kock

Chapter 6. Alternative IP Systems for Plant Innovations

Abstract

Seed companies combine various IP tools such as patents and PBRs but also other, unregistered IP rights like trade secrets and contracts. This chapter provides an overview about these additional IP tools including trade secrets (e.g., on parent lines), copyright (e.g., on DNA sequences or ornamental plants), copy-protection technology (e.g., GURTs), market authorization rights and regulatory data exclusivity, agreements, and bag tags.

Michael Andreas Kock

Chapter 7. Analysis of the Status Quo: Current Benefits of IPRs for Plants

Abstract

The current patent and PBR systems work reasonably well in most countries to provide an incentive for the development of new plant varieties. Likewise, the ITPGRFA has been a success when it comes to GRs of certain plant species. This section discusses the use and benefits of the current systems.

Michael Andreas Kock

Chapter 8. Analysis of the Status Quo: Current Issues in Plant Breeders Rights

Abstract

This section addresses the issues in the PBR system especially novelty of parent lines in case of commercialization of their hybrids, the problems of DUS testing in times of climate change, and the challenge of a balanced definition of essential derived varieties (EDV) in the context of new breeding technologies. It further discusses the topic of farm-saved-seed, and private and non-commercial use in subsistence farming. The breeders exemption, its pre-requisites, and problems in the context of accelerated variety development are reviewed. Further, the extension of PBRs to harvested material and direct products, licensing and compulsory licensing, and the enforcement of PBRs are addressed. Finally, the section discusses issues related to the seed marketing authorization.

Michael Andreas Kock

Chapter 9. Analysis of the Status Quo: Current Issues in Patents on Plants

Abstract

Patents on plants are debated in politics and society. This section discusses the country-specific implementation of the exclusion of plants and products-of-nature from patentability, the issue of novelty for plants obtained by breeding processes, and the issue of non-obviousness in the context of US variety patents. It discusses specific challenges of both plant biotech patent and patents on plants with “native traits” and obtained by essentially biological processes, including Rule 28 (2) EPC and the G 3/19 “Pepper” decision. Specific issues related to the clarity requirement (Article 84 EPO) and deposits of biological material are also addressed. In the context of scope of protection and enforceability the research and the breeder’s exemption, the extension of method claims to products, and the emerging topic of post-patent use of GM events are discussed.

Michael Andreas Kock

Chapter 10. Other Issues

Abstract

This section discusses issues related to plant genetic resource legislations, especially access, lack of monetary benefit sharing, the emerging issue of digital sequence information (DSI), and the feasibility of a subscription model. It further discusses the sustainability of trade secret protection and the challenge of ensuring prior use rights in this context.

Michael Andreas Kock

Chapter 11. Issues: Summary and Conclusion

Abstract

This section and Table 11.1 summarizes the strengths and weaknesses of the IPR systems for plant related inventions and describes the existing and emerging challenges and dilemmas for legislators.

Michael Andreas Kock

Chapter 12. Current Solutions for Issues in Plant IPR Systems

Abstract

The debate about the right balance between protection of and access to plant genetic resources includes “what should be protectable” and the scope of rights. This section discusses how these issues have been addressed so far by legislation, court rulings, and industry solutions. Industry solutions such as the PINTO database for patent transparency, patent pools, patent clearinghouses (incl. the International Licensing Platform – Vegetables, ILP), e-licensing platforms, and open-source models (e.g., the Open Source Seed Initiative, OSSI) are explained, including related issues of competition law.

Michael Andreas Kock

The Need for Legislative Change and Related Options (Lex ferenda)

Frontmatter

Chapter 13. Emerging Challenges

Abstract

The technological, environmental, business, political, and societal environment for plant related innovations and agriculture is rapidly evolving. Change drivers include IP complexity, patent office overload, dematerialization of genetic resources and innovation, open innovation and cooperation, climate change and food security, and increasing globalization at the time of eroding multilateralism. This section discusses these developments, specifically the patent landscape for new breeding technologies, and the consequences for plant breeding in the future.

Michael Andreas Kock

Chapter 14. Potential Solutions for the Future Challenges

Abstract

The changing environment for plant related innovations requires an evolution of related IPRs. In view of the legislative intent of IPRs to foster innovation, different options are evaluated. This section analyses the general considerations for IPR systems and the underpinning legislative intent, the correlation of IP strength and innovation flow, and the legislators’ dilemma to provide strong IP to reward existing innovation and to enable access to enable new innovation. It lays out the different options and the primary scenarios for the future.

Michael Andreas Kock

Chapter 15. Option 1: Do Nothing … and Rely on Market Forces

Abstract

The “Do nothing” option is the most likely and goes hand-in-hand with patent system’s inherent resistance to change. This section discusses to which extent the emerging challenges can be addressed within the current system by a “dynamic” interpretation of the law and stakeholder solutions such as further evolving the licensing platforms like the ILP and voluntary patent transparency.

Michael Andreas Kock

Chapter 16. Option 2: Legislative Adjustments to the Patents and PBR System

Abstract

This section discusses legislative options to address the emerging challenges of patent thickets for plant related innovations within the existing IPR systems. Legal adjustments to the patent and PBR system could address each system individually but also the interface between the systems. Discussed are legislative measures to improve legal certainty and freedom-to-breed and legislative incentives to increase the effectiveness of licensing platforms and patent transparency.

Michael Andreas Kock

Chapter 17. Option 3: Abandoning Patents

Abstract

This section discusses the option to address the challenge of patent thickets by abandoning patents on plant related innovations. It discusses the need for patents of plants in the era of new breeding technologies with reduced innovation lifecycle and lower innovation costs, but also the challenges to implement patent abandonment in an international context.

Michael Andreas Kock

Chapter 18. Option 4: Redesigning the IP Systems

Abstract

This section discusses the present proposals to address the emerging challenges of patent thickets by fundamentally redesigning the IPR systems for plant related innovations, including the unified protection system proposed by Metzger and Zech, and the plant germplasm integrated system developed by Rapela.

Michael Andreas Kock

Chapter 19. A New Holistic System for Plant Innovations: UPOV 2030

Abstract

This section presents and discusses a new proposal for a holistic sui generis system which combines elements of patents, plant breeders’ rights, biotech regulatory, and biodiversity legislation as a solution to the emerging problem of patent thickets to enable fair and equitable access and benefit sharing for all plant related innovations. Discussed are (i) the multilateral character of the system (ii) the design as the sole IPR for plant innovations and the exclusion from other IPRs especially patents (iii) the protection for different types of innovations—varieties, man-made traits, native traits, plant-derived products, and processes (iv) the scope of protection, extensions, and limitations (v) the exclusive and inclusive nature of the rights, and (iv) the integration of biodiversity and regulatory aspects.

Michael Andreas Kock

Chapter 20. Assessment of the Different Options Under the Different Scenarios for the Future

Abstract

This section evaluates the different option under the two primary scenarios i.e., “The world as we know it” and “Disruption”. The effects of the different options under the two scenarios are discussed.

Michael Andreas Kock

Summary and Conclusions

Frontmatter

Chapter 21. A Changing World for Plant Intellectual Property

Abstract

This section conducts risk (likelihood and impact) analysis of the scenarios for the future and emphasizes the need to evolve the IPR system for plant innovations.

Michael Andreas Kock

Chapter 22. Conclusion I: The What—An Open, Holistic IP System for Plant Innovation

Abstract

This section draws the conclusion that under a disruptive scenario a holistic, open IPR system is essential to ensure a sustainable agriculture and food security.

Michael Andreas Kock

Chapter 23. Conclusion II: The How—Towards Implementation of the Holistic IP System

Abstract

The Holistic System could be established as a new UPOV convention (“UPOV 2030”). This section discusses the challenges in implementing such a system, the likelihood of an implementation, and the risks and implications not doing so.

Michael Andreas Kock

Titel: Intellectual Property Protection for Plant Related Innovation
verfasst von: Dr. Michael Andreas Kock
Verlag: Springer International Publishing
Electronic ISBN: 978-3-031-06297-1
Print ISBN: 978-3-031-06296-4
DOI: https://doi.org/10.1007/978-3-031-06297-1