Towards a Fair Scope of Protection for Plant Breeders’ Rights in an Era of New Breeding Techniques: Proposals for a Modernization of the Essentially Derived Variety Concept

Plant breeders’ rights (PBRs) are an important IP right, and as plant breeding has a crucial role to play in sustainability, it is vital that innovations in plant breeding receive the appropriate innovation incentives. The full breeders’ exemption ensures that there is always free access to the plant variety protected by a PBR for developing new varieties. The price to pay for this exemption is that PBR holders cannot prevent third parties from taking advantage of their efforts and investments in developing a new variety. This invites free-riding, at the detriment of the PBR holder. The concept of “essentially derived varieties” (EDV), introduced in 1991, provided a “fix” for this problem. It allows PBR holders to extend, at least to some extent, the scope of protection of their PBR to those varieties which use all or most essential characteristics of the initial protection variety. Decades have passed, but no adequate interpretation of the complex EDV concept has been found. The advent of new breeding techniques (NBTs) has made the discussion about a fair scope of protection of PBRs all the more relevant. This necessitates a modernization of the EDV concept, if the PBR system is to remain relevant and continue to be an innovation-incentivizing mechanism. I argue that a broader scope for the EDV concept is essential and fair. Determining what essential derivation is will remain a difficult task also in the future. This is why I have additionally proposed a collaborative reward model, which will facilitate the functioning of the EDV system and is capable of providing more legal certainty in this area.

A Critical Examination of Breeders’ Monopoly Rights to the Detriment of Farmers’ Rights Under the Ethiopian Plant Breeders’ Rights Law

Ethiopia adopted plant breeders’ rights proclamation in 2006 to provide recognition and economic reward for breeders for their effort and investment so as to encourage their involvement in the sector. At the same time, the proclamation aims to ensure that the farming and pastoral communities of Ethiopia, who have been conserving and continue to do so in the future the agro-biodiversity resource used to develop new plant varieties, continue to their centuries old customary practice of use and exchange of seed. This article aims at investigating the extent to which the proclamation accommodates its stated objective by giving adequate recognition to farmers’ rights. The investigation adopts a qualitative method by analyzing both primary materials and secondary sources. The article concludes that the Ethiopian plant breeders’ rights proclamation fails to adequately incorporate farmers’ rights beyond its preamble.

Essentially Derived Varieties in View of New Breeding Technologies – Plant Breeders’ Rights at a Crossroads

Plant breeders’ rights (PBR) within the framework of the International Convention for the Protection of New Varieties of Plants (UPOV) are the sui generis intellectual property (IP) system of choice for plant varieties. It achieves a balance between the protection of new varieties and access to protected breeding material for further improvement. The extension of the protection to essentially derived varieties (EDVs) in the UPOV 1991 Convention1 was controversial from the beginning as it creates a tension with the breeders’ exemption. The 2017 UPOV Explanatory Notes on EDVs further fueled the debate as they were seen to limit the EDV extension, while some argue that the EDV scope should extend to all predominantly derived varieties merely on the basis of genetic conformity. With the rise of new breeding technologies (NBTs), legal certainty on the EDV definition is of fundamental importance to avoid a chilling effect on these promising technologies. Not only would a broad EDV definition block critical innovation and restrict the full potential of NBTs to a few multinational companies,2 it would also substantially limit the scope of protection of NBT-derived varieties, as an EDV itself is not entitled to the EDV extension: Valuable NBT-derived varieties would become easy prey for plagiarism. This article shows that the legislative intent of the EDV provision does not limit innovative breeding to conventional crossing and that there is no basis for extending EDV protection to new, innovative varieties which do not retain the essential characteristics of the initial variety (IV) even if there is a high genetic conformity. By analogy with the doctrine of equivalents under the patent system, a derived variety cannot qualify as an EDV if it (i) does not retain all the essential characteristic of the IV and (ii) is ‘non-obvious’ and causes a ‘significant technical progress of considerable economic interest’. The article finally suggests guidelines and processes to overcome the current EDV dilemma.

The Structure of the sunflower plant breeders’ rights landscape in South Africa

Varietal innovations and protection of plant breeders’ rights (PBRs) contribute to the development of any crop’s ability to produce higher yields relatively consistently. Producing yields under adverse weather conditions and the overall characteristic of drought tolerance, make the sunflower an attractive crop for producers in dryland production regions. The main objective of this study was to give an overview of the structure of the South African sunflower breeding programme, focusing on the construction of PBRs and the leading players in sunflower breeding and seed production in South Africa. We compiled a detailed database of sunflower varietal innovations in South Africa from 1979 to 2019 using various sources such as the South African Grain Laboratory, the Department of Agriculture’s Plant Variety Journals and the Crop Estimation Committee. This data set was then analysed using descriptive statistics and trend analysis to determine the main trends in ownership of PBRs and sunflower varieties. We looked at the inclusion of new sunflower varieties on the national variety list for sunflower varietal improvements in South Africa over this period. A total of 76 PBR sunflower varietal applications were lodged for the period – an average of 1.9 applications per year. The principal applicants for varietal inclusions on the national variety list were Pannar with 102 varieties (23.8%), Pioneer seeds with 51 varieties (11%), Saffola seed with 42 varieties (9.8%) and Agricultural Research Council with 10 varieties (2.3%). In order for breeders to benefit from their investment in research and avoid exploitation of their work, they need to be protected and receive returns on their investments. Innovation can be stimulated by proper collaboration between the private and public sectors, aided by broader variety sector legislation that encourages all players to invest.

Africa and Intellectual Property Rights for Plant Varieties

The entry into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 1 January 1995 reversed Africa’s relationship with intellectual property rights for Plant Varieties. Except for Kenya, South Africa, and Zimbabwe, no other African country had intellectual property rights systems for plant varieties before TRIPS. However, the obligation set out in Article 27.3(b) of TRIPS for all World Trade Organization (WTO) members to protect plant varieties through patents, an effective sui generis system, or a combination of systems, heralded revisions to the intellectual property laws and policies on the continent. Africa’s response to Article 27.3(b) of TRIPS was the Organization for African Unity (now African Union—AU) African Model Law for the Protection of the Rights of Local Communities, Farmers, and Breeders, and for the Regulation of Access to Biological Resources (African Model Law), adopted in 2000. Grounded on the dynamic social, economic, and political realities in Africa, the African Model Law seeks to balance small-scale farmers’, farming communities’, and commercial plant breeders’ interests. The African Model Law rejects patents for plant varieties and the wholesale adoption of the 1991 version of the International Convention on the Protection of New Varieties of Plants (UPOV). Instead, it presents a TRIPS-compliant model sui generis option that provides for access and benefit-sharing principles from the Convention on Biological Diversity (CBD), farmers’ rights from the International Undertaking on Plant Genetic Resources for Food and Agriculture (IUPGRFA), and plant breeders’ rights from UPOV 1978 and UPOV 1991. Despite the commendable efforts at creatively designing the Model Law and its historical significance as an African-rooted response to the international debates on the overlapping and conflicting international treaties for plant varieties, the Model Law failed to gain traction in Africa. No African country has adopted it. On the contrary, there is increasing pressure through a coalition of Global North countries, international organizations, and multinational firms for African countries to adopt UPOV-1991-styled plant breeders’ rights systems.