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Legislator to decide on conflicting rights

Over the last couple of years, plant breeders have become increasingly aware of patent rights on plants.

Because of differences between the patent system on the one hand and the breeder”s rights system on the other, a conflict has arisen between the breeders community, that, as a rule, is not often concerned with patent filing and the usually larger companies that file for patent protection regularly.

The conflict focuses on the possibility of breeders to develop new varieties starting from a known variety. The breeder”s right system allows the use of a protected plant variety as basis for attempts to breed a new plant variety. This is also referred to as the breeder”s exemption. Conversely, it is held that such activity is not exempted on the basis of the research exemption in the patent law.

Although the European directive on the protection of biotechnological invention does provide for a crosslicence option, it is generally understood that such a solution would not work in practice (and it has never been used so far).

The inequity with respect to the breeder”s exemption has been recognised by the government and last year a working group was established to report on the consequences of this conflict. The report was issued early this year with some recommendations, one of them being that the government provides an equalisation of both law regimes to enable plant breeders to continue their economically important activities without fear of infringement.

This report and its consequences were recently discussed in the Dutch parliament. As a result, the parliament has now ordered the government to study the possibilities and consequences of amending the patent law and (the implementation of) the EC biotech directive to include such a breeder”s exemption: either a limited version (only exemption during development of the new variety) or a full exemption (commercialisation of the new variety is no longer infringing).

Further, the government has been ordered to start or continue discussions with the stakeholders – breeders organisations, plant patent holders and social and economical organisations – to come to a generally acceptable arrangement. The results of this will be discussed in parliament in a few months.