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CIOPORA Delegation Visits USPTO, USTR for Discussions

On December 6, a CIOPORA-US Delegation met with the US Trade Representative (USTR) and the United States Patent and Trade Office (USPTO) to discuss critical issues for the horticulture industry in the United States and beyond.

USTR Meeting

On December 6, the CIOPORA-US Delegation met with staff members of the office of the USTR in Washington, DC. The USTR is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy, and overseeing negotiations with other countries and is a part of the Executive Office of the President of the United States.

One of the main tasks of the USTR is the preparation of the Special 301 Reports. These reports identify trade barriers to US companies and products due to the intellectual property laws in other countries. Each year, the USTR must identify countries which do not provide "adequate and effective" protection of intellectual property rights or "fair and equitable market access to United States persons that rely upon intellectual property rights". By statute, the annual report must identify a list of "Priority Foreign Countries", those countries judged to have inadequate intellectual property laws; these countries may be subject to sanctions. In addition, the report contains a "Priority Watch List" and a "Watch List", containing countries whose intellectual property regimes are deemed to be of concern.

The purpose of the meeting was an exchange of information between CIOPORA and the USTR about the global IP situation for ornamental and fruit crops, with a focus on specific countries including Mexico, Ecuador, China, India, Argentina and Chile.

“We feel that the USTR staff were very welcoming to the CIOPORA/US Breeders’ initiative to increase cooperation and share information on a regular basis,” said Steve Hutton, CIOPORA President. “The USTR was receptive to our delegation’s information about the sector-specific issues of ornamentals and fruits. It seems that we were able to increase the office’s understanding of the importance of the horticultural industry in the US.”

Detailed information and supporting opinions were shared regarding the six countries highlighted on the agenda, and the USTR thanked CIOPORA for the insights delivered, both from legal analysis of the PBR laws as well as practical experiences of the CIOPORA members.

“We were able to contribute - with specific and up-to-date information of the political and governmental discussions on IP in the target countries - based on our daily work and the excellent network of CIOPORA,” said Cynthia Mathiesen of Driscoll's. “To me, this is a sign that our association needs to communicate more to this and other governmental bodies.”

Moving forward, CIOPORA will regularly share information with our new contacts at the USTR and will also contribute input to the USTR’s 301 Report and describes the priorities work of the USTR within these countries. CIOPORA believes IP for plants should have a more prominent place in these discussions.

USPTO Meeting

In addition to the visit to the office of the USTR, the CIOPORA-US Delegation met with the Acting Director of the USPTO, Joseph Matal, and office’s leading staff members and plant examiners.

The main point on the agenda of the meeting with Mr. Matal was the missing EDV concept within the US Plant Patent Act. (See additional information on the EDV Concept – or lack thereof – in this article.) Although it is the task of the US legislator, and not the USPTO, to change the Plant Patent Act, the matter is of relevance for the USPTO which is the body that administers this piece of law. The CIOPORA-US Delegation explained the background of the EDV Concept in the UPOV 1991 Act and the consequences of its absence in the US Plant Patent Act. It was made clear that not having an EDV concept in this Act results in a discrimination of the ornamental and fruit breeders, compared to the seed agricultural breeders, which benefit from the EDV Concept in the US Plant Variety Protection Act (PVPA), and compared to Utility Patent holders who benefit from the general principle of dependency in the US Patent law. It was agreed to continue the discussion and to study possible options to address the matter.

In the meeting with the Plant Examiners, one main topic was Minimum Distance, which corresponds to the requirement of distinctness / non-obviousness in the US Plant Patent Act. The CIOPORA-US Delegation reminded the Examiners that the Plant Patent exists to grant to the breeder an exclusive right over his variety and that a too-small distance between varieties would weaken or even abolish such exclusive right.

Another crucial point on the agenda was to receive more clarity on which acts and publications would trigger the start of the one-year period of grace in the US. In a nutshell, the Examiners seem to follow the policy that written publications alone would not trigger the grace period, as no one would be able to develop a plant only on the basis of a written publication. Therefore, only written publications combined with a sale or offer for sale would have the potential to trigger the period of grace.

CIOPORA will continue the conversations with both the USPTO and USTR on critical points raised during these meetings.

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