Propagating and Harvested Materials Discussed but Definitions Remain Unharmonized
CIOPORA President Andrea Mansuino served as the opening speaker for the UPOV Seminar on Propagating and Harvested Material (PM and HM) on October 24 in Geneva. CIOPORA was one of thirteen organizations (and universities) that presented their views on PM and HM during the one-day event.
After an introduction to the seminar by UPOV Vice-Secretary Peter Button, President Mansuino began his presentation with a background on CIOPORA’s 2011 request to UPOV for a document that better defines “propagation and propagating material”. This request was made as CIOPORA found no definition of propagating material in UPOV Acts which, to this day, leads to various definitions of propagating material amongst UPOV member states and therefore different scopes of protection.
In short, according to Mansuino, “The industry needs from UPOV a clear, sufficiently broad definition of propagating material which should result in a harmonized, consistent scope of protection in the UPOV member states.” Mansuino went on to discuss on the definition of propagating material differs in countries. A breakdown of these definitions was as follows:
Definition A: “plants or parts of plants, from which another plant with the same characteristics can be produced”
Recognized by 14 countries including Australia, Canada, Hungary, Mexico, Republic of Moldova, Morocco, New Zealand, Nicaragua, Romania, Singapore, Slovenia, South Africa, Tunisia, Ukraine (+ the European Union having “variety constituents”, + the United States of America having the “parts of plants” concept in its Plant Patent law)
Definition B: “plants or parts of plants intended or used for the reproduction or multiplication of plants”
Recognized by 9 countries including Azerbaijan, Belarus, Belgium, Brazil, Bulgaria, Chile, Panama, Russian Federation, Turkey
Definition C: “plants or parts thereof intended for the cultivation (growing, planting or sowing)
Recognized by 9 countries including Argentina, Austria, Germany, Israel, Netherlands, Paraguay, Poland, Republic of Korea, Switzerland
Definition D: “plants or part of plants intended / designated for the propagation”
At the end of his presentation, Mansuino reiterated the positions of CIOPORA regarding the definitions of propagating and harvested materials (as approved by the AGM in The Hague, NL, in 2014):
Propagating Material: Propagating material should include any material of a plant from which, whether alone or in combination with other parts or products of that or another plant, another plant with the same characteristics can be produced.
Harvested Material: Propagating material that (in a technical sense) has been harvested shall be considered exclusively as propagating material. Only material of a variety which is not capable, by any means, of producing another plant with the same characteristics should be considered to be harvested material in the legal sense. Harvested material should be protected directly and per se.
Mansuino concluded by saying that it is still very concerning that, 25 years after the latest version of the UPOV Convention, there is still no harmonized “scope of protection” among UPOV states and stated that CIOPORA calls for swift changes to this issue. Following the opening by CIOPORA, twelve other associations addressed their view on the matter. Below is a brief synopsis of these presentations.
2. Thor Kofoed (COPA/ COGECA Seeds WP): Mr. Kofoed provided some data about the rates of concentration of Land within the farmers and the performance of new varieties. He concluded mentioning the importance of a good relationship between farmers and breeders; in this line, farmers should be informed about the benefits of good new varieties, but in order to have innovation, rules for protection and the breeders’ exception are needed.
3. Guy Kastler (European Coordination Via Campesina): Representing small farmers, Mr. Kastler focused his presentation on the need of seeking a balance between formal and informal seed systems. The latter mostly use part of the harvest as propagating material; compelling the subsistence farmers to stop producing their own propagating material represents, according to Mr. Kastler, an attack on food security. It is the task of the UPOV to reach a fair equilibrium between the rights of breeders and the rights of farmers.
4. Michael Keller (ISF): Regarding PM, according to Mr. Keller, there must be a BROADER definition that gives more chances for breeders to exercise their rights. With respect to HM, the conditions addressed in the UPOV Convention (unauthorized use and no reasonable opportunity) are, on ISF’s view, too narrow and restrictive and do not match with the reality of the SEED business. Keller concluded emphasizing the importance of eliminating the existing gaps on the definition to avoid a misuse by infringers.
5. Axel Metzger (Humboldt Universität): Prof. Metzger introduced two relevant court cases from Germany which addressed the terms of PM and HM, “Achat” (1987) and “Melanie” (2006). These cases show that, despite of the narrow definition of the German Law of PM, the Court have interpreted the terms in a broader manner. However, according Prof. Metzger, these precedents could not be easily applied in the ornamental sector, given that the existing loopholes in the legislation could put in risk the enforcement of breeders’ rights, particularly concerning imports of legally produced flowers into the EU. Therefore, a (long-term) solution might be a different system of protection for agriculture and for ornamentals.
6. Fernando Ardila (INTA Argentina): With a more technical analysis, Mr. Ardila explained two types of reproduction manners: sexual or clonal. However, because of the development of new methods and technologies, the concepts addressed here are not easy to delimit. Therefore, according to Mr. Ardila, it is difficult to provide a collective treatment in a regulatory framework; thus, biological considerations could be integrated with utilization practices for the definition of propagation materials.
7. Herbert Zech (University of Basel): According to Prof. Zech, with respect to the condition of intention for Propagating, this should be an objective criterion, based on the intention of the buyer, but only as far as the seller could notice it. Prof. Zech addressed the two possible solutions in practice, the first, the “cascade solution” which is based on what he believes is the plant breeding value chain; the second, the “exhaustion rule”, which could be changed as consequence of a broader concept. In this case, the outcomes could be similar, but applying the exhaustion rule would shift the burden of proof (the breeder will not have to prove that the material was obtained through the unauthorized use of propagating material).
8. Gert Würtenberger (WÜRTENBERGER KUNZE): Mr. Würtenberger addressed again the court case Melanie from Germany. He emphasized that in his opinion it is not important to define the terms of PM or HM; instead the solution lies in the contractual agreements between breeders and growers.
9. Antonio Villarroel (ESA): Mr. Villarroel provided different cases of Farm Saved Seed in Spain, UK and Germany. Moreover, he analyzed the enforcement rules on HM in France and Spain. A special mention is needed in the case of France, where in in a court case in 2012, the Court held that all parties of the “chain” (reproduction, treatment and commercialize) were found guilty; this means, that the protection of the material (in this case also the harvested) is protected in the entire chain. As conclusion, he emphasized the need of clear concepts; furthermore, he mentioned the definition provided by the EU Law as a good example of it.
10. Nik Hulse (IP Australia): Mr. Hulse exposed a court case (“Barley” 2004), where the Court found that 1st generation crops are not included in the scope of protection given that the authorization is implied in the initial sale; but any other subsequent generations from farm saved seeds do need authorization from the PBR holder. Regarding the reasonable opportunity, the court held that this shall be at the first point of sale. In this particular case, the PBR holders knew that the farmers were saving and harvesting second generation of seeds, and therefore, they could have claimed rights.
11. Geert Staring (BREEDERS TRUST): Mr. Staring presented some insights about the Organization and explained their position in the case of Infringements, and provided some examples of cases that the organization has experienced.
12. Carmen Gianni (INASE Argentina): Ms. Gianni began her presentation by giving an example of how a potato could be considered propagating or harvested material, depending on its use. She explained some features that the INASE takes into account to define it, i.e. depending on temperature, packaging, etc. Ms. Gianni concluded that more than a definition is needed and there must be an effective system that provides a proper protection for PBR.
13. Antonion Villarroel (replacing Casper van Kempen – AIB): Mr. Villarroel presented on the process of grafting a plant, focusing specifically on Vegetables, and the problems that are derived therefrom. Mr. Villarroel also showed some differences that exist between the terms reproduction, propagation and multiplication; this reflects the need of clarification on the concept of Propagation itself, given that it affects the exercise of PBR.
At the end of the seminar, it was clear that the underlying confusion of PM and HM are still very present and a harmonized definition has yet to be developed. UPOV drew the following conclusions:
Propagating material and harvested material are two core concepts of the UPOV Convention
No definitions on propagating material and harvested material in the UPOV Convention
UPOV members have implemented the notions of propagating material and harvested material in their own context
One complicating factor is that the same plant material can be propagating material and harvested material
Harmonisation or consistency helps all stakeholders to understand the scope of the breeders’ rights
It is important to communicate with farmers, producers and other stakeholders involved in the value chain about the benefits of new plant varieties and therefore plant breeders’ rights
All types of farmers are necessary and complementary and the UPOV Convention has particular exceptions to cover activities of, for example, subsistence farmers
Judges have given judgments in relation to propagating and harvested material in some UPOV members
Judgments have taken into account consideration
Safeguarding of the interests of the breeders and producers/farmers
Relevant cases seem to provide satisfactory interpretations in the seed sector and the ornamental sector
It would be helpful for breeders to report on concrete issues they face
Messages for UPOV
To work on achieving a common understanding on propagating material and harvested material
A non-exhaustive list of possible factors in the Draft Explanatory Notes is useful, even if UPOV members have their own definitions
Better understanding of “reasonable opportunity” would be beneficial
The Proceedings of this Seminar can serve as a valuable source of information for UPOV members
Cases reported to UPOV will be published on the UPOV website
Messages for Breeders
Breeders may want to use the legal systems to clarify the situation
Breeders may want to cooperate on bringing cases before courts (examples AIB/Breeders Trust)
Depending on the outcome of cases legislator may decide whether to react
Breeders should ensure that effective contracts are used to be able to exercise their breeders’ rights in relation to harvested material