WIPOUPOV SYMPOSIUM October 25 2002 UPOV WIPOUPOV SYMPOSIUM

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WIPO-UPOV SYMPOSIUM October 25, 2002 UPOV

WIPO-UPOV SYMPOSIUM October 25, 2002 UPOV

WIPO-UPOV SYMPOSIUM UPOV October 25, 2002 LEGAL AND TECHNOLOGICAL DEVELOPMENTS LEADING TO THIS SYMPOSIUM:

WIPO-UPOV SYMPOSIUM UPOV October 25, 2002 LEGAL AND TECHNOLOGICAL DEVELOPMENTS LEADING TO THIS SYMPOSIUM: UPOV’S PERSPECTIVE Rolf Jördens Vice Secretary-General UPOV

INTRODUCTION UPOV § Importance of modern biotechnology in plant breeding § IPR protection is

INTRODUCTION UPOV § Importance of modern biotechnology in plant breeding § IPR protection is independent from commercialization procedures § Issues resulting from the differences between the scope and the exceptions of the patent and breeder’s rights systems

UPOV

UPOV

UPOV Exceptions to the breeder’s right § acts done privately and for non-commercial purposes

UPOV Exceptions to the breeder’s right § acts done privately and for non-commercial purposes § acts done for experimental purposes and § acts done for the purpose of breeding other varieties (breeder’s exemption

UPOV Exceptions to the rights conferred by a patent § Article 30 of the

UPOV Exceptions to the rights conferred by a patent § Article 30 of the TRIPS Agreement states that: “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. ” § Open multilateral treaties in the field of patents do not provide for the extent to which those limited exceptions may be permitted § Necessary to refer to national or regional patent legislation and to relevant jurisprudence

UPOV Balancing the reward to the respective rights holders (essentially derived varieties) § EDV

UPOV Balancing the reward to the respective rights holders (essentially derived varieties) § EDV concept maintains the access of all varieties for breeding § EDV does provide a mechanism to ensure a suitable reward for plant breeders

The ability to exercise the breeder’s exemption in the case of varieties containing patented

The ability to exercise the breeder’s exemption in the case of varieties containing patented inventions UPOV § purpose of the patent is to protect the developer of the genetic element § purpose of the plant breeder’s right is to protect the developer of the unique combination of plant germplasm forming the variety § exercise of breeder’s exemption constrained due to lack of similar provision in patent system

UPOV PROVISIONS WITHIN THE TRIPS AGREEMENT WHICH MIGHT ALLOW THE PRESERVATION OF THE BREEDER’S

UPOV PROVISIONS WITHIN THE TRIPS AGREEMENT WHICH MIGHT ALLOW THE PRESERVATION OF THE BREEDER’S EXEMPTION § Article 7 and 8(2) of the TRIPS Agreement § State could be able to implement Article 30 in a way that protects the breeder’s exemption

UPOV CONCLUDING REMARKS § rapid progress in the development of genetic engineering § increasing

UPOV CONCLUDING REMARKS § rapid progress in the development of genetic engineering § increasing number of plant varieties will contain patented inventions § practical consequence: breeder’s exemption could be lost or greatly weakened § a “burning issue” § how the breeder’s exemption could be preserved ?

UPOV

UPOV