Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68EUROPEAN-SEED.COM I EUROPEAN SEED I 15 by the state secretary on agriculture, Sharon Dijksma, who was recently replaced by Martijn van Dam. “Because of the concerns, the Dutch government decided that during the Dutch Presidency of the EU, the perceived disturbed balance in IP on plant innovations should be placed on the agenda. The European Parliament was not in agreement with the EPO decision on the broccoli and tomato cases, so it was agreed with the Dutch government that this should become an important topic,” van Winden says. “During this whole process, the Dutch government has realized that achieving a comprehensive breeder’s exemption in the EU Biotech Directive was going to be a very long and difficult process, as it would require opening the Biotech Directive. So it wishes also to limit the granting of patents in this field,” van Winden adds. He underlines that the ILP enables all members to get licenses for using patented germplasm under Fair, Reasonable a nd Non-Discr i m i nator y (FRAND) conditions. Edgar Krieger, secretary-general of CIOPORA, feels this event was organized to limit the amount of patenting in plant innovation. “It is a well-known fact that the Dutch government wants to limit the amount of patents in the plant breeding sector,” he says. “However, after the symposium it is unlikely that the Dutch government will continue to steer towards opening the EU Biotech Directive. The EU Commission’s decision to develop guidance with an interpretation on patenting of plant innovations will now be used to influence EPO.” Michael Kock, head of intellectual property at Syngenta, confirms that the Dutch government seems to be moving away from the comprehensive breeder’s exemption. “ T he development process of a guidance document is not going to be an easy process and may not provide the legal certainty needed. Syngenta supports higher transparency, the ILP, the PINTO database, and we are aware that the EU Commission is also supportive of these measures,” says Kock. “The EU Commission’s ability to influence the patent granting practice at the EPO is limited. A pragmatic solution including industry-led elements might be more efficient, especially as there are bigger issues at hand that should deserve much more attention, such as the freedom to operate on new breeding methods and the implementation of the Nagoya protocol. Syngenta hopes that this symposium will close the subject.” Disagreement It might seem that the EU Commission and most organizations are convinced it would be a bad idea to open up the Biotech Directive. In fact, NPoS, which also took the stage during the symposium, disagrees. Christoph Then of NPoS mentioned that his organization is convinced that there can be no patenting of products produced via essentially biological processes. In case this goal cannot be achieved by clarifying the Directive, then it would be necessary to change the Biotech Directive, according to Then. When asked, the EPO declined to comment on the event itself, other than to say that the situation is rather complicated since the conclusion of the event. One can imagine that EPO has been observing this event with special interest, as the underlying aim of many participants seems to be to overturn the EPO decision in the tomato and broccoli cases. However, it should be noted that the EU Commission and the EPO are two separate organizations. The EPO in its capacity as patent-granting authority for European patents under the European Patent Convention (which has a broader geographical coverage than the EU) is not bound by a guiding document or clarifying notice issued by the EU Commission. Clarifying Notice At the end of the symposium, the EU Commission decided to work on a clarifying notice designed to examine relevant provisions in the Biotech Directive, and indicated that this notice is part of a package solution. Other elements of the package include endorsing practical solutions such as a higher transparency (e.g. the PINTO database), licensing possibilities (e.g. ILP), increased cooperation between the CPVO and the EPO, and raising the bar for ensuring high-quality patents. Such a notice has no legally binding effect, and the EU Commission is aware of that. The head of the IP unit of the EU Commission, Jean Bergevin, said that “such a notice still offers a satisfactory solution in terms of interpreting the scope of the Biotech Directive.” However, several participants stated that a notice that is not legally binding opens the door for legal uncertainty. Bergevin also implied that only the EU Court of Justice can further clarify the scope and intent of the Biotech Directive. A f ter t he s y mposiu m, Dom i n ic Muyldermans, senior legal consultant at Croplife International, said, “It was disappointing to see that the EU farmer’s organization COPA-COGECA is so adamant in their anti-patent approach. This does not match their pro-innovation talking points and disregards the value of agricultural innovations for farmers.” “The development process of a guidance document is not going to be an easy process and may not provide the legal certainty needed.” – Michael Kock Martijn van Dam, Dutch state secretary of agriculture, addresses the crowd. He further mentioned that all relevant stakeholders representing the plant industry would continue to engage with COPA- COGECA. “It should be noted that COPA- COGECA is a member of the EU Food and Feed Chain (FFC) and the Agri-Food Chain Coalition (AFCC) and lately, the AFCC has taken a strong pro-innovation stance. Innovation in agriculture is absolutely crucial for farmers and society alike. It is important that farmers understand that different types of intellectual property are crucial to their advancement.” The current Dutch strategy with regards to the patenting of products of essentially biological processes is to aim for a legal interpretation that will provide a clarification of the position of the Biotech Directive, said de Roos. “As the intention of that Directive was to provide patent protection for biotechnological inventions, the scope was never meant to cover traditional crossing and selection or the plants resulting therefrom.” “Once the Commission has provided guidance for the member states, then the EPO policy will need to follow. The question is whether all 28 member states are committed to taking this a step further within the Council of the EPO, where it will take 38 countries to decide,” she adds. “Plantum realizes that the road towards and beyond a legal interpretative document is going to be a long one. However, this problem needs to be solved and if this is how it can be achieved without having to open the Directive, we should give it a fair try. But let’s be clear, if this doesn’t work, there is only one alternative for Plantum, and that is an amendment of the Directive.”