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 5230 I EUROPEAN SEED I EUROPEAN-SEED.COM propagating material, there is a realistic chance that it is no longer covered by the PBR — neither in the country of produc- tion nor in other countries. This is why CIOPORA requests that propagating material, harvested material and products that are obtained directly from material of a protected variety must be protected directly per se. This is only an intermediate step — the concept of propagating material must be interpreted in a broad way, so that it covers each and any material which is capable of producing entire plants true-to-type. Of course, a fair and balanced law must secure that the exercise of the right is not excessive and takes place only once for plant material in a protected territory. But this must not be solved by excluding material from protection, but rather by way of exhaustion. Exhaustion is a gen- erally accepted concept for the balanc- ing of IP Rights and has the effect that products — which have been marketed by the title-holder or with his consent, in the protected territory — fall in the public domain in this territory, therefore the titleholder can exert his right to said products only once in this territory. Very important is that exhaustion is and must be a national concept, with the conse- quence that authorized production and trade of plant material in one country does not result in the exhaustion of the IP Right for this material in another country. If a breeder has parallel PBR titles in countries other than the producing coun- try, the breeder must be able to control the import of each and any plant material (pro- duced with or without authorization) into these other countries. Patent and trade- mark holders are able to do this as well. A clarification and extension of the scope of protection and its exhaustion is in the benefit of the entire production and trade chain. Clarity is a precondition to establish fair competition. Lack of clarity is used mainly by dishonest players who benefit at the cost of the honest. Licensees of breeders want them to enforce their rights against infringers in a robust way in order to establish a level playing field for all. Therefore, a sufficiently broad scope of protection, covering all products of a vari- ety, is necessary. This will not change the situation for the licensees of the breeders, but only for the dishonest players. However, the recent discussions in UPOV about propagating material and harvested material, initiated by CIOPORA, demonstrate that UPOV does not offer a definition of its key term “propagating material” and the UPOV members are far from offering a harmonized and suffi- ciently broad protection or having at least a common understanding of what propa- gating material is. As a result, several defi- nitions of the term exist within the UPOV countries, so that the material in one territory is considered to be propagating material, while it is harvested material in another. Additionally, in many countries a very narrow concept of propagating mate- rial exists, which leaves most of the plant material without protection. MUTANTS AND GMOS ARE ESSENTIALLY DERIVED VARIETIES The very reason for the introduction of the Essentially Derived Varieties (EDV) concept in the UPOV 1991 Act was to strengthen the breeders´ rights, par- ticularly by creating a balance between biotechnology inventors and traditional breeders, and to bringing mutations under the scope of protection of their initial variety. CIOPORA, therefore, maintains that mutants and GMOs — as far as they are distinct from the initial variety — are EDVs whenever they retain a very high genetic conformity to the ini- tial variety as established by the panel of experts, because mutants and GMOs per definition are predominantly derived from the initial variety. The entanglement of dependency and plagiarism — as supported by some — is a mistake in the conception of the EDV provision. Plagiarism is not a question of derivation or dependency, but rather a question of minimum distance and direct infringement. If a variety in its phenotype very much resembles a protected variety, it is not clearly distinguishable from the protected variety and its commercializa- tion is a direct infringement, irrespective of whether the new variety is (essentially) derived from the protected variety or not. We are aware that the position of CIOPORA is not in line with the position of seed breeders in this question, because the seed breeders have a different take on minimum distance and derivation. However, as mutation breeding to a far larger extent takes place in the CIOPORA crops, we should work together towards a better understanding and mutual sup- port of these concepts. ON MINIMUM DISTANCE A sufficiently broad minimum distance between varieties is one of the most important requirements for effective PBR protection. Without a sufficient dis- tance, the exclusive right of the holder of a protected variety is weakened. If PBR protection is granted for other, very similar varieties, these other varieties are considered to be clearly distinguish- able from the protected variety and thus fall out of the scope of the protection of this variety. If a breeder does not have exclusivity for his variety, the breeder cannot grant exclusivity to his propa- gators or growers. As such, competitors of the propagators or growers can pro- duce a very similar product. The result is overproduction combined with under- cutting competition. Conflicting approaches also exist between ornamental and fruit breeders on one side and vegetable and agricul- tural breeders on the other. The latter seem to advocate even smaller dis- tances between varieties. The reason might be the added value in vegetable and agricultural varieties often lies in traits, which are not considered to be phenotypic (such as disease resist- ances). Additionally, in agriculture you have the official Value for Cultivation and Use (VCU). The positive result of the VCU assessment of the variety is the precondition to enter it into the national list. The result also serves as a promo- tion tool for the breeders, because in the VCU assessment the commercially important characteristics of a variety are assessed. In ornamentals and most fruit there is no such VCU. DIFFERENT LEVELS OF PROTECTION MIGHT BE THE SOLUTION Ornamental, fruit, vegetable and agri- cultural breeders all sit in the same boat when it comes to IP protection. The pri- orities and focus might differ depending on the particularities of the crop, but in general all breeders require effective IP protection and enforcement measures. However, if for political reasons it is not possible to achieve more effective protec- tion for all crops, one might think about different protection levels for different sectors. For the breeders of vegetatively reproduced ornamental and fruit varie- ties, it is crucial to have direct protection of the flowers and fruits, i.e. of the final products, to have mutants and GMOs considered as EDV and to have sufficient minimum distances. CIOPORA will con- tinue to strive for this.