CIOPORA, CPVO, AIPH and FloraCulture International are proud of what is already the 13th annual update on Plant Breeders’ Rights, a relevant communication tool for all stakeholders within ornamental plant breeding in FCI June 2022. This 19-page supplement will inform and inspire industry players on effectively protecting genuine innovation in the vegetal world. This introduction is by Dr Edgar Krieger, Secretary General of CIOPORA
“In the Plant Breeders’ Rights law of the European Union, the CPVR Regulation 2100/94, one of the best, if not the best in the world, has several loopholes.
A variety should be declared distinct only if it differs in important characteristics from all other varieties in common knowledge. Still, in the DUS examination, all characteristics of a variety are considered equally important for the evaluation of distinctness. This situation generates that wide varieties are granted CPVR that are too similar, preventing the original breeders from earning a fair return on their innovation.
Breeders are still waiting for effective protection between the application and the grant of the CPVR title. Based on the Nadorcott decision of the European Court of Justice (C-176/18), there is no protection against unauthorised propagation during the provisional protection. The serious consequence is that breeders cannot enforce their rights on the harvested material coming, for example, from trees propagated during the provision protection. But the risk is bigger: because the CJEU ruled that if no authorisation is required by a third person to propagate the variety, the requirement of “unauthorised use of variety constituents” for exercising the breeders’ right on the harvested material is not fulfilled. Therefore, it is risky to introduce varieties in countries without a PBR law or where breeders do not have titles. For this reason, more and more breeders hesitate to introduce their newest varieties at an early stage, affecting growers and consumers who have to wait longer to enjoy better varieties.
According to the clear definition in Article 5 of the CPVR Regulation, variety constituents are entire plants or parts of plants as far as such parts are capable of producing entire plants. However, still, some authors of legal commentaries claim that a ‘variety constituent’ is a material intended for propagation.
A cut rose is a variety constituent because it is capable of producing an entire rose plant true-to-type. But following this misinterpretation, it would be considered harvested material and would enjoy much less protection.
These examples are only a part of the challenges faced by the breeding sector. At CIOPORA, we know that achieving all the necessary changes is difficult.
Still, we are confident that by working with other organisations and stakeholders, the voice of our breeders will be heard, so those plant innovations will be protected effectively.”