Francesco Mattina was appointed as President of the Community Plant Variety Office (CPVO) by the Council of the European Union in December 2021. He officially started his presidential duties in February this year. In June 2022, FloraCulture International sat down with the 51-year-old lawyer by training, born in Naples. He weighs his words when he talks about his organisation’s past, present and future.
The Community Plant Variety Office (CPVO) is a self-financed EU agency responsible for managing the Community Plant Variety Rights System. Located in Angers, France, the CPVO was created by the Council Regulation 2100/94 and has been operational since April 1995.
CPVO President Francesco Mattina: “In 2013, the CPVO appointed me as its new Head of the Legal Unit due to my background as a lawyer by training versed in Intellectual Property (IP), the enforcement of IP rights, and IP litigation in several EU members states. I subsequently moved up within the organisation to become CPVO’s Vice-President for almost four years. Then, the position of President became available. I applied for the job and in December 2021 the Council of the EU appointed me for a first five-year term.”
“Before joining CPVO, patents, trademarks, and copyright were among my core activities, allowing me to become familiar with innovation in several diversified, highly technical fields. Also, and this may sound banal, I’ve always been interested in agriculture innovation from an early age, even considering becoming an agricultural engineer instead of a lawyer for a while. In my role as CPVO President, you must genuinely put yourself into the breeder’s shoes to understand the innovation. What’s more, understanding the innovation value chain in plant breeding helps communicate complex and technical information in a way that’s digestible for judges or the public.
“Within the CPVO, we work with qualified technical experts from agriculture and horticulture and legal experts to understand the two sides of the coin: the legally/regulatory and technical matters. The complexity of the different aspects is the most fascinating part of this job from my professional viewpoint.”
“However, I cannot deny it also comes with challenges as talking with technical experts sometimes is difficult. There is a tendency to speak different languages so we must continuously try to agree and understand each other.”
“For many years, there has been a stable increase in the number of applications. But last year, we saw a decrease in ornamentals which may be due to the start of the pandemic. We should remind that cut roses are the sub-sector with the most CPVR applications in ornamentals.
“Honestly speaking, the CPVO needs to build in-house technical data and analytics capability to better understand the business trends for the coming years. We also need to recognise and address new demands concerning the European Green Deal policy initiatives coming our way. Because these policies put sustainable production under increased scrutiny, we should be aware of the impact of climate change in the different EU regions where flowers are grown.
“More stats on business structure are needed. Our new study – carried out in association with EUIPO (European Union Intellectual Property Office) – on the impact of the Community Plant Variety Rights system (CPVR) on the EU economy found that small and medium-sized enterprises (SMEs) are the backbone of Europe’s economy investing in plant breeding. These small companies account for more than 90 per cent of the registrants of CPVRs and hold 60 per cent of all CPVRs currently in force.
“The key conclusion is that these breeding businesses pass from generation to generation with many individual and highly specialised breeders dotting the business landscape. One should realise that you cannot start a breeding company overnight; there’s tradition, a legacy, and research intensity. Managing several lines of genetic material involves a long process for a new variety to successfully reach the market by being accepted by farmers, growers and final consumers.
“These are important data for the EU to remain globally competitive with countries such as the USA. Europe is a treasure trove of specialised crops owned by SMEs and not only by multinationals per se. This fact is important to reflect upon when framing the topic into the EU actions to support economic recovery post-Covid.
“In 2020, the EU adopted the communication Making the most of EU’s Innovative Potential; an intellectual property action plan to support the EU’s recovery and resilience. This plan is now in its second phase and is highly relevant to the global ornamentals sector. In terms of the geographic concentration of flower-producing areas, we all know the importance of Africa -Kenya and Ethiopia- and South America – Colombia and Ecuador. Flower breeders from the Netherlands, France, Italy and Germany are active on these continents. And we all know about the EU’s efforts to create a level playing field and the free trade agreements that are key to achieving that. Making the necessary legal environment for EU companies to operate and invest in these countries is not always easy. Ethiopia is not a UPOV member. More generally speaking, implementation under the UPOV framework is frequently controversial or opposed by NGOs based on what I call emotional arguments or politically distorted arguments.
“One may remember the time in which Ecuador’s extremely high application fees for PBRs created a barrier to investment in that country. CIOPORA made an awful lot of effort to solve the problem but to date problems of compliance in these countries persist.”
“It was the right momentum because of the many challenges we face since the global health crisis and another humanitarian crisis which is currently unfolding since March this year. The study is also relevant in priority decision-making within the EU Commission today and in the years to come. It should help substantiate decision-making with something that is objective and leaves room for better policy making. And yes, it is independent and carried out by the European Observatory on Infringement of IP rights, an independent body regulated under sister agency EUIPO.
“CPVO submitted data from registries to be matched with Orbis Europe, the comparable data resource on private companies. Our main concern was to remain as objective as possible and to use the right tools to measure and interpret the data. While there was an overlap with other EUIPO studies ours was more complex. We had to investigate agriculture and horticulture, define the different business models, the impact of the Green Deal, the impact of the CPVR system on competitiveness of EU growers and farmers, and the impact on the environment and the labour market. Our aim was to collect as much information as possible and I would like to think it laid a strong foundation for future studies to dig deeper into certain aspects. We did not include CPVR infringement and enforcement because that was out of the scope of this study. We will probably set up a separate initiative for that, approaching things from a different angle.”
“I think these are two different issues, two different IP rights. Here, we should reference not only plant breeders but also farmers. Professional farmers – those who make a living out of farming, providing income and decent living conditions to their communities – want the best variety to grow under their climatic conditions.
“In the seminar presenting the outcome of our study, the President of the European Council of Young Farmers (CEJA), Mrs Diana Lenzi, confirmed that nowadays, young farmers want reliable varieties, access to innovation, something they can grow hassle-free which is acceptable for the end-consumer. A patent is another type of intellectual property right. The obligation to protect plant varieties by an effective sui generis PVP system stems from Article 27 of the Trade-Related Intellectual Property Rights (TRIPS) agreement.
“This system is deeply rooted in the specificities of plant breeding, so I think that the mechanism of PBR adopting a sui generis system fulfils the breeders’ demands. The breeder’s exemption makes the system open and enables smaller breeders to invest in and access the system. All this would not be possible under the patent mechanism.
“Another argument is that a patent is usually an IP right system designed to protect key inventions. To get access to patent protection the legislation imposes certain strict requirements in terms of patentability. And this in my view is not fit for purpose for plant breeding in general.”
(laughing) “Three years ago, we embarked on an experiment that addressed assortment. Plant professionals took certain ornamental varieties belonging for instance to the Pelargonium genus, which were illustrative. Breeders attending the test were satisfied with the system as it is. They didn’t claim the differences were too small. A small difference from the breeders’perspective is enough at the end of the day. Indeed, there might be different opinions. We as CPVO supported this experiment with the collaboration of Germany’s Bundessortenamt. There was a strong request from CIOPORA to do that, and I personally attended. The present Chrysanthemum breeders told me that what they have is what they want. And yes, when we observed several varieties, and I am not a DUS expert, I could see the differences. And this was well before the DUS expert of the Bundessortenamt explained to me the difference. However, the work of the DUS examiner must be well-reflected in the DUS final report and variety description because on that basis we decide whether to grant or not a plant variety right. So, we rely on the technical expertise of examination offices.”
“The amendment of the UPOV Convention would require a diplomatic conference, and that’s a highly political process. Some breeder organisations, such as CIOPORA, believe we should have stronger protection. That there shouldn’t be a cascade principle concerning harvested material. Personally, I think that the specificities of the subject matter of a PBR being a living organism call for a reflection on the more adequate sui generis IP system that can support innovation, and I am conscious that there are areas that can be improved, for instance, provisional protection.
“The UPOV convention establishes minimum rules that allow marginal flexibility in certain provisions, such as applying the farm-saved seed (farmer’s privilege) mechanism into international legislation. This is not a mandatory exception to the PBR right. So, I think there’s enough flexibility for enacting the legislation in different countries. Also, we should not confuse the principles of the UPOV system with the implementation and the difficulties that you can encounter when you want to implement and eventually enforce your rights into a national system. UPOV membership is one thing; implementing it into the national system is something different.
“Over the last ten years, we have heavily invested in digital preparedness in a user-friendly, accessible system that allows breeders – including the smaller ones – to easily apply for protection at reasonable costs. Our wish is to have a fully digitalised application process from A to Z. It is important to see this in the light of strategic collaboration with other institutional partners such as UPOV Prisma, the online tool to assist breeders in making PVP applications to PVP Offices of participating UPOV members.”
“In liaising with the Commission, we are trying to prioritise the revision of our basic regulation, the founding act of the PVR system. The general opinion is that the CPVR system functions well overall and that CPVO’s voice is heard in the UPOV and the international arena when it comes to trade negotiations with third countries vital for Europe’s ornamental horticulture.
“However, some of the challenges that could be adressed under the revision is the question as to whether we should strengthen the provision of protection, a demand from the breeding industry. I see room for improving the provisional protection period under the UPOV convention. Today, provisional protection means you don’t have the full right because it is before the granting date of PBR. In that period, you cannot claim damages because there is no right granted yet. Once you have the title granted you can claim a reasonable compensation from the entity or person who made use of the variety before the protection was granted. However, the UPOV convention establishes that this is only a minimum requirement to safeguard the interests of the breeder. And indeed, there are some jurisdictions where you have a stronger provisional protection. Also, thinking by analogy, mutatis mutandis to other IP rights, I don’t think that PBR should be an exception. And I do think we could improve by making the PBR stronger in relation to the provisional protection period.”
Cut roses are the sub-sector with the most CPVR applications in ornamentals.
“After my first term there is a new one, so I would like to go for a second term. We are now reorganising our Office internally to become a more future-proof, efficient and flexible organisation. Our five-year strategic plan is to be adopted this October by the Administrative Council. So, I do believe, and I hope that we can fulfil our ambitions in becoming a rightly digitalised centre of excellence, a knowledge-based institution that is influential in supporting the EU decision-making. So, my desire is to strengthen our network to make understand the pivotal role of plant innovation.”
“The responsibility to enforce the PVR is in the hand of the owners of the right, therefore breeders. However, we are not indifferent to the issue. The Office has always been supportive in raising awareness and promote activities to raise awareness of judges and national administrations. For many years, we have organised enforcement seminars with breeding organisations in different member states. But I do think the key to improving is reinforcing the network within different groups of stakeholders. As of next year, we will start to promote the PVR Academy, to explain to a wider audience the intricacies of the system. We have much expertise and content and we want to make it available in a more structured way. In the field of IP institutions there are already several academies in place (WIPO, EPO and EUIPO). So, creating just another one is not sustainable. Our conclusion has been to partner with EUIPO, which is the European Agency with which we have the stronger cooperation in the field of IP rights.”