Plant Breeders

'Propagating materials and harvested materials: clarifying the scope of plant variety or breeder’s rights' by Charles Lawson in (2023) 18(9) Journal of Intellectual Property Law & Practice 655–672 comments 

Plant breeding faces the inherent problem of ensuring that there are no disincentives that might hamper breeders from delivering improved plant varieties to growers and bringing superior produce to consumers. Plant variety or breeder’s rights is one means of addressing these concerns, regulating for an incentive for plant breeders to develop these improved varieties. The International Convention for the Protection of New Varieties of Plants done, most recently, at Geneva on 19 March 1991 (UPOV 1991) provides a framework agreement consistent with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. UPOV 1991 provides for exclusive rights (variously called a variety right or a breeder’s right) for ‘propagating material’ and then extends this to ‘harvested material’ and the products of ‘harvested material’. The key effect of these regulated exclusive rights is to facilitate a royalty on new varieties by limiting the dealings with that variety as a reward and incentive to breed improved varieties — the virtuous cycle facilitating new and better varieties into the market for the benefit of consumers. The problem addressed by this article is the extension of the exclusive rights for ‘propagating material’ to ‘harvested material’ and the products of ‘harvested material’. This is essentially an issue about the meaning of ‘harvested material’, and specifically, that ‘harvested material’ that is also ‘propagating material’ should be considered ‘propagating material’ per se for the purposes of UPOV 1991 and national implementing laws.

'Access to biodiversity for food production: Reconciling open access digital sequence information with access and benefit sharing' by Brad Sherman and Robert J Henry in (2021) 14(5) Molecular Plant comments 

Over the last 40 years or so, a complex web of international legal agreements was developed that regulate the access, transfer, and use of plant genetic resources. These include the Convention on Biological Diversity (CBD), the Nagoya Protocol, and the International Treaty on Plant Genetic Resources (Figure 1). In developing these legal regimes, policy makers struggled to balance a number of conflicting demands. These included ensuring that access providers share in the benefits that arise from the use of their genetic resources; that users who value-add to genetic resources can protect their innovations via intellectual property; and, at the same time, that scientists and breeders have ongoing access to genetic resources. While there are problems with the existing regimes, they have reached an uneasy compromise of sorts. 

[graphic omitted] 

In recent years, dramatic changes in the life sciences have threatened to undermine this complex and fragile balance (Unamba et al., 2015). These changes have been facilitated by new genomic technologies such as gene editing and synthetic biology (McDaniel and Weiss, 2005), by improved and cheaper sequencing technologies (Shaffer, 2007) that rapidly increased the availability of DNA sequence data, and advances in whole-genome sequencing (Figure 1). Genomics is now a major source of data, rivalling big data disciplines like astronomy in the pace of data acquisition, storage, and analysis (Stephens et al., 2015). Open access international data repositories, such as GenBank, the DNA Databank of Japan, and European Molecular Biological Laboratory, that house a huge amount of DNA sequence-related data (estimated at over 1.5 billion sequences) (WiLDSI, 2020) facilitate the sharing and use of digital sequence information (DSI) (Ad Hoc Technical Group on Digital Sequence Information, 2020). The scientific value of public databases largely comes from the aggregation of data that allow scientists to identify patterns across the stored sequences (WiLDSI, 2020).

Biopiracy, Traditional Knowledge and PBR

Biopiracy and the right to self-determination of indigenous peoples' by Dieter Dörr in (2019) 53 Phytomedicine 308-312 comments

 Since over thirty years, I work on the unclear legal situation of in which indigenous peoples find themselves today in the beginning mainly in the USA and later also in Canada, Australia and New Zealand. The status of indigenous people and native nations is characterized as a mixture of national and international law. Hypothesis/Purpose: To clarify the status of indigenous people it is necessary to analyze and interpret carefully hundreds of old treaties, international declarations and covenants, national statutes and jurisprudence, especially the old leading decisions of the US-Supreme Court. Such an analysis and interpretation should prove that indigenous people have the defensive right of self determination. 

The study outlines the old decisions of the US-Supreme Court with its inherent contradictions which highly influenced the status of indigenous people in all other countries until now. It clarifies the important new developments in international law especially the non binding Declaration on the Rights of Indigenous Peoples and its effects on the interpretation of international and national law in regard to biopiracy. For this purpose it is necessary to use the methods of judgmental comparative law, historical and teleological interpretation. 

By expressly stating that indigenous peoples have a right to self-determination, the Declaration on the Rights of Indigenous Peoples of 2007 complements the protection stipulated in the Charter and the Covenants of 1966. Although the declaration itself is not legally binding as it is a resolution of the UN General Assembly, it can serve as a blueprint to show the rights that indigenous peoples can derive from international law as well as rights which should ideally be granted to them by the states even though they are not yet binding customary or treaty law. Self-determination means exactly that, it is up to the bearers of the right to decide how they want to utilize this right and then work together with the state in which they live in defining a joint framework.

'The Globalisation of Plant Variety Protection: Are Developing Countries Still Policy Takers?' by Graham Dutfield in Intellectual Property and Development: Understanding the Interfaces (Springer, 2019) 277-293 comments

Until recently, for developing and emerging economies intellectual property policy taking was the norm rather than policy making. What we mean is that the developed countries set the standards for other countries to follow. This may still be the general trend but developing nations are starting to devise their own policy approaches that other countries are imitating. This shift towards policy making is certainly noticeable. But it is not yet hugely significant. Conformity to the recommendations (and still in some cases the dictates) of developed countries, their industries, and experts from the Global North remains very common. The question arises of whether developing countries continue to be policy takers or have begun to develop their own counter-norms which are viable. As we will see there is evidence that some developing countries are indeed “translating” international obligations in some imaginative ways that may (or may not) promote their interests better. It may be that divergences between Europe and the United States in how innovations in plant science and agricultural biotechnology are protected inadvertently encourages the adoption of more flexible perspectives than would otherwise have been envisaged. However, there are massive policy challenges ahead especially due to the lack of empirical evidence on the effects of different intellectual property rules concerning plants on rural development and food security that could be used to shape law and policy. This goes far in explaining why only a handful of countries has sought alternative approaches. Further research is desperately needed.

'Traditional Knowledge and the Public Domain in Intellectual Property' by Ruth L. Okediji at 249-275 in the same volume comments

The protection of traditional knowledge is among the most vexing and morally compelling issues in international intellectual property law today. As a matter of conventional IP law, many applications of traditional knowledge—its dizzying array of expressions, forms, and utilities—easily overlay the globally ubiquitous trade secret, patent, copyright, and trademark categories. But as a matter of political and economic organization, the epistemological core of traditional knowledge is based on the distinctiveness and cultural autonomy of indigenous groups and local communities. Amid the notable arguments against recognizing proprietary rights for traditional knowledge holders, the most provocative is the claim that such knowledge is already in the public domain. The claim that traditional knowledge consists principally of public domain material has significant implications for the welfare and development capacity of indigenous groups. It undermines treaties that already acknowledge or require protection for the rights of indigenous groups and, by extension, traditional knowledge holders. Moreover, it violates central obligations of the international IP framework such as non-discrimination and protection for non-economic interests associated with cultural goods. There is no meaningful basis for the argument that exclusive property rights for traditional knowledge are unavailing because of its unique characteristics. This article addresses public domain concerns in the context of ongoing efforts to secure an international regime of protection for traditional knowledge.

It draws on her 'Negotiating the public domain in an international framework for the production of genetic resources, traditional knowledge and traditional cultural expressions' in Pedro Roffe et al (Eds), The WIPO intergovernmental committee negotiations: A history (Routledge, 2017).