'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).
