esa european seed associationcpvo.europa.eu/.../presentations/suelmann_ppt_en.pdf10 10 2005 esa...
TRANSCRIPT
-
ESA European Seed Association
Do the legal enforcement tools meet Do the legal enforcement tools meet the needs of the breeders ? the needs of the breeders ?
Marian Suelmann Chairperson of the ESA Committee Intellectual Property and
Breeders Rights (CIPR)
Seminar on enforcement of PVR – Spain 2223.02.07
-
10102005 ESA European Seed Association 2
Topics Topics
1. Introduction
2. Complicating matters in respect of enforcement
I. Variety listing II. No acknowledgement of reports of CPVO
examination offices III. Farm saved seed IV. Directly obtained products:
“reasonable opportunity”
3. Conclusions
-
10102005 ESA European Seed Association 3
1. 1. Introduction Introduction • For ESA the UPOV 1991 Convention is the most suitable existing sui generis intellectual property system for the protection of plant varieties per se
• ESA urges all UPOV members to ensure harmonisation by implementing the UPOV 1991 Act
• The Community Plant Variety Right (CPVR) is a good example of such implementation
• There is a need for effective means of enforcing IP rights
-
10102005 ESA European Seed Association 4
Investment in plant breeding Seed business: Investment in research: 1215% turnover
-
10102005 ESA European Seed Association 5
Commercial Commercial value value
• Price per tomato seed 0,25 Euro cent
• One tomato seed 18 kg of tomatoes
• Entire proceeds 16 Euro for grower
-
10102005 ESA European Seed Association 6
Gold price: 15.200 Euro
-
10102005 ESA European Seed Association 7
• One kg of tomato seeds 62.500 Euro
• Turnover grower 4 million Euro
• Turnover supermarket 8 million Euro
-
10102005 ESA European Seed Association 8
-
10102005 ESA European Seed Association 9
-
10102005 ESA European Seed Association 10
2. 2. Complicating matters Complicating matters
I. Complications regarding variety listing II. No acknowledgement of reports of CPVO
examination offices III. Farm saved seed. IV. Directly obtained products
“reasonable opportunity”
-
10102005 ESA European Seed Association 11
I. I. Variety Listing Variety Listing
Infringing variety is ‘officially’ registered:
• Registration of variety that is not distinct from older variety
• Selling the illegally produced seed under denomination of another variety
-
10102005 ESA European Seed Association 12
Solution: • Action on own initiative of examination offices/authorities and cooperation of authorities (incl. examination offices)
• Accreditation of examination offices; objectivity of accrediting body (unit) should be guaranteed
-
10102005 ESA European Seed Association 13
II. No II. No acknowledgement acknowledgement of of reports reports of of CPVO CPVO examination examination offices offices
• Ignorance of official reports of examination offices by courts
• Appointing own experts
-
10102005 ESA European Seed Association 14
Solution:
• One competent court
• Accreditation of examination offices; objectivity of accrediting body (unit) should be guaranteed
-
10102005 ESA European Seed Association 15
III. Farm III. Farm saved seed saved seed
Art 15.2 of UPOV ’91: Exception to the Breeder’s Right Provides for the use of FSS • Within reasonable limits • Subject to the safeguarding of the legitimate interest of the breeder
Optional exception: ESA is not in favour of implementation
-
10102005 ESA European Seed Association 16
NO FARM SAVED SEED ALLOWED FOR: ORNAMENTAL CROPS AND VEGETABLE CROPS!!!
-
10102005 ESA European Seed Association 17
In practice, breeders are facing, in numerous cases, serious difficulties to obtain information on the use of FSS and consequently are not able to enforce their rights and collect royalties
ê
This situation is not acceptable
-
10102005 ESA European Seed Association 18
• The legitimate interests of breeders must be safeguarded by providing for an obligation for farmers to pay remuneration at the level of the royalties.
• Small farmers should not be exempted from the obligation to pay remuneration.
-
10102005 ESA European Seed Association 19
• The users of farm saved seed should be obliged to deliver respective information on the use of farm saved seed without any further conditions to be fulfilled by the holder of the right.
• The use of farm saved seed should only be allowed for species where, traditionally, farm saved seed has been used.
-
10102005 ESA European Seed Association 20
Parental Lines AxB
F1 hybrid AB
Tomatoes of F1 plants => seeds (F2)
-
10102005 ESA European Seed Association 21
IV IV Directly obtained products Directly obtained products
The protection also extends to harvested material:
if the harvested material was obtained through the unauthorized use of variety constituents of the protected variety
and unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.
-
10102005 ESA European Seed Association 22
Art. 13.4 of the regulation on CPVR states that the implementing rules may provide that the CPVR also applies to products directly obtained from material of the protected variety:
if such products were obtained through the unauthorized use of material of the protected variety
and unless the holder has had reasonable opportunity to exercise his right in relation to the said material.
-
10102005 ESA European Seed Association 23
To increase the number of enforcement tools, we urge the EU and its Memer States to provide for extension of the protection to directly obtained products.
-
10102005 ESA European Seed Association 24
“ “Reasonable opportunity Reasonable opportunity” ”
and unless the holder has had reasonable opportunity to exercise his right
applies to harvested material / directly obtained products
“his right” = CPVR = only enforceable within the EU
-
10102005 ESA European Seed Association 25
Example:
Export by other than CPVR holder to third country: The CPVR holder had no reasonable opportunity to exercise his right as he will not be informed about the export.
Reproduction in third country: The CPVR holder has no opportunity to exercise his CPVR in the third country.
-
10102005 ESA European Seed Association 26
Calluna case:
German court case, 14 February 2006 (X ZR 93.04):
Breeders are not necessarily under the obligation to apply for plant breeders’ rights in all countries where plant breeders’ rights systems exist, in order to enforce their rights regarding harvested material.
-
10102005 ESA European Seed Association 27
Reversal Reversal of of burden burden of of proof proof
Article 107.2 of the Italian Industrial Property Code:
“Use shall be presumed unauthorized in the absence of proof of the contrary.”
-
10102005 ESA European Seed Association 28
3. 3. Conclusion Conclusion and and Recommendations Recommendations
• Implementation of UPOV ‘91 (as the CPVR Regulation)
• Own initiative from companies
• Action on own initiative of examination offices/authorities
-
10102005 ESA European Seed Association 29
• Acceptance of official reports from CPVO examination offices
• Accreditation of CPVO examination offices by objective body/unit
• One competent court per country, preferably one in the EU
-
10102005 ESA European Seed Association 30
• Farm saved seed: information obligation
• Extension of protection to directly obtained products
• Reasonable interpretation of “reasonable opportunity”
• Reversal burden of proof
-
ESA European Seed Association
Thank you for your attention Thank you for your attention
Contact details:
ESA Rue Luxembourg 23 B1000 Brussels
Tel: +3227432860 www.euroseeds.org