At van Rooy

IP IN AGRICULTURE

3 April 2017

PART 1

WHAT IS INTELLECTUAL PROPERTY (‘IP’)?

Intellectual property (‘IP’) refers to creations of the mind: inventions,

literary and artistic works, symbols, names, images, and designs used

in commerce.

IP is divided into two categories:

Industrial property, which includes inventions (patents), trademarks,

industrial designs, and geographic indications of source; and

Copyright.

INTELLECTUAL PROPERTY RIGHTS (‘IPR’):

ARE THE STATUTORY AND COMMON LAW RIGHTS AVAILABLE FOR

THE PROTECTION OF IP.

For present purposes these include:

➢ Plant breeders’ rights

➢ Patents

➢ Registered designs

➢ Trade marks

➢ Copyright

➢ Other exclusive, statutory, and common law rights

A FEW PERSPECTIVES

THE YEAR 2050:

- projected global population = 8.9 billion

- average per capita food consumption above 3,100 kcal per day

- 40 % increase in global population requires 70 % increase in agricultural

productivity, with increased demand for livestock products.

The potential to bring new land into agricultural production is limited -

presently 1,600 million hectares under cultivation.

2050 = rise by just 5 percent (70 million hectares) (sub-Saharan Africa and

Latin America) – danger of irreparable damage & collapse - ecological

systems.

A FEW PERSPECTIVES

90% of required increase in global food production must originate

from intensified farming practices and higher yields (in a sustainable

way).

The above pose a major challenge in which IPR play a central role

– IS THE ROLE POSITIVE OR NEGATIVE?

A FEW PERSPECTIVES

IPR PLAY A ROLE IN:

- Agro-Chemicals and Animal Health increasing production

- GMO & non-GMO Plants with:

- increased yield

- improved traits:

- insect & disease resistance

- drought tolerance

- nutritional value

- enhanced biotic or abiotic stress tolerance and use of

marginal soils

“Better varieties, healthy seeds and propagation material, operational sanitary and

phytosanitary systems, effective pest management systems and farming techniques,

fertilization and trained farm personnel are critically important for food security.”

A FEW PERSPECTIVES

IPR PLAY A ROLE IN:

- GMO and non-GMO microorganisms for various purposes including

production and vaccines

- Animals with improved traits and characteristics/performance

- Technological resources (assisting in information technology,

transactions and education)

- Agricultural machinery and implements increasing efficiency and

production

“Farmers will increase production if it pays. Seventy percent of the world’s poor are farmers or

farm workers; rising agricultural prices will help them escape poverty in the medium term. An

economically viable agricultural sector where farmers benefit from higher prices and start

investing in agricultural services boosts the broader economy.” Dr. Alois Leidwein, Director for Research

Coordination, Cooperation & Innovation, the Austrian Agency for Health and Food Safety (AGES) 2011

“Plant breeders have enjoyed remarkable success in increasing the productivity of key crops.

From 1960, crop yields have increased globally by 77 percent and in developing countries by

70 percent. Improved soil management and crop rotation systems, fertilization, and plant

protection have helped to exploit the genetic potential of new varieties provided by plant

breeding.” Leidwein 2011

Plant Breeders’ Rights

PLANT BREEDERS’ RIGHTS

PLANT BREEDERS’ RIGHTS (‘PBR’) Provides a system whereunder plant

breeders' rights relating to N.D.U.S. plant varieties may be granted,

registered, administered and licensed.

Novel. – Distinct. – Uniform. – Stable.

PLANT BREEDERS’ RIGHTS

PBR is a statutory right to exclude others from dealing

with plant material (propagating and harvested material)

of a particular variety of plant without prior authorisation.

PLANT BREEDERS’ RIGHTS

International Union for the Protection of New Varieties of Plants

UPOV's mission is to provide and promote an effective

system of plant variety protection, with the aim of

encouraging the development of new varieties of plants,

for the benefit of society.

PBR

EXCEPTIONS:(A) RESALE(B) SALES FOR PURPOSES OTHER THAN THE FURTHER PROPAGATION OR

MULTIPLICATION THEREOF;(C) DEVELOPMENT OF A DIFFERENT VARIETY;(D) BONA FIDE RESEARCH;(E) PRIVATE OR NON-COMMERCIAL PURPOSES; OR( F ) FARMERS’ PRIVILEGE

PATENTS: DEFINITION OF A PATENT

A PATENT IS:

A TERRITORIALLY AND TIME LIMITED EXCLUSIVE (negative) RIGHT;

THAT IS GIVEN AS REWARD

TO AN INVENTOR (or successor in title) OF AN INDUSTRIALLY USEFUL INVENTION

WHICH IS NEW;

AND INVENTIVE

IN EXCHANGE FOR A FULL (sufficient) DISCLOSURE OF THE INVENTION TO THE PUBLIC IN A

PATENT SPECIFICATION

TO PROMOTE THE DEVELOPMENT OF TECHNOLOGY

Patents

- Discovery;- Scientific theory;- Mathematical method;- Literary, dramatic, musical or artistic work or any other aesthetic creation;- Scheme, rule or method for performing a mental act, playing a game or doing business;- Program for a computer; and- The presentation of information - Discoveries (such as a non-isolated gene or microorganism in its natural environment

without asserted utility);- An invention the publication or exploitation of which would be generally expected to

encourage offensive or immoral behaviour (biopharmacy?):

“Researchers from the John Innes Centre in Norwich, Great Britain have

obtained genetically modified tomatoes rich in anthocyanins, a category

of antioxidants belonging to the class of flavonoids. These tomatoes,

added to the diet of cancer-prone mice, showed a significant protective

effect by extending the mice lifespan.”

EXCLUDED FROM PATENTABLE INVENTIONS:

Patents

THE FOLLOWING ARE ALSO EXCLUDED FROM

PATENTABLE INVENTIONS:

➢ Any variety of animal or plant or any essentially biological process for the

production of animals or plants, not being a micro-biological process or the

product of such a process.

PATENT RIGHTS

RISK: that patent owner will prevent or inhibit exploitation of patented

technology by refusing to grant licence or charging exorbitant royalties

to detriment of resource poor farmers.

OPPORTUNITY: Resource rich companies are enticed to conduct

research contributing to food security because of prospect of

remuneration and profit.

Patents

PATENTING LIFE?

THE EUROPEAN DIRECTIVE FOR THE LEGAL PROTECTION OF BIOTECHNOLOGICAL INVENTIONS

(DIRECTIVE 98/44/EC):

Entered into force on 30 July 1998.

The EU member states implemented the Directive into their national law by 30 July2000.

Application by Kingdom of the Netherlands and others v European Parliament, andothers for the annulment of Directive 98/44/EC was rejected on 9 October 2001 (1)

PATENTS IN AGRICULTURAL SECTOR – PATENTING LIFE AND GMO

PATENTS IN AGRICULTURAL SECTOR – PATENTING LIFE AND GMO

Patents

CASE STUDYBowman v. Monsanto Co., 569 U.S. ___ (2013)

On May 13, 2013, Justice Elena Kagan delivered the Court's unanimous opinion, which affirmedthe judgment of the Federal Circuit.[5][9][20] Justice Kagan stated that while an authorized sale ofa patented item terminates all patent rights to that item, that exhaustion does not permit afarmer to reproduce patented seeds through planting and harvesting without the patentholder's permission.[5][9] Justice Kagan stated that when a farmer plants a harvested and savedseed, thereby growing a further soybean crop, that action constitutes an unauthorized "making"of the patented product, in violation of section 271(a) of the patent code.[5][21] Justice Kaganconcluded that Bowman could resell the patented seeds he obtained from the elevator, or usethem as feed, but that he could not produce additional seeds (that is, crops).[3]:37

Patents

CASE STUDY

GM SOY BEAN

Monsanto Technology LLC v Cefetra

Article 9 of the Biotech Directive states that

“the protection conferred by a patent on a product containing or consisting of genetic

information shall extend to all material, save as provided in Article 5(1), in which the

product is incorporated and in which the genetic information is contained and performs

its function”.

PATENT CASE LAW

EP 1 211 926 was filed in 2000 by the Israeli Ministry of

Agriculture for a:

“method for breeding tomatoes having reduced water content

and product of the method”

Reduced water content in tomatoes would be more suitable

for producing ketchup and other foodstuffs.

This patent was granted in 2003 and was opposed on the

basis that it involved a biological process.

Merely including a technical step to enable or assist the

performance of sexually crossing genomes of plants or of

subsequently selecting plants does not override this

exclusion from patentability.

Patents

EP 1211926

In 1999, Plant Bioscience Ltd, filed a patent for a method of selectively

increasing the anti-carcinogenic glucosinolates of Brassica (broccoli)

with the European Patent Office.

The patent was granted in 2002 (EP 1 069 819) but was opposed, on

the basis that the patent was for a biological process (finding and

marking a particular gene and breeding plants showing the marked

gene) which is excluded from patentability.

Processes for producing plants by inserting or modifying a trait in the

genome by using genetic engineering do not rely on sexual crossing of

whole genomes and may therefore be patentable. However, in such a

case sexual crossing and selection steps should not be in the claims,

since adding further technical processing steps before or after the steps

of sexual crossing and selection does not render such processes

patentable either.

Patents

PATENT & PBR ENFORCEMENT IN AGRICULTURAL SECTOR

PATENT ENFORCEMENT IN AGRICULTURAL SECTOR

PATENT ENFORCEMENT IN AGRICULTURAL SECTOR

TRADE MARK ENFORCEMENT IN AGRICULTURAL SECTOR

COPYRIGHT ENFORCEMENT IN AGRICULTURAL SECTOR

TRADE MARK ENFORCEMENT IN AGRICULTURAL SECTOR

CONCLUDING REMARKS

- IPR PLAY PIVOTAL ROLE IN AGRICULTURE AND FOOD SECURITY

- STRONG IPR REGIME REQUIRED TO ENCOURAGE DEVELOPMENT AND IMPROVEMENT OF PLANTS, ANIMALS AND TECHNOLOGY, SUPPORTING INCREASE IN PRODUCTION, PRODUCTIVITY, COMMUNICATION AND EDUCATION

- THE BENEFIT OF USING TECHNOLOGY PROTECTED BY IPR SHOULD OUTWEIGH THE COSTS

- IPR LITIGATION AND NEW IP DEVELOPMENTS PROVIDE WEALTH OF MATERIAL FOR AGRICULTURAL WRITERS

Thank you