The use of biotechnological tools and other techniques to improve crops has given
rise to a significant increase in the patenting of plant components and plants. At the
same time, the exclusionary rights conferred by patents have generated concerns
about their implications for a sustainable agriculture and food security. As a result
of these trends, it becomes critical to examine the intersection between plant
breeding and patent rights. This book makes an original and important contribution
to this still relatively unexplored area of research.
A few countries grant patent rights on plants as well as plant varieties as such.
While most jurisdictions exclude plant varieties from patentable subject matter,
they allow for the patent protection of genetic constructs, including in some cases
isolated genes, used to modify plants. The protection of different biological materials
contained in plants may lead to the control over the plant varieties themselves,
even if the law does not permit their patenting.
Plant breeding proceeds through the continuous improvement on existing plant
varieties. Ensuring access to such varieties as a source for further research and
breeding is crucial for farming systems. This has been recognized under plant
variety protections regimes, which provide for a ‘breeder’s exception’ allowing
third parties to use protected varieties to develop new ones. However, patents rights
can normally be exercised to restrict such use, thereby raising questions about the
continuous improvement of crops, the impact of such rights on the plant breeding
industry and the adequate supply of seeds to farmers at affordable prices. Such
questions become particularly relevant in a context of high concentration of patent
ownership in a small group of large biotechnology-based companies.
An outstanding issue is, hence, the extent to which the patent law can be framed
so as to allow for a kind of ‘breeder’s exception’ for further breeding when patented
elements exist. This book addresses in detail this issue, particularly what could be
the scope of an exception for that purpose admissible under the Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the
World Trade Organization (WTO).