Proven and Effective Measures of PBR Enforcement - Presentation on behalf of ISF Stephen Smith Chair ISF IP Committee International Symposium on ...

Proven and Effective Measures
     of PBR Enforcement
             Presentation on behalf of ISF
                    Stephen Smith
                Chair ISF IP Committee
  International Symposium on Plant Breeders Rights
             August 30 2011, Mexico City

Presentation Outline

• Introduction
  – Plant Breeding and Agriculture contribute to food,
    health, economic, and environmental security
  – Importance of effective IPP
• Main Types of Infringement
  – Miss-appropriation (direct or via plagiarism)
  – Illegal Sales
  – Farm Saved Seed
• Proven Solutions

Introduction: Importance of Effective IPP
• Plant Breeding supports Agriculture
   – HUGE dependence upon new improved plant varieties
• Plant Breeding requires investments
   – Investments undermined by ineffective intellectual property
     protection (IPP)
• ISF is in favor of strong and effective IPP (ISF View 2009)
• Effective IPP promotes
   – Investments into breeding improved varieties
   – Continued genetic gain, increase agricultural
     productivity
   – Use of a greater diversity of genetic resources
• UPOV 1991 is the minimum level of effective IPP

Faster Genetic Gain in Wheat with PVP Farm Saved Seed Royalty Schemes
     Average yields for wheat varieties introduced between the 1970s and 1990s in the United States, United Kingdom, and France
Source: Constructed from data reported by Brancourt-Humel et al., (2003), Donmez, Sears, Shroyer, and Paulsen (2001), Fufa et al.,
                               (2005), and Shearman, Sylvester-Bradley, Scott, and Foulkes (2005).

Types of Infringement and Consequences
   for Plant Breeding, Agriculture, and
           Ultimately to Society

Types of Infringement

• Unlawful appropriation of germplasm for seed
  production and sale
  – Directly by copying
  – Certain vegetable hybrids can be
    copied by grafting or tissue culture
  – Or by plagiarism
• Illegal sale of protected varieties
  – (“brown bagging”, “bolsa blanca”)
                 “FROM THE UNITED STATES”

Types of Infringement

• Existing varieties registered as genuinely new
  ones
  – DUS tests not efficiently performed
• Use of farm saved seed without paying fees
  due to the plant breeder
  – Losses are hugely significant
  – Estimated average global loss in royalties for plant
    breeding ($5/ha) = $472,095,840
     • (UPOV /Enforcement/05/3 Bernard LeBuanec)

Illegal sale of protected varieties

• Level of brown bagging for wheat in some countries
  (UPOV /Enforcement/05/3 Bernard LeBuanec)
• China              55%
• Argentina          45%
• Poland             30%
• Finland            23%
• Czech Republic     20%
• United Kingdom     18%
• Canada               7%
• United States      55%

Examples: Seed Piracy in Thailand
   (http://thaicables.wordpress.com/2011/07/11/06bangkok3237-seed-piracy-in-
                           thailand-a-growing-problem)

• Vegetable breeders in Thailand have seen their plant
  varieties which typically take years and large capital
  investments to breed, copied and sold by small-time
  seed dealers.
• Thailand passed a Plant Variety Protection Act in
  1999 to protect these investments.
• Delays in implementing regulations and registration
  procedures has meant that enforcement is non-
  existent.

Examples: Seed Piracy in Thailand
 (http://thaicables.wordpress.com/2011/07/11/06bangkok3237-seed-piracy-in-
                         thailand-a-growing-problem)

• Seed piracy is having an economic impact on
  Thailand, specifically on farmers, a population
  perhaps least able to afford an economic
  blow.
• Firms have been unwilling to conduct in-depth
  research into new vegetable varieties.
• Improvements in yield have lagged compared
  with the more lucrative field crops.

Examples of Proven Enforcement Solutions

  • Advantages of molecular marker characterization
    of varieties.

Phenotype = “The visible properties of the organism that are
 produced by the interaction of genotype and environment”

Molecular Marker Systems

             Isozyme            SNP

85    90          95    00        05
           RFLP         SSR

North Dakota State Seed Department
       1313 18th St. North, Fargo, ND, 58105, USA

• Variety identification testing is an important
  testing service provided by the Seed Department
  and has been performed since 1994.
• This type of test becomes a valuable tool for PVP
  enforcement.
• Used during regulatory inspection to verify that a
  variety stated on a seed label matches what is in
  the bag.

Identifying Fruit Tree and Ornamental Plant Varieties Using DNA Markers
          Matsuyama T. 2009 Riken research (Volume 4 Issue 7

DNA profiling of disputed Chili Samples
      Kumar et al., 2001 Forensic Science International 116: 63-68

• “A case of marketing of spurious seeds of chili,
  Capsicum annum in the brand name of an elite
  variety was referred to us from an Indian court of
  law”.
• Molecular markers could reliably distinguish all the
  four disputed samples.
• “In developing countries like India, violation of Plant
  Breeder’s Rights is a major concern of law”.
• “This is a step to protect Plant Breeder’s Rights by
  making use of reliable and modern DNA
  technologies”.

UPOV 1991 Essentially Derived Varieties
       catch Plagiaristic changes
• If a new distinct variety retains the essential
  characteristics of the initial variety then legal
  consequence is that the owner of the initial variety
  can determine commercial outcome.
• ISF developing crop specific protocols and criteria.
• Molecular marker data play an important role in
  helping to determine EDV status.
   – Lettuce, Oilseed rape, Ryegrass, Cotton, Tomato, Maize.
• ISF has an arbitration procedure.

PBR Enforcement: Japan
                        The PVP G-Men
       http://www.ncss.go.jp/main_e/functions/PVP_G-menHP(En).htm

• To strengthen plant breeders’ rights.
• The National Center for Seeds and Seedlings 2005
  assigned Plant Variety Protection Advisers (“PVP G-men”)
  to provide a consultation service.
• Main activities of the 'PVP G-men‘:
   – Advice on measures against infringement of PBR.
   – Conduct DUS tests to
     determine variety
     identity.

Breeders’ Group: GESLIVE
       Generalisimo 25 28660 Boadilla Del Monte, Madrid, Spain
                     Email lfuentes@geslive.com

• An economic interest group formed by Spanish
  breeders, established 1996, now 16 members.
• Operates neutrally and independently, without
  profit.
• To manage, protect, and defend the rights to
  protected plant varieties and other intellectual
  property rights in agriculture.

GESLIVE: The Carnation Project
• In 2002, around 60% of the carnation production
  in Spain (Andalusia) came from illegal
  propagation.
• A collaboration agreement was signed by main
  breeding companies and GESLIVE to:
  – Implement an “exploitation license” system signed by all
    growers;
  – Carry out systematic and coordinated inspections;
  – Legally proceed against any infringement duly proved.

GESLIVE: The Carnation Project

• Agreement was subscribed by more than 50% of growers
  and 100% of cooperatives.
• During 2007 and 2008, more than 20 growers were
  criminally sued for illegal propagation of carnations.
• Proceedings were managed by GESLIVE, acting on its own
  name (but in interest of the breeders concerned).
• 8 proceedings finalized with imprisonment sentences (6
  months plus damages).
• Illegal propagation dropped to less than 5% (estimated).

Breeders’ Group: Anti-Infringement Bureau for
 Intellectual Property Rights on Plant Material (AIB)

• Established 2008 by 10 Vegetable Seed Companies
   – Address: 23, Rue du Luxembourg, B-1000 Brussels,
     Belgium
   – Email: info@aib-seeds.comContact person : Casper Van
     KempenTel: +31 6 13 29 93 92vankempen@aib-seeds.com
• Goals
   – Prevent and reduce IPR infringements
   – Increase awareness, publicity and deterrence
   – Establish European network; close collaboration with
     European Seed Association, GESLIVE (Spain) and ORTO
     WIC (Italy)

Farm Saved Seed Survey (18 ISF members)
         (UPOV /Enforcement/05/3 Bernard LeBuanec)

• 45% of the laws of the Contracting Parties of the
  1991 Act do not provide for reasonable limits and
  the safeguarding of the legitimate interest of the
  breeder
   – First, enact adequate PVP law
   – Text of the Convention does not have the necessary
     precision to be used as a law at the national level.
• Does your country implement a royalty collection
  (under the 1991 Act)?
         NO 45% YES 55%

UK BSPB FSS “Fair Play” Royalty Scheme

• BSPB-NFUs Agreement June 2007
• Flat rate per crop, 46 to 60% of certified rate,
• 80% of collection through mobile processors at
  tonnage rate
• 20% direct from farmers at a hectare rate
• 7% collection cost
• Nearly £8m annual income to breeders out of total
  of £28m

Other ways to aid enforcement
• PVP Registration marks
• Border measures enforced by Customs
   – E.g., Japan Customs Law
      • Both imports and exports of goods which are infringing PBR are
        stopped in collaboration with the MAFF
• Expand PBR coverage to processed products
• Support PBR registration and enforcement in foreign
  countries
   – International Training Programs
   – East Asia PVP Forum
      • Promotes capacity building, PVP examination, Harmonization of
        procedures, electronic application and database, website

Conclusions: Effective IPP
• Requires effective PVP laws and in country legal
  systems.
   – UPOV 1991 minimum standard
• Requires effective DUS and certified seed
  procedures.
• Better cooperation between Plant Breeders’ Rights
  Offices and good harmonization in DUS testing to
  avoid direct appropriation of varieties.

Conclusions: Effective IPP

• Burden upon breeder/owner of a variety to enforce.
   – Assist PBR owners in tracking down and bringing to justice
     those who blatantly infringe Plant Breeders Rights.
   – Breeder-enforcement groups (e.g., GESLIVE, AIB)
     successful.
• Prospects for very rapid “dip-stick” test of variety
  identity are close.

Conclusions: Effective IPP

• Closer cooperation between breeders’ organizations
  and the relevant ministry departments to fight
  brown bagging in countries where trade of non-
  certified seed is illegal.
• Special courts in countries or regional entities to
  facilitate the procedures in case of litigation, as it is
  done for instance in Europe for Trade Marks.
• Establishment within UPOV of a formal review of
  proper implementation and effective enforcement of
  the Convention

Conclusions: Effective IPP

• Education on value of plant breeding and need for
  annual investments.
• Establish good relationships with Farmers’ groups to
  help develop effective royalty collection schemes.
• Molecular marker data useful to uniquely identify
  varieties.
• Cooperation and coordination among country PVP
  offices.

Education on the benefits of plant
breeding and need for effective IPP