UofW Law Speaker Series: IP Rights and Access Regulations for Germplasm

Intellectual property rights regimes and access regulations for germplasm: benefit or loss to plant breeders?

Currently, the free access to germplasm for breeding purposes is becoming more and more limited by two other developments: growing scope of intellectual property rights on the one hand and the evolution concerning access and benefit sharing in the convention on biological diversity (CBD) and the international treaty for plant genetic resources of food and agriculture (IT-PGRFA) on the other hand. Patents are generally more restrictive regarding research and breeding than plant breeder’s rights in which the critical notion of the breeder’s exemption allows freedom to operate, though the idea of essential derivation limits this breeder’s exemption. The plants containing a patented feature do fall under its patent protection. In the USA, conventional varieties can also be patented, which is not possible in most other countries in the world. This patent system allows claims on the progenies resulting from crossing patented plants with other plants. The CBD and IT-PGRFA subject the access to germplasm to specific rules for benefit sharing, whereby the terms for access under the CBD are specific. Still, their implementation differs in the member countries. On top of these developments, private companies use increasingly Material Transfer Agreements and restrictions printed on seed bags to limit access to commercial varieties for breeding purposes. The question arises whether this limitations will benefit or harm the breeding of new varieties in the long run and how the breeders in the field will cope with these developments.

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