Max Planck Institute for Innovation and Competition, Munich, Germany


The greatest service that can be rendered to any country is to add a useful plant to its culture (Thomas Jefferson)

These words of Thomas Jefferson beautifully embrace the significance of plant breeding for society. Plant breeding is the science and the art of ameliorating the genetics of plants, which has accompanied our society since its dawn. It started as a family or a village-based activity in order to satisfy dietary needs; nowadays, breeding new varieties of plants has developed into a well-established industry that provides food with enhanced nutritional properties as well as raw materials for sustainable industrial applications.1 Indeed, statistical data point to a growth of international seed trade and estimate increasing values for domestic seed markets in recent years.2 This growth of market for seeds has been paralleled by a global reduction of undernourished people.3 While several factors involved in food security governance might have played a role in the fall of undernourishment levels, food availability remains key for providing an adequate food supply.4 An adequate food supply can be ensured only through breeding new varieties of plants. Increasing plant variety production brings about social benefits to the extent that it offers a wider choice for fulfilling dietary requirements and lowers food prices. Plant breeding’s contribution to a more environmentally friendly industry is equally important for society.5 Hence the need to create more plant varieties for the common good.

One factor that has led to a boost in plant variety production in the last decades is the employment of biotechnological methods in breeding processes.6 These methods are often protected through intellectual property rights (IPRs), which may extend on plant varieties or parts thereof. In most countries, intellectual property rights in the form of patents or plant breeder’s rights protect plant varieties as well.7 IPRs recognize human ingenuity on the technical fruits of human mind and at the same time encourage innovation by granting to the right holder the faculty to exclude third parties from certain actions on the objection of protection. Neoclassical economic theory views exclusionary rights as necessary to spur innovation,8 but excluding others from using protected plant varieties or parts thereof may impede plant variety creation. The reason lies in the cumulative nature of plant breeding activities. Breeding of new varieties of plants requires access to existing varieties that can be further improved during the breeding process. Preventing breeders from accessing plant varieties may, thus, come forth with the undesirable effect of hampering plant variety production. This effect may especially occur when plant varieties or parts thereof are protected through patent rights. This is because patent rights do not contain exemptions and block third parties from accessing the protected variety. Four European countries, France, Germany, the Netherlands, and Switzerland have sought to avoid such effect and stimulate plant variety production by exempting patent holders’ rights in order to allow breeders to create plant varieties with patented elements.9 10 Dutch plant breeders have proposed to further restrict patentees’ rights by allowing commercialization of plant varieties containing patented biological material. Whether these exceptions to patent rights achieve their purpose and comply with requirements of international agreements on intellectual property is a relevant question for policymakers. This question is especially important for those World Trade Organization (WTO) countries that are required to implement the provisions of the Trade-Related Intellectual Property Rights Agreement (TRIPS Agreement)11 into their national legal systems. The TRIPS Agreement provides for minimum standards of intellectual protection and in particular, its art. 27.1 prescribes that patent rights should be available in all areas of biotechnology. At the same time, art. 30 of the said Agreement authorizes countries to adopt exceptions to patent rights provided that specific requirements are met. Exceptions, thus, should be limited, not unreasonably conflict with a normal exploitation of the patent and not unreasonably prejudice the interests of the patent owner, taking account of the legitimate interests of third parties. The vagueness of this provision does not allow drawing immediate conclusion on the type of exception that countries may adopt under the TRIPS Agreement. This is especially the case of those European countries that have adopted exceptions to patent rights for breeding purposes. In order to clarify this legal uncertainty, this book will assess the compliance of exceptions to patent rights with breeding purposes in light of legal and economic considerations. It should be noted since the beginning that neither law or economics, nor the economic analyses of law offer an exhaustive response to the multidimensional aspects involved in intellectual protection of plant varieties. Breeding of new varieties of plants for food security purposes forms part of a multidisciplinary framework of governance. Nevertheless, law and economics can represent a tool for interpreting and evaluating the effects of legal provisions in the field of plant breeding. To offer a comprehensive understanding of this issue, the book is structured as follows.

Chapter 2 will set the background by briefly describing the problem that gave rise to this study. It will further explain the practical and academic relevance of the matter at hand and indentify the relevant legal provisions that will be object of this study.

Chapter 3 will depict a picture of the plant breeding industry and its relevance for the society. It will first purport the beneficial role of plant varieties in various socio-economic sectors, and then explain the development of the breeding industry in terms of business structure and market concentration. This will provide the reader with a preliminary understanding of the breeding industry.