IN HIS OPENING ADDRESS at this year’s World Seed Congress, International Seed Federation President Orlando de Ponti made a strong statement about the importance of breeders continuing to have access to genetic resources – “including access to commercial varieties, allowing elite to elite crosses.” He spoke passionately about the importance of the breeders’ exemption as outlined in UPOV. Some members may believe the breeders’ exemption is out of date, but de Ponti disagreed strongly, suggesting patents should not be used to cover plant breeding.

Anthony Keeling from Elsoms, a British seed company, believes that de Ponti spoke a great deal of truth in his speech: “I thought Orlando’s speech was well balanced and was in line with the majority of ISF members; if not the majority of the biggest members.”

The President of ISF also spoke about how, “Genetic improvement is responsible for 1% a year of global yield improvement.” He expressed optimism that the diverse and robust tool kit of plant breeding will continue to make 1% possible.

For 30 years now, the industry has been discussing how to reward breeders for that 1% gain. If you take an existing variety and insert a trait, what is owed to those who created that original variety versus the value of the additional trait? The answer is not easy.

In 1991, UPOV (an international treaty on Plant Breeders’ Rights) provided a means to protect the original breeder under a provision called “Essentially Derived Varieties”. Twenty years later, the ISF’s breeders committee is still trying to outline a good way to implement that provision.

Discussions have centred on the “distance” between varieties, trying to define how far a variety needs to be from another, so it is not considered close enough to the original variety to be essentially derived. This question of how far is still too close is an important one; mostly because when a variety is essentially derived, a royalty is owed to the original breeder of the initial variety. Plus all breeding is based on combining existing varieties to make a new one so there will always be ways in which a variety is derived from another.

The premise was that a big company might come along and insert a trait, say herbicide tolerance, into another variety and would need to reward the people who created it. Now some of those small companies who were looking for reward are also worried about consequences.

For instance, most large trait companies now own extensive breeding facilities with robust lab resources. Proposals to look at genetic distance at the molecular level are starting to cause concern among some.

The ISF position suggests: “it is to the owner of the initial variety (i.v.) to prove essential derivation and then claim dependency. However if the owner of the variety can give reasonable evidence of essential derivation (prima facie proof), ISF is in favour of the reversal of the burden of proof. For prima facie proof, the following elements should be sufficient:

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If the owner of the i.v. has fulfilled one of the above requirements, then the second breeder would have to prove that there is no predominant derivation, or that he had not used the i.v., or a variety essentially derived from that i.v..”

At the 2009 meeting, ISF was proposing to take this a substantial step further – reversing the burden of proof about essential derivation if a competitor had used genomic information about an initial variety. This was not accepted by the ISF General Assembly but was put back to the Intellectual Property committee for further consideration.

“We don’t think its right for use of genomic info to reverse the onus of proof. It is too broad and will put too much demand on small companies. Their use of genomic information may have been minimal. A plaintiff breeder may have a huge laboratory and legal resources,” explains Keeling.

As I mentioned in the last issue, these are “wedge” issues driving cracks into regional divides within the seed industry and divides between large versus smaller seed companies. In many ways it seems fitting that these debates are occurring on matters so close to the endeavor of plant breeding. The seed sector still faces challenges regarding production, distribution and retailing but at its heart it is still about creating varieties. And for that reason, it has argued these issues for decades and continues to argue them with great vehemence.

To read more on this topic visit the ISF’s web site: www.seedworld.comorg/en-us/international_seed/ on_intellectual_property.html