In past contributions, we have reported on the controversy over patent rights and plant breeding rights in The Netherlands. There has been increasing discussion about patents on plant breeding traits in recent years. Proponents of such patents claim that they foster innovation, knowledge-sharing and continued investments in research and development. Opponents argue that such patents are unnecessary because of the IP protection offered by plant breeders' rights, and that patents impede the work of breeders because they can no longer gain access to biological materials, or can do so only after a delay or at a high cost.
Having reviewed the arguments of all stakeholders, the Dutch government has taken action by amending the Dutch Patent Law to the effect that research for plant breeding is now exempted from infringement (the so-called limited plant breeder's exemption).
However, the vegetable seed industry itself has also taken steps by establishing a licensing platform, which was launched in November 2014. The aim of this International Licensing Platform (ILP) is to provide plant breeders around the world with faster, more efficient, cost-effective and guaranteed access to crucial plant breeding traits covered by patent claims held by companies that are members of the ILP. At present these are Agrisemen, Bayer, Bejo, Enza, Holland-Select, Limagrain Vegetable Seeds, Limgroup, Pop Vriend, Rijk Zwaan, Syngenta and Takii.
The ILP provides a straightforward and easy way for vegetable breeders to obtain a licence for the traits they need, at a fair and reasonable price, so they can bring new products to the market that meet demands from growers and consumers. ILP members have agreed that their patents on vegetable breeding traits should be accessible to fellow members under the conditions of the ILP. Membership is open to all interested parties, patent owners and non-owners alike.
If a member is seeking a licence to use a fellow member's patented invention, the two parties begin bilateral negotiations. If no agreement is reached within three months, the case is put to arbitration by independent experts. The innovative aspect of the system is the method of arbitration. It uses a baseball arbitration model, whereby both parties submit their licence fee proposal to the independent arbitrators, who then choose the most reasonable proposal. This forces both parties to adopt reasonable positions from the outset, because an unreasonable position will be rejected in favour of a more reasonable competing proposal. Once a licence fee is set by the arbitrators, this fee is communicated to all other parties to increase transparency.
It is expected that both the initiatives from the legislator and from the seed-breeding companies will help to bring an end to the controversy between patent rights (holders) and plant breeders' rights (holders).
|Bart van Wezenbeek|
Johan de Wittlaan 7
2517 JR The Hague
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99