IP IN AGRICULTURE PART 1. At van Rooy. 3 April 2017

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2 IP IN AGRICULTURE At van Rooy PART 1 3 April 2017

3 WHAT IS INTELLECTUAL PROPERTY ( IP )? Intellectual property ( IP ) refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright.

4 INTELLECTUAL PROPERTY RIGHTS ( IPR ): ARE THE STATUTORY AND COMMON LAW RIGHTS AVAILABLE FOR THE PROTECTION OF IP. For present purposes these include: Plant breeders rights Patents Registered designs Trade marks Copyright Other exclusive, statutory, and common law rights

5 A FEW PERSPECTIVES THE YEAR 2050: - projected global population = 8.9 billion - average per capita food consumption above 3,100 kcal per day - 40 % increase in global population requires 70 % increase in agricultural productivity, with increased demand for livestock products. The potential to bring new land into agricultural production is limited - presently 1,600 million hectares under cultivation = rise by just 5 percent (70 million hectares) (sub-saharan Africa and Latin America) danger of irreparable damage & collapse - ecological systems.

6 A FEW PERSPECTIVES 90% of required increase in global food production must originate from intensified farming practices and higher yields (in a sustainable way). The above pose a major challenge in which IPR play a central role IS THE ROLE POSITIVE OR NEGATIVE?

7 A FEW PERSPECTIVES IPR PLAY A ROLE IN: - Agro-Chemicals and Animal Health increasing production - GMO & non-gmo Plants with: - increased yield - improved traits: - insect & disease resistance - drought tolerance - nutritional value - enhanced biotic or abiotic stress tolerance and use of marginal soils Better varieties, healthy seeds and propagation material, operational sanitary and phytosanitary systems, effective pest management systems and farming techniques, fertilization and trained farm personnel are critically important for food security.

8 A FEW PERSPECTIVES IPR PLAY A ROLE IN: - GMO and non-gmo microorganisms for various purposes including production and vaccines - Animals with improved traits and characteristics/performance - Technological resources (assisting in information technology, transactions and education) - Agricultural machinery and implements increasing efficiency and production Farmers will increase production if it pays. Seventy percent of the world s poor are farmers or farm workers; rising agricultural prices will help them escape poverty in the medium term. An economically viable agricultural sector where farmers benefit from higher prices and start investing in agricultural services boosts the broader economy. Dr. Alois Leidwein, Director for Research Coordination, Cooperation & Innovation, the Austrian Agency for Health and Food Safety (AGES) 2011

9 Plant Breeders Rights Plant breeders have enjoyed remarkable success in increasing the productivity of key crops. From 1960, crop yields have increased globally by 77 percent and in developing countries by 70 percent. Improved soil management and crop rotation systems, fertilization, and plant protection have helped to exploit the genetic potential of new varieties provided by plant breeding. Leidwein 2011

10 PLANT BREEDERS RIGHTS PLANT BREEDERS RIGHTS ( PBR ) Provides a system whereunder plant breeders' rights relating to N.D.U.S. plant varieties may be granted, registered, administered and licensed. Novel. Distinct. Uniform. Stable.

11 PLANT BREEDERS RIGHTS PBR is a statutory right to exclude others from dealing with plant material (propagating and harvested material) of a particular variety of plant without prior authorisation.

12 PLANT BREEDERS RIGHTS International Union for the Protection of New Varieties of Plants UPOV's mission is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.

13 PBR EXCEPTIONS: (A) RESALE (B) SALES FOR PURPOSES OTHER THAN THE FURTHER PROPAGATION OR MULTIPLICATION THEREOF; (C) DEVELOPMENT OF A DIFFERENT VARIETY; (D) BONA FIDE RESEARCH; (E) PRIVATE OR NON-COMMERCIAL PURPOSES; OR ( F ) FARMERS PRIVILEGE

14 PATENTS: DEFINITION OF A PATENT A PATENT IS: A TERRITORIALLY AND TIME LIMITED EXCLUSIVE (negative) RIGHT; THAT IS GIVEN AS REWARD TO AN INVENTOR (or successor in title) OF AN INDUSTRIALLY USEFUL INVENTION WHICH IS NEW; AND INVENTIVE IN EXCHANGE FOR A FULL (sufficient) DISCLOSURE OF THE INVENTION TO THE PUBLIC IN A PATENT SPECIFICATION TO PROMOTE THE DEVELOPMENT OF TECHNOLOGY

15 Patents EXCLUDED FROM PATENTABLE INVENTIONS: - Discovery; - Scientific theory; - Mathematical method; - Literary, dramatic, musical or artistic work or any other aesthetic creation; - Scheme, rule or method for performing a mental act, playing a game or doing business; - Program for a computer; and - The presentation of information - Discoveries (such as a non-isolated gene or microorganism in its natural environment without asserted utility); - An invention the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour (biopharmacy?): Researchers from the John Innes Centre in Norwich, Great Britain have obtained genetically modified tomatoes rich in anthocyanins, a category of antioxidants belonging to the class of flavonoids. These tomatoes, added to the diet of cancer-prone mice, showed a significant protective effect by extending the mice lifespan.

16 Patents THE FOLLOWING ARE ALSO EXCLUDED FROM PATENTABLE INVENTIONS: Any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process.

17 PATENT RIGHTS RISK: that patent owner will prevent or inhibit exploitation of patented technology by refusing to grant licence or charging exorbitant royalties to detriment of resource poor farmers. OPPORTUNITY: Resource rich companies are enticed to conduct research contributing to food security because of prospect of remuneration and profit.

18 Patents PATENTING LIFE? THE EUROPEAN DIRECTIVE FOR THE LEGAL PROTECTION OF BIOTECHNOLOGICAL INVENTIONS (DIRECTIVE 98/44/EC): Entered into force on 30 July The EU member states implemented the Directive into their national law by 30 July Application by Kingdom of the Netherlands and others v European Parliament, and others for the annulment of Directive 98/44/EC was rejected on 9 October 2001 (1)

19 PATENTS IN AGRICULTURAL SECTOR PATENTING LIFE AND GMO

20 PATENTS IN AGRICULTURAL SECTOR PATENTING LIFE AND GMO

21 Patents CASE STUDY Bowman v. Monsanto Co., 569 U.S. (2013) On May 13, 2013, Justice Elena Kagan delivered the Court's unanimous opinion, which affirmed the judgment of the Federal Circuit. [5][9][20] Justice Kagan stated that while an authorized sale of a patented item terminates all patent rights to that item, that exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission. [5][9] Justice Kagan stated that when a farmer plants a harvested and saved seed, thereby growing a further soybean crop, that action constitutes an unauthorized "making" of the patented product, in violation of section 271(a) of the patent code. [5][21] Justice Kagan concluded that Bowman could resell the patented seeds he obtained from the elevator, or use them as feed, but that he could not produce additional seeds (that is, crops). [3]:37

22 Patents CASE STUDY GM SOY BEAN Monsanto Technology LLC v Cefetra Article 9 of the Biotech Directive states that the protection conferred by a patent on a product containing or consisting of genetic information shall extend to all material, save as provided in Article 5(1), in which the product is incorporated and in which the genetic information is contained and performs its function.

23 PATENT CASE LAW EP was filed in 2000 by the Israeli Ministry of Agriculture for a: method for breeding tomatoes having reduced water content and product of the method Reduced water content in tomatoes would be more suitable for producing ketchup and other foodstuffs. This patent was granted in 2003 and was opposed on the basis that it involved a biological process. Merely including a technical step to enable or assist the performance of sexually crossing genomes of plants or of subsequently selecting plants does not override this exclusion from patentability.

24 Patents EP In 1999, Plant Bioscience Ltd, filed a patent for a method of selectively increasing the anti-carcinogenic glucosinolates of Brassica (broccoli) with the European Patent Office. The patent was granted in 2002 (EP ) but was opposed, on the basis that the patent was for a biological process (finding and marking a particular gene and breeding plants showing the marked gene) which is excluded from patentability. Processes for producing plants by inserting or modifying a trait in the genome by using genetic engineering do not rely on sexual crossing of whole genomes and may therefore be patentable. However, in such a case sexual crossing and selection steps should not be in the claims, since adding further technical processing steps before or after the steps of sexual crossing and selection does not render such processes patentable either.

25 Patents

26 PATENT & PBR ENFORCEMENT IN AGRICULTURAL SECTOR

27 PATENT ENFORCEMENT IN AGRICULTURAL SECTOR

28 PATENT ENFORCEMENT IN AGRICULTURAL SECTOR

29 TRADE MARK ENFORCEMENT IN AGRICULTURAL SECTOR

30 COPYRIGHT ENFORCEMENT IN AGRICULTURAL SECTOR

31 TRADE MARK ENFORCEMENT IN AGRICULTURAL SECTOR

32 CONCLUDING REMARKS - IPR PLAY PIVOTAL ROLE IN AGRICULTURE AND FOOD SECURITY - STRONG IPR REGIME REQUIRED TO ENCOURAGE DEVELOPMENT AND IMPROVEMENT OF PLANTS, ANIMALS AND TECHNOLOGY, SUPPORTING INCREASE IN PRODUCTION, PRODUCTIVITY, COMMUNICATION AND EDUCATION - THE BENEFIT OF USING TECHNOLOGY PROTECTED BY IPR SHOULD OUTWEIGH THE COSTS - IPR LITIGATION AND NEW IP DEVELOPMENTS PROVIDE WEALTH OF MATERIAL FOR AGRICULTURAL WRITERS

33 Thank you