In Europe new plant varieties can be protected by the sui generis intellectual property system of plant breeder’s rights (PBR) based on the UPOV Convention. Tailored to the specificities and needs of plant breeding such protection guarantees the continuous flow of improved plant varieties by safeguarding access to genetic variability through the so-called breeder’s exemption. The breeder’s exemption is a key cornerstone of the UPOV PBR system stipulated in Article 15(1)(iii) of the UPOV 1991 Convention. This compulsory exemption provides that all plant varieties protected by PBR can be used for further breeding and the resulting plant variety can be commercialized without any obligation towards the PBR holder. This feature can be regarded as an “open source” system and has always been relied upon by breeders for further improvement on each other’s plant varieties and boosted innovation in plant breeding.
Besides PBR, also patents play an increasing and important role in the European seed and plant breeding sector. Under European patent law, plant varieties as such as well as essentially biological processes for the production of plants are excluded from patentability. Nevertheless, in practice – as a result of the specific nature of plant-related patents – plant varieties may fall under the scope of certain patents. Under patent law however there is no general breeder’s exemption. Therefore, the use for further breeding of a plant variety covered by the scope of a patent and the commercialization of the newly bred plant variety is always subject to conditions. (NB: The use for further breeding and development of biological material covered by the scope of a patent is allowed under the German, Dutch, French and Swiss patent acts via a specific, limited breeder’s exemption.)
In order to be able to define their “freedom to operate” when starting their breeding programs breeders would need to know whether the plant variety they intend to use falls under the scope of a patent application or a granted patent. Although there are many publicly accessible patent databases this specific information providing the link between a plant variety and patent(s) is currently not available elsewhere. In order to improve transparency of such information, Euroseeds has created PINTO.
Currently the scope of PINTO covers plant varieties commercialized in the European Economic Area (EU and EFTA countries) but may also include plant varieties that are registered in the EU and/or EFTA countries while not being commercialized in those countries. As to the material scope, PINTO includes not only plant varieties covered by granted patents but also those falling under published patent applications. As to the coverage however, the patent information regarding the plant varieties that are included in PINTO is provided by the owners of the plant varieties on a voluntary basis. Therefore, not all plant varieties that may be covered by patents in the mentioned geographical area are included in PINTO.
