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Leo Melchers Masterclass Octrooigilde Nov 11, 2015 Balancing access & protection in Agriculture: Shaping a new IP use Octrooieren van innovaties in planten

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  • Leo Melchers

    Masterclass Octrooigilde Nov 11, 2015

    Balancing access & protection in

    Agriculture: Shaping a new IP use

    Octrooieren van innovaties in planten

  • 2

    Helping small and large farms meet the challenges of global food security

    Our ambition is to bring greater food security in an

    environmentally sustainable way

    to an increasingly populous world

    by creating a worldwide step-change

    in farm productivity

    450M smallholder

    farms ~2.0 Ha

    8M large-scale

    farms >100 Ha

    Classification: PUBLIC

  • 3

    Demand for food is driven by population growth and rising calorie consumption

    World population > 80% of growth in emerging markets

    1950 2.5 billion

    2011 7 billion

    2050 9 billion Emerging


    Source: FAO, Syngenta analysis






    1970 1990 2010 2030 2050

    World demand for grains* bn tonnes


    * Cereals, rice and corn

    Food Feed

    Classification: PUBLIC

  • 4

    Environmental stresses are increasing

    World stress map Climate change is already reducing water and arable land

    Source: UNEP, Cline, Syngenta

    Climate change impact




    1950 2030

    1 hectare

    fed 2 people

    1 hectare needs

    to feed 5 people

    requiring better use of existing farmland


    uses 70% of the

    worlds fresh water


    Classification: PUBLIC

    Grow more from less

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    1990s 2000s 2010s 2020s

    Marker Discovery Marker Assisted

    Breeding Molecular

    Breeding Conventional Breeding



















    Breeding in the 21st century: Technology convergence Accelerated link between germplasm and traits

    Environment & Weather data

    Trait associations



    Crop Models



    Gene networks

    Increased scientific understanding & increased opportunity of patentable inventions

    Classification: PUBLIC

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    Breeders challenge: Bring new genetic diversity into a plant

    Breeding targets

    - Yield improvement

    - Crop quality

    - Insect resistance

    - Fungal resistance

    - Drought tolerance

    - Stress tolerance

    - Plant architecture

    - Post harvest storage

    - Taste

    - Resistance to lodging

    - Resource use efficiency

    - and more !!

    Classification: PUBLIC

  • 7

    Balancing IP protection & access to genetics

    Unprecedented need for innovation

    Increasing technification and investment

    Increasing complexity of regulatory, IP and legal landscapes

    Classification: PUBLIC

    Incentive for innovation

    ($ return / exclusivity)

    Incentive for

    knowledge sharing

    Access to

    genetic resources

    Manageable transaction

    / legal / regulatory costs

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    X IR



    Variety C


    Plant Breeders Right vs. Patents we need both systems

    Protects: Plant variety

    Variety is defined by all phenotypical characteristics.

    Breeders exemption:

    - Competitors can use commercialized variety for breeding

    - New developed variety can be freely commercialized

    Efficient protection for a plant variety

    No efficient protection for IR Trait


    Protects: IR Trait (Invention)

    All plants with the IR Trait are protected.

    Research & breeders exemption (DE, FR, CH, NL, EU):

    - Competitor can use variety A for breeding

    - Commercial use of variety C requires a license

    Efficient protection of IR Trait

    No efficient protection for variety A & B genetics

    Plant Breeders Right system Patent system

    Classification: PUBLIC IR = Insect Resistance Trait

    Protects the part but not the whole

    Plant Breeders Right


    Protects the whole but not the part




    Variety C


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    No industry alignment on the value of patents for


    Patents reduce access to biodiversity & stimulate

    industry consolidation

    Native traits are present in nature, thus are not


    License negotiations are complex & time consuming

    Multinationals will decide what food you will eat

    The IP controversy

    Classification: PUBLIC

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    Stronger IP vs. Broader access


    Incentive for innovation and Broad access

    Classification: PUBLIC

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    IP as a Tool A matter of use

    Classification: PUBLIC

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    TraitAbility Syngenta e-Licensing platform

    TraitAbility provides quick & easy access to our patented native traits and

    enabling technologies improve plant breeding and increase innovation

    in agriculture

    Licensing plant innovations in new ways

    E-licensing provides easy access to technology and genetic diversity

    Breeding technologies are just a click away

    TraitAbility is quick and easy to use, focus your efforts on breeding,

    not negotiations

    Clear access under standard terms

    Simple, clear access to the traits and technologies you need,

    licensing and financial terms are transparent and standard for all

    users (FRAND terms)

    Classification: PUBLIC

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    International Licensing Platform (ILP)


    - Global access & use of plant traits for vegetables breeding.

    - Limited non-regulated traits (excl. sweetcorn) & Free for research and breeding

    - FRAND remuneration for commercial use (independent expert committee)

    - Pull-in mechanism for licensees patents

    Open Clearing House

    - Global - Everyone can join - Patent owners and parties without patents

    - Pro-competitive effects:

    Low transactional costs, Incentives for innovations, Faster innovation cycles.

    Free access but not access for free


    11 Members

    Classification: PUBLIC

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    Benefits ILP Vegetable


    Fair competition Breeders with/without patents can become an ILP member

    ILP members have certainty to access patented traits of other


    ILP provides free access but not access for free.

    ILP members can apply a breeders exemption in the USA.

    Fair Reward The breeder / innovator gets a fair reward for their investments &


    ILP facilitates FRAND license terms.

    Reduce transactional

    costs and time

    Standard license agreements are available & MFN terms are applied

    Create transparency Information on which commercial varieties comprise patented traits

    Industry alignment The solution re-aligns the seed industry, which is critical in view of the

    CBD challenges

    Classification: PUBLIC

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    What is the breeders rights debate about ?

    Three EU members (NL, FR, DE) limited BE

    Limited BE allows plant breeders to use biological materials, covered by patents,

    for breeding new varieties without the consent of the patent holder.

    Upon commercialization a license agreement needs to be in place.

    A number of plant breeders would like to go further, install a Full BE, and

    commercialize the resulting new varieties without paying royalties

    The Dutch Ministry of Economic Affairs aims to include a Full BE in Directive

    98/44/EC, or eliminate the patent protection of plant-related inventions

    - SEO survey: Analysis of effects of the introduction of a Full BE on the other biotech sectors

    - Analysis of plant patents

    - New legal analysis of TRIPS vs Breeders exemption in 98/44

    - .. All 3 reports ready by Dec. 2015 ?

    BE = Breeders Exemption Classification: PUBLIC

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    Risks of opening Directive 98/44/EC

    Directive 98/44/EC;

    - defines a stable and predictable framework for all biotechnological inventions,

    - is essential to foster innovation and guarantee technology transfer & sharing

    of scientific findings in the EU

    Risks of revising Directive 98/44/EC:

    - Reduction of investments, competitive disadvantage for EU scientists

    - Reduced scope to patent plant-related inventions will incentive to keep

    innovations as trade secrets undermines the social contract inherent to the

    patent system

    - Trade secrets block access to new scientific develops harmful to EU SMEs

    - Ending patent protection of plant-related inventions violates EU international

    obligations (i.e. TRIPS)

    Classification: PUBLIC

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    The Problem

    Classification: Public

    EU plant varieties covered by patents

    Impact: Limited - primarily legal uncertainty


    Access to genetic diversity

    Access to patented plant innovations

    Incentive for innovation

    A problem only arise if patented plant

    material is on the market.

    Less than 1000 EU varieties are covered

    by only 24 patents (70% of the varieties are covered by 3

    patents owned by SMEs or universities

    >90% of license income goes to SMEs

    and universities.

    Only one patent litigation (patent found invalid)

    EU plant varieties covered by patents




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    Existing solutions and proposals

    1. The Limited BE: effective for all EU patents (Unitary Patent) - ratified in 2016

    2. Patent Quality: EPO initiative - Raising the bar on patent quality

    3. Transparency: Seed Industry developed PINTO data base (patent info on plant varieties)

    4. Access: Seeds Industry provide free access but not access for free;

    o Bilateral licensing

    o Company E-licensing platforms quick & easy access to patented Native Traits

    o Patent clearing-house: f.e. International Licensing Platform Vegetable (ILP)

    These solutions immediately addresses the needs of plant breeders

    without the need for changing Directive 98/44/EC and

    risk jeopardizing investments and innovations/growth in Europe

    Existing tools offer the desired outcomes and balances rights of patent owners

    and plant breeders, as well stimulates innovations in plant breeding

    Classification: PUBLIC

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    Scenario B

    Access & benefit sharing

    Scenario A

    Legal ban of plant patents


    Scenario B

    Access & benefit sharing

    Cooperative solutions supported by legal measures

    Increase transparency

    PINTO database as role model

    Legal duty to disclose patents covering varieties

    Limited breeders exemption Unitary Patent / UPC

    Facilitate licensing

    International Licensing Platform as role model

    (free access but not access for free)

    Legal clarification of compulsory license

    Pro: Fast, global, adaptable

    Con: Requires mindset change

    Less black & white debate - more dialog

    Scenario A

    Legal ban of plant patents

    Clear & simple?

    Simplistic: Difficult to limit to native traits

    Removes blocker for innovations?

    Reduced incentive for trait innovation

    Trade secrets as alternative

    Damage to other life-science industries

    Legal certainty?

    Lengthy: >10yrs to change Dir.98/44 & EPC

    No global solution

    Pro-SME breeder?

    SMEs have large patent estate and income

    Industries w/o patents are not more diverse (e.g., software)

    Classification: PUBLIC

  • 20 Classification: PUBLIC

  • 21 Classification: PUBLIC