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GMO seed farm may be an infringement

On October 30, 2007, a new law on counterfeiting 2007-1544 was published in the Official Journal. It strengthens the capacity of holders of intellectual property rights in their fight against counterfeiting: a "matter of traffickers and mafias," according to the rapporteur of the Senate Judiciary Committee.

The senator was certainly not the farmers who "make their own seed on the farm" when he said that, but it would nevertheless be wrong to think that this ancient practice and frequent escapes to the new legislation with certainty. On the contrary, a seed produced on the farm may be in law regarded as an infringement when the seed is from a farmer plant variety protected by plant breeders' rights (PBRs). PVP gives its holder a temporary exclusivity on a variety, the "protected variety". This exclusivity extends to all production seed, with some exceptions.

Certainly many farmers breed of semen on the farm from the crop of a protected variety. In practice, they breed during one or more years without requesting permission from the owner of PVP. However, the reproduction of a protected variety is legal only under certain conditions it is important to consider in distinguishing Community law, where such reproduction is possible under certain conditions, French law, where in the state, although this practice is tolerated is contrary to law as was confirmed by the Court of Appeal of Nancy in 1988.

The PVP Community, established in 1994, provides a limit to the exclusive rights of the holder. There is an exception for farmers who want to reproduce a protected variety on their farms for their own use. This exception applies only to a list of 20 species including wheat and potato, but this list does not include species such as corn and soybeans. Under this exception, the farmers can reproduce the protected variety without permission owner, but only if they fulfill certain obligations, including payment of "reasonable royalty". If a farmer does not pay the contractor, the conditions of the exception are not met. Then it is counterfeit.

same time, there is the French system of PVP created in 1970. The current wording of Article L. 623-4 of the Intellectual Property Code provides all the exclusive production of the seed - without exception - the holder of the PVP French. A farmer may So French reproduce a protected variety without the express permission of the owner. Without this authorization, it is counterfeit. It should be noted however that there is a single tolerance for wheat because a "mandatory voluntary contributions" was introduced on all crops of wheat. It is a hybrid form of levy that is paid back in part to breeders. The other part is used to fund research in France, although this deduction applies equally to French and European varieties.

To oversimplify the situation today, the seed from a protected variety and produced by a farmer is an infringement if the farmer does not pay a breeder of a variety of community or if reproduced without a French variety express authorization, except wheat. These fakes obviously fall within the ambit of the law on infringement that has reinforced the rights of owners and infringement actions.

Curiously, at the end of the hearing before the Senate on counterfeiting, the idea floated a seed farm could not be a fake. Senator Bernard Sellier had introduced an amendment to exclude the seed farm of the scope of the law. Following the remarks of Minister Novelli, M. Sellier withdrew the amendment, concluding: "You say without ambiguity: the use of farm-saved seed will not be a waiver, nor tolerance, but a right of farmers." It was explained that the forthcoming law on plant varieties would resolve the issue. Farmers could then make the seed farm. But they forgot to mention that in this bill on the plant variety right reproduce is subject to conditions such as remuneration. There are only a limited list of species. Moreover, it is clearly stated in the bill:

" Art. L. 623-24-7 . - The failure by farmers to the obligations imposed by this section to qualify for exemption [...] gives the use of that derogation the character of a counterfeit ".

Farmers who think they have a historical right to replant free and freely their seed are wrong when it comes to seeds of protected varieties. On the one hand, breeders are investing heavily and carry a long process of selection. It is normal that they can benefit from the royalties due to them and prosecute counterfeiters. On the other, it is wrong to suggest that there is a general right to reproduce and induce farmers in error. Farmers have only an exception for certain species at certain conditions and this will soon be the same situation for the French PVP (see project bill before the National Assembly should again be placed on the agenda). If a farmer reproduced of protected varieties, it must accept the obligation to compensate the breeder for his work. Research depends.

During the years 1970 and 1980, was strongly encouraged farmers to abandon their local varieties, less productive but free of any intellectual property right. They had to adopt the modern varieties and marketed. But this choice has been accompanied by the abandonment of a freedom, something that has never been explained so: by abandoning their local varieties, farmers gave up their freedom to reproduce without constraint of the seed. That is why today there is renewed interest in local varieties and also varieties in the public domain, both freely reproducible and can not be any infringement action.

© Shabnam Laure ANVAR (this article can be reproduced with explicit permission from the author, write droitetsemence (@) gmail (dot) com)

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The right to farm the seed: the difference between the rights of plant varieties and patent law

's letter of October 2007 GNIS deals with farm-saved seed and the law. The letter is interesting in that it clearly establishes what can be done or not. It omits a significant detail.

In the last table, it is stated that the farm-saved seed is prohibited for a patented variety (if one pays attention to detail, we understood that it refers to the law of the USA, Australia and Japan). Now this chart does not specify that a right to reproduce farm seed containing a patented event in French law French law (Article L. 613-5-1 Code property intellellectuelle) and the EU Directive 98/44 (Art. 11.1).

" Art. L. 613-5-1 Code of intellectual property.

Notwithstanding the provisions of Articles L. 613-2-2 and L. 613-2-3, sale or other act of commercialization of plant breeding plant by the patentee or with his consent, to a farmer for farming purposes for it implies permission using the product of his harvest for propagation or multiplication by him on his own farm.

This leads to a paradoxical situation: a farmer can reproduce a patented seed with events, but not a seed French variety protected by plant breeders' rights. (Regarding the patent, the right to reproduce may be exercised only if the farmer meets the requirements of Regulation 2100/94).

French Patent law is somewhere now more favorable to farmers ...

NB: EU law provides an exemption for farmers and plant breeders' rights for patented items.

French law provides that only the plant variety right.

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The Farm saved seed exception: the plant breeders différence entre 'rights and patent law

GNIS The October 2007 letter farm saved seed about IS & the law. It Is Interesting as it clearly "Explains What Can Be Done. Except, one important Fact Is omitted.

In the last chart, it is stated that farm saved seed if prohibited for any patented variety (if one looks closely, one understands that this fact only concerns the USA , Australia and Japan ). The chart does not specify that French (article L. 613-5-1 Code de propriété intellellectuelle) and (EC law EC Directive 98/44 (art. 11.1)) both allow farmers to produce farm saved seed containing GM patented elements.

" Art. L. 613-5-1 Code de propriété intellectuelle.

Par dérogation the provisions of Articles L. 613-2-2 and L. 613-2-3, sale or other act of commercialization of plant breeding plant by the patentee or with his consent, to a farmer for farming purposes for it implies approval of use the product of his harvest for propagation or multiplication by him on his own farm.

The Result is Quite paradoxical : a farmer Cdn Reproduce has patented GM seed With A element, can not aim Reproduce seed of a French Variety protected by a plant breeder's right. (With Regards To The patent, a farmer Reproduce The Seed Can Only if he gratified The obligations set out in EC Regulation 2100/94).

French patent law is therefore more open to farm saved seed than French plant breeders’ rights...

NB: EC law allows for farm saved seed (within certain limits) in patent law and plant breeders’ rights law

French law only provides the exception in patent law.

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About Law of March 2006 Plant Variety

Un détail significatif : La prolongation de la durée de protection du certificat de l’obtention végétale française does not depend on the ratification of the 1991 Convention

A first draft ratification of UPOV 1991 was filed in 1996 (1). But only ten years later and rushed the legislature passed the law to ratify UPOV 1991 March 2, 2006 (2). This haste was justified by the imminent need to extend the term of protection granted to breeders from 20 to 25 years. Curiously, this extension had already been made the previous day by a law of a st March 2006, which had also been adopted in "emergency" (3). The main reason advanced by the parliamentary reports (4) was that some VOCs were coming to an end and plant varieties that would "fall into the public domain." It was necessary, argued they, "save [the] Charlotte [the] Mona Lisa" (5) (see two varieties of potatoes). That is the fear of public domain that has driven the early adoption of these laws (6).

Theoretically, any protection for intellectual property right is limited in time because the grant exclusivity to a breeder or inventor is an exception freedom to undertake any other person, but also, and perhaps most importantly, it confers an exclusive right to encourage the disclosure of a text, an invention or a plant variety to enable better dissemination knowledge. Thus, Article 8 of the 1978 Convention and Article 19.1 of the Convention of 1991 indicate that the PBR is granted for a period of "limited" or "defined".

Although the two conventions of 1978 and 1991 provided for a term of protection, moreover different: the first fixed to 15 years, except for trees and vines, which should be protected at least 18 years (7); on the second, it extended up to two times respectively 20 and 25 years (8). However, the protection periods and corresponded to a minimum set that nothing prevented the signatory states to overcome the above conventions setting no time limit. France could, therefore, freely, either under the 1978 Convention or under that of the 1991 Convention, extending the duration of exclusive rights granted to breeders in France. It is therefore difficult to argue, as has been done before the Assembly national, that "[...] the lack of timely ratification of the Revision Act of 1991", varieties fall into the public domain because it was possible to extend the term of protection by a French law, under the 1978 Convention (9). In fact, the law of 1 st March 2006 amending Article L. 623-13 of the ICC was adopted before the ratification and implementation was immediate. Its application is therefore not subject to the condition of ratification of the Convention of 1991.

But these arguments of "emergency" based on 'fear' public domain, enabled the rapid adoption of the ratification bill, avoiding a substantive discussion about real change implied ratification of the new treaty, which is unfortunate. The decision to extend the term of plant variety certificate was French and a matter of law only.

(1) Bill was tabled in the Senate December 11, 1996 and reviewed by its Committee on Foreign Affairs and Defence 26 June 1997.

(2) Law No. 2006-245 of March 2, 2006 authorizing the ratification of the revision of the International Convention for the Protection of New Varieties Plants, Official Gazette No 53 of March 3, 2006.

3) The report of JP Nicolas before the Senate as the second part talks of "emergency": "The urgency of a longer duration of certificates of plant variety." J.-P. Nicolas, Report on behalf of the Committee on Economic Affairs, Environment and Territory of the National Assembly on the bill, passed by the Senate, concerning plant varieties (No. 2869 ) www.assemblee-nationale.fr, February 23, 2006. The law of 1 st ^March amended Article L. 623-13 of the Code of Property Intellectual (CPI) and thus the duration of protection conferred by the French VOCs. Act No. 2006-236 of 1 March 2006 concerning plant varieties, Official Gazette No 52 of March 2, 2006.

(4) For the Senate: J. Puech, Supplementary Report drawn up on behalf of the Committee on Foreign Affairs, Defence and Armed Forces of the Senate bill authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants, www.senate . fr, December 7, 2005. For the National Assembly: J. Glavany Report on behalf of the Foreign Affairs Committee of the Assembly National Bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803), No. 2849, February 13, 2006, 8 p.

(5) Glavany Report on behalf of the Foreign Affairs Committee of the National Assembly on the bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803) .

(6) These are the 'falls' who "reasoned the French authorities to revive the ratification process Revision Act of 1991 and to undertake a parallel modification of the code of intellectual property and the Rural Code "Ibid.

(7) Section 8 of the UPOV Convention of 1978 imposes a term of protection as follows: "The right conferred on the breeder shall be granted for a limited time. It can not be less than fifteen years from the date of issue of the protection. For vines, forest trees, fruit trees and ornamental trees, including, in each case, their rootstocks, the duration of protection can not be less than eighteen years from that date. "

(8) Article 19.2 of the UPOV Convention 1991: "this may not be less than 20 years from the date of grant of PBR. For trees and vines, but may not be less than 25 years after that date. .

(9) Glavany Report on behalf of the Foreign Affairs Committee of the National Assembly on the bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803) .

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French Article on Biodiversity Indicators (biodiversity)

A number of institutions are drafting biodiversity indicators for cultivated species (cf. used by farmers). In countries where seed production and marketing are regulated, it is necessary to consider the impact of this regulation when designing indicators and interpreting data.

In France, the GEVES (Institute which tests varieties for registration) published a report in 2006 which proposes 10 indicators. However, these indicators have not factored in regulation criteria. For example, one conclusion states that there are more species today in the National Register, therefore more diversity. It fails to explain that there are more species in the register simply because more species are regulated. Indeed, before these species were produit, They Were Already Used by farmers. The Legislator Does not Increase Biodiversity by Deciding to Regulate Already a specie used. The AIMS

article to explain how to factor in social regulation Criteria to Avoid distorted data and build reliable Biodiversity Indicators.

The article's reference IS Anvar S., "Biodiversity indicators: the importance of regulation", The Courier environment INRA, September 2007, No. 54, pp. 9-18.
To order a copy
Of The review: serviceclients-quae@versailles.inra.fr

GEVES Report 2006 proposes ten indicators for crop biodiversity. In an article published in the Courier environment in September 2007, I explained that the seed market is a highly regulated market. It is necessary to set the factor 'regulation' in these indicators, without which some do not show the evolution of diversity and other data of them are distorted.

For example, the report says there are more species in the Official Catalogue, and therefore concludes that there is more biodiversity . However, it is explained that these species prior to the Catalogue, were used in agriculture. It is therefore not an increase in biodiversity, just that there are more regulated species.

The aim of this paper is to suggest how to take into account the factor 'rules' to avoid distortion of data and to develop good indicators.

The reference section is: Anvar S., "Biodiversity indicators: the importance of regulation", The Courier environment INRA, September 2007, No. 54, pp . 9-18.

For a journal that contains this item: serviceclients-quae@versailles.inra.fr

Przysłowie : Kto Nie Rad

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a night together ...



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Gracia la vida.
Thanks to life.

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Photos: Michel Leduc