Proposal to neutralize the deleterious effects of the overlap of rights between patents and plant varieties in plant propagation material

Abstract

The overlap between patent rights and plant variety rights has increased with the so-called modern technologies of plant breeding. In view of this fact, the law relating to intellectual property rights has not kept pace with innovations in the biotechnology field, given the absence of limits or even of a legal neutralisation regarding the indirect effects of a process patent over the genetic material of plants as against product patents (seeds themselves and derivatives) capable of harmonising and balancing the legislation relevant to the matter. Indeed, the discussion has dragged on for some time in the courts as to which processes and technologies are to be covered by the concept of "genetic modification" and, in turn, which results deriving from those technologies may fall under the term "genetically modified organisms", instances of double protection, royalty payments, among other issues. The study will examine the intersection between patents and plant varieties in a plant variety and/or plants and will seek a proposal to neutralise and/or resolve the existing conflicts of overlap between the distinct exclusive rights and the national laws on the matter.