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Dutch debate on patenting and breeders’ rights not finished

Resigning Minister Verburg of Agriculture and Minister Van der Hoeven of Economic Affairs propose in their response to the report a tightening of the requirements for patents on plant characteristics. In addition, they want to stimulate discussion on this subject in Europe. Plantum (the Dutch association for seed companies), LTO, Biologica and social organizations such as Greenpeace and A SEED find this proposal inadequate. As a leading plant breeding country the Netherlands has an important position in this debate and therefore can and should play a leading role within Europe. Plantum advocates a breeders’ exemption to be included in the European Biotechnology Patent Directive, and (98 / 44 / EC). Biologica, Greenpeace and A SEED take it a step further and want the European legislation to be adjusted so that no patents on plant traits or genes are possible.


Because the MPs were not satisfied with the commitments of the Ministers Verburg and Van der Hoeven at the general meeting, they immediately held a follow up consultation on July 1. In this consultation, 5 issues were voted on.

The motions of the Party for the Animals advocating a ban on the patenting of plant and animal characteristics, were rejected. The motion calling for an adaptation of the Directive, was narrowly rejected by 71 votes against 70.

The motion of the Socialist Party (SP) was adopted. SP demands in its motion an investigation into the legal (im)possibilities of introducing a full breeders’ exemption into National, European and global patent laws. Within three months this study has to be completed and the government has to present new proposals to the parliament. Concretely this means at least that in three months on another parliament discussion on the subject will take place. Then again new motions can be filed.

That a minimal breeders’ exemption in patent law requires an adjustment of the European Biotechnology Patent Directive (98/44 / EC) has long since been clear. Adapting national legislation provides only a temporary solution for researchers. If the government introduces a limited research exemption in the Dutch Patents Act this would allow researchers to use patented plant material without needing permission of the patent holder. This exemption has also been introduced by France and Germany. Problem remains that there still permission needed to introduce newly created varieties with patented properties in the market.

Patent law and breeders’ right

The breeders’ right (kwekersrecht) has been specially created as intellectual property right in plant breeding. It protects one variety and the genetic material of this variety is not protected for further breeding. The breeders’ right provides sufficient protection for breeders to recover their investments in a new variety. Simultaneously, the breeders’ exemption leaves other breeders the opportunity to use the protected variety to develop new varieties.

The breeders’ right also includes a farmers’ privilege and gives farmers under certain conditions the right to reuse seeds of protected varieties. This is particularly important for small farmers in several developing countries but also in (Eastern) Europe are still many farmers who save from their own crop seeds for propagation.

Patent law is designed to protect inventions such as the iron. With the introduction of genetic engineering techniques in plant breeding patent law was introduced there. Although officially plant varieties can not to be patented in Europe, this is done anyway via a detour. The scope of a patent on genes or plant characteristics namely extends to all progeny containing the patented trait or gene sequence. This may also extend to varieties of other species. In practice, the applicant decides the scope of his patent until other parties make legal objections.

Unlike the breeders’ right patent law has no breeders’ exemption. This means that breeders may not work with plants that contain a patented feature without permission of the patent holder. Seed companies also need a license to bring on the market new varieties with patented characteristics. The patent holder can refuse a license or can only provide it under very unfavorable conditions.

Practice shows that patent holders use their patents to deny competing seed companies access to plant characteristics that are of general interest such as disease resistance. This blocks the innovation in breeding and seed companies with a large patent portfolio quickly develop a monopoly in a particular crop.