Udo von Kröcher 1 Enforcement of Plant Variety Rights in the Agricultural Sector in Germany Udo von...
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1Udo von Kröcher
Enforcement of Plant Variety Rightsin the Agricultural Sector in Germany
Udo von Kröcher
Bundessortenamt(Federal Plant Variety Office)
Workshop on Enforcement of Plant Variety RightsTallin, Estonia, 4 March 2008
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Existing Plant Breeders‘ Rights under the German Plant Variety Protection Law
SpeciesNumber of protected varieties
1997 2007Agricultural species including grapes
1599 1021
Vegetables 299 157
Fruits 191 186
Ornamentals 1827 812
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Legal Basis
UPOV Convention, Act of 1991
Art. 14 (1)Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations.
Art. 15 (2)- Optional exemption from the breeder’s right- Contracting parties of the Convention are allowed, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, to exempt farm saved seed from the effect of plant breeders’ rights („farmer’s privilege to use Farm Saved Seed (FSS) without the right holder’s authorisation”).
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Council Regulation (EC) No 2100/94
Art. 13 (1, 2)
Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations.
Art. 14 (1)
Farmers are authorised to use for propagating purposes in the field (on their own holding) the product of the harvest which they have obtained by planting (except hybrids and synthetic varieties).
Art. 14 (2)
Restricted to 22 agricultural plant species (Fodder plants, Cereals, Potatoes, Oil and Fibre Plants), which are named in the law.
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Council Regulation (EC) No 2100/94
Art. 14 (3)
Following conditions have to be obeyed
- No quantitative restriction in the use of FSS- Possibility for processing the FSS- Small farmers are not charged by a fee for FSS used- Equitable remuneration which is sensibly lower than licence for CS- Monitoring by holder (breeder)- Relevant information has to be provided by farmers and processors
The said criteria are implemented by Community Regulation (EC) No 1768/95.
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German Plant Variety Protection Law
Art. 10 (1)
Protected varieties may only be produced or reproduced, processed, offered for sale, marketed etc. with the authorisation of the breeder. The breeder may make his authorisation subject to conditions and limitations.
Art. 10a (2)
- Farmers are authorised to use for propagating purposes in the field (on their own holding) the product of the harvest which they have obtained by planting (except hybrids and synthetic varieties) („farmer’s privilege”).
- Restricted to 18 agricultural plant species (Fodder plants, Cereals, Potatoes, Oil and Fibre Plants), laid down in an Annex to the Law.
Art. 10a (3)
Equitable remuneration for FSS used which is sensibly lower than licence for CS.
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German Plant Variety Protection Law
Art. 10a (4)
- Possibility of agreements between owners of variety rights and farmers as regards the equitable nature of remuneration.
- Agreements may be also signed between the professional organisations of breeders and farmers.
Art. 10a (5)
Small farmers are not obliged to pay for FSS (threshold = 92 tons of harvested cereals/farm).
Art. 10a (6)
Information about the amount of FSS used has to be provided by farmers and processors.
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Based on these community and national legal regulations the breeder is entitled to charge the farmer with fees/royalties
- for the use of certified seeds and
- for the use of Farm Saved Seed (FSS)
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Only a suitable legal basis which enables the breeder to protect and safeguard his intellectual property rights will initiate further breeding progress for the benefit of the farmer.
But: Enforcing their rights is in the responsibility of the breeders and breeders’ organisations because the Plant Protection Law is Private Law!
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How are the described private law based regulations implemented and used by the breeders in practice in order to generate income for the refinancing of the expensive breeding of new varieties?
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Royalties for certified seeds are part of the price for all certified seeds of all agricultural species purchased by the farmer, collected by the seed trader and transferred to the breeder.
This system is well-established for both, varieties protected under national law and protected on the basis of Council regulation (EC) No 2100/94.
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Concerning the remuneration payment (fees) for the use of FSS the German farmers have 3 options which are mainly based
- on the Council Regulation (EC) No 1768/95
- the (rather general) provisions of Article 10a of the German Plant Variety Protection Law and
- court case decisions
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Option 1:
Individual contract between the breeder and the farmer with a free arrangement concerning the level of fees
Option 2:
No contract between breeder and farmer but direct application of the provisions of Council Regulation (EC) No 1768/95 in conjunction with Article 10a of the German Law
- the fee for the use of FSS shall be equitable and sensibly lower than the fee for certified seed (at least 50 % lower)
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FSS remuneration fee to be paid by the farmer
Change of Certified Seed
FSS remuneration fee in % of royalty for Certified seed
In %Cereals without
Hybrid ryePulses
Potatoes
tested Not tested
80,01 - 100 0 0 0 0
60,01 - 80,00 0 0 0 0
0,00 - 60,00 50 50 40 40
Option 3:
So-called „Framework Agreement“ between the German Farmers‘ Association and the German Breeders‘ Association (2002)“
Managed by the „Saatgut-Treuhandgesellschaft (STV)“ working on behalf of the breeders.
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The relevance of the use of FSS in Germany
To how many varieties of which species does the question of fees for the use of FSS refer to?
nationally registered nationally protected
Varieties(2007)
Cereals 587 222
Potatoes 204 97
Pulses(Field Beans, Peas, Lupins)
42 28
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Acreage and the use of FSS of cereals and potatoes in Germany (2005/2006)
Species Acreage (ha) FSS use in %Acreage with FSS use (ha)
Cereals ca. 6.400.000 ca. 50 ca. 3.200.000
Potatoes ca. 275.000 ca. 50 ca. 137.000
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Potential total income by collecting the FSS fees:ca. 18 to 19 Mio. €/year
Average FSS fee:
ca. 100 €/year/farm
Present total income by collecting the FSS fees:
ca. 4 Mio. €/year
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Increasing readiness of farmers to go to court mainly in order to appeal against the requirement to provide informations
Several Court Cases- October 2001, German High Court Decision- April 2003, European Court of Justice- October 2004, European Court of Justice
Main content of these judgements is that the farmers and processors have to provide information only if the breeders or his representatives have clear indications that the farmer has used or will use FSS of his protected variety.
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- Increasing resistance of farmers against providing the requested information
- Constantly decreasing payments of FSS fees
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What can, what has to be done?
- analysis of present national legislation in the light of the present judgements
- comparison with other national legal provisions
- legal amendments on national and community level
- analysis of the private agreements