Chapter 2: Franklin Barley: Patent Law and Plant Breeders’ Rights
2. Franklin barley: patent law and plant breeders’ rights Historically, the patent system was ill-adapted to plant varieties. Plant breeders ﬁrst sought protection under the industrial patent system. However, a number of technical diﬃculties were encountered in seeking to apply the rules of a system designed to protect technical inventions to plant varieties, which were thought not to reproduce themselves precisely and whose appearance could vary depending upon the environment in which they are grown. Margaret Llewelyn observes: There were two main reasons why the patent system was seen as inappropriate. First, plant material was not regarded as capable of meeting the requirements of novelty, inventive step and disclosure. Secondly, it was not thought to be in the public interest to permit such an extensive monopoly over plant varieties, given their communal importance. Underlying this was the view that it was desirable to retain, in so far as it was possible, the tradition of free exchange of new plant material between plant breeding institutes. This would ensure the widest possible dissemination and use of the new combinations of genetic information.1 For these reasons, it was decided to introduce a special form of protection which would be designed to support a speciﬁc industry, the plant variety right. The International Convention for New Plant Varieties (the UPOV Convention 1961) was adopted in 1961 and an international system for the protection of plant breeders’ rights was established.2 However, the scope of patentable subject matter expanded, slowly and incrementally, until it covered...
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