Protecting a plant from imitation. It is possible, there are even two ways of doing so. With patent and with plant breeders' rights. Just like you can combine design rights and patent rights to protect a smartphone, for instance, you can use both plant breeders' and patent rights for plants. How exactly does it work? And why would you want to use both of these rights?
Patent versus plant breeders' rights
Suppose you take a photo of someone. That photo more or less captures the complete picture: the colour of that person's eyes, their hairstyle, their clothes, etc. Plant breeders' rights do something similar for plants. They protect the complete picture: from the colour of the flowers to disease resistance and everything else in between. Plant breeders' rights are similar to design rights, which protect the distinctive appearance of an innovation.
When is a plant patentable in Europe?
With a patent you protect that one special technical property that you have developed with a great deal of effort. This could be a plant's resistance to diseases or a special flower colour that you obtained through genetic modification. In Europe, however, you can only apply for a patent on a plant when you actively modify the genetic material of a plant. If you were to find a plant somewhere with a special property such as resistance to a certain disease, for instance, then it is not possible to patent the plant with that specific property in Europe, even when you cross that property into a commercial variety. However if you were to modify a plant's DNA using modern techniques in order to obtain the same resistance, then the plant would be patentable.
Two are stronger than one
As a breeder, why would you want to combine the two rights? When you have spent years working on resistance to a specific disease, for instance, a great deal of time, money and effort will have gone into this. With a patent, you can protect this specific resistance property. You can then go on to introduce this specific property into different plant varieties, each of which will be protected with plant breeders' rights.
It's the same as with the iPhone. Apple doesn't say: ‘We don't need a patent on the technology because we already have design rights on the appearance.’ No, the design is protected by design rights and the technology, such as the camera technology, is protected by patents. Together, they are stronger than one. They are not alternatives for each other but complementary forms of protection that can be used strategically. In an industry where innovation is the key to success that can make the difference between flourishing or withering away.
