The Overlap between Patent and Plant Variety Protection for Transgenic Plants: Problems and a Solution

Abstract

In the field of IP protection for plants two different rights exist: patents and plant variety rights. Hence, the question of exclusive, alternative or cumulative protection arises, especially as the European Patent Convention (EPC) causes a de facto overlap of patent and plant variety protection. A critical discussion of the legal practice under the EPC, including the key cases Plant Genetic Systems and Novartis, shows the actual overlap of IP rights in plants. In order to find a solution to this problem, different attitudes towards overlapping IP rights in plants and different methods of granting multiple types of rights are discussed. The problems caused by this overlap are then analysed in the light of the European and international legislative framework (including UPOV, TRIPs and the EPC) and different policy considerations are reviewed. Finally, different possible solutions to the problem are shown and an integrated or harmonised system of patents and plant variety rights is presented as a balanced solution of the overlap problem.

Keywords: patent, plant variety right, EPC, TRIPs, UPOV, transgenic plant

JEL Classification: O34, K33, K19