Industry’s wish list for the next revision of UPOV
The big players in the world seed industry are grumbling about loopholes in the plant variety protection system, which was the alternative to patenting that they set up in the 1960s. The Europeans want to get rid of farmers’ limited entitlement to save seed. The Americans want to restrict the exemption by which breeders have the free use of each other’s commercial varieties for research purposes. In both cases, the point is to reduce competition and boost profits. In the short term, the victims will be farmers, who will probably end up paying the seed giants an additional US$7 billion each year. But in the long run, we will all lose from the growing corporate stranglehold over our food systems. This briefing traces the recent discussions within the seed industry and explores what will happen if a plant variety right becomes virtually indistinguishable from a patent.
No more farm-saved seed and no more free access to protected varieties for breeding. In other words, remove the two main differences between plant variety protection and industrial patents. That’s the beginning of the seed industry’s wish list for a new revision of the UPOV convention. 
When plant variety protection (PVP) was first standardised by the UPOV convention in the 1960s, it was a mostly copyright-like form of intellectual property. The variety owner had a monopoly on the commercial propagation and marketing of the variety, but little control over other uses. Farmers were free to multiply seed for their own use for as long as they wished. Other breeders could freely use protected varieties to develop their own material.
This changed dramatically with the 1991 revision of UPOV. Based on successful lobbying from the global seed industry, the revision turned PVP into something very close to a patent. Farm-saved seed was allowed only as an optional exception, restrictions were put on further breeding, and monopoly rights were extended all the way to harvest products. This is the version of UPOV which is now being rapidly rolled out across developing countries as a result of the WTO TRIPS  agreement.
The industry, however, is still not content. Over the past few years, it has started gearing up its lobby machine for a final attack on the remaining “loopholes” in the PVP system. If it succeeds, it will certainly spell the end of farm-saved seed, probably the end of free access to PVP-protected material for plant breeding, and a general tightening of the ropes with longer terms, stricter enforcement and wider scope of monopoly rights.
This GRAIN briefing traces the recent internal discussions of the seed industry and tries to visualise what will happen if a plant variety right becomes a patent. Will UPOV become superfluous and slowly disappear? Not necessarily. The seed industry is promiscuous in its use of intellectual property rights (IPR). It likes to have many options. Judging from developments in the USA, the future lies not in opting for one form of IPR over another, but in combining two, three or more layers of legal monopoly on top of each other.
When the global seed industry starts again to sing its familiar lobby tune about strengthening IPRs, it is useful to know some history. No matter how often lobbyists repeat that strong IPRs are necessary as an incentive for plant breeding, the fact is that for most of its existence, the seed industry managed to develop and thrive without any IPRs at all. IPRs on seeds and other propagating material are a very recent phenomenon. They played no part in the establishment and rapid expansion of the seed industry during the first half of the 20th century.
With a few insignificant national exceptions, no forms of IPRs were available for plant breeders until just over 30 years ago. For all practical purposes, the original version of the UPOV treaty was the beginning of plant IPRs. And although adopted in 1961, it did not come into practical use before the 1970s. By that time, commercial seed had all but eliminated traditional farmer-bred varieties in developed countries, and was making inroads into the developing world.
So it was not until the seed industry had already become dominant that it was able to secure IPR protection, first with UPOV PVP, and soon after with industrial patents as well. This is not a coincidence. As a large and well consolidated industry it now had considerable lobbying power over governments, much more than it had when it was newly established in the first decades of the 20th century.
Had they been more powerful, plant breeders would have secured monopoly rights at a much earlier stage. There is evidence of lobbying at least from the 1920s, and while unsuccessful regarding specific IPRs on the seed itself, the industry was able to use several other mechanisms to reduce competition from traditional farmers’ seeds. 
Seed laws were the most important factor in many countries. By making seed certification mandatory and trade in uncertified seeds illegal, governments indirectly supported commercial seeds against traditional seed-exchange systems.
Trademarks could be used to protect the variety name. Even if the seed as such could be freely multiplied and traded, only the breeder had the right to use the trademarked name.
Farm credit policies and support schemes have long been deployed to oblige farmers to use certified seeds. This means that as a farmer you may be locked out from low-interest loans, crop insurance or direct support payments unless you use a government-approved commercial variety.
Patents on plants were not explicitly excluded by the Paris Convention, and were used to some extent by a handful of European countries, particularly Germany for a period around 1930.
Hybrids became a means to force farmers to buy new seed every year. Hybrid seed cannot be reproduced on-farm, because it requires two different parent lines, which are kept secret and closely guarded by the seed company. Between 1930 and 1960, the whole of the US main crop – maize – was gradually converted to hybrid seed. While officially this was done to secure the heterosis effect (yield increase), in reality the main reason was the monopoly effect. 
During the 1930s and 1940s, a few countries experimented with specific IPR systems for plants. In the US, the Plant Patent Act (PPA) was passed in 1930.  Still in force today, it allows for monopoly rights on the multiplication of asexually propagated plants (those multiplied by tubers, cuttings, grafts or other vegetative material, not by seed). The system was mostly geared to breeders of ornamental plants, has not been much used and was never copied in any other part of the world. In both Germany and the Netherlands, however, national PVP systems were set up which became forerunners of UPOV.
But when the serious lobbying for an international plant IPR system started after the Second World War, the seed industry was not asking for specific PVP systems, but for ordinary industrial patents on plants. The initiative came primarily from the European breeders, who were already developing a sizeable trade across their borders, and saw the need for international regulation. The newly formed international breeders’ association, ASSINSEL,  became the main voice of the industry, and it adopted the pre-war German patent practice as its model.
The idea of industrial patents on plants met with double resistance, however. Several European governments thought that it threatened the farm economy by giving industry too much power over the seed supply. A West German minister of agriculture is quoted as fearing that the rural population would be “reduced to begging”. Patent experts, represented by AIPPI, saw another threat: to the credibility of patents. Plants are living and evolving organisms and therefore cannot be exhaustively described in the way required by a patent – well enough to allow someone else to “repeat the invention” exactly. Thus patents on plants would require far-reaching exemptions from normal patent criteria. ASSINSEL had to settle for a sui generic  IPR system, and jointly with the French government it initiated the negotiating process that was to result in the UPOV Convention of 1961.
This first version of UPOV PVP was more like a copyright than a patent. The scope of the monopoly was limited, but so were the criteria for protection.
- The owner had the right to control commercial propagation and marketing, but no other uses. Farmers were free to save seed for their own use for as long as they wished, and use the harvest without restriction.
- There were no rights over the genetic content of the variety. Other breeders could freely use a protected variety to develop their own material.
- There was no novelty requirement. As long as the variety was “distinct, uniform and stable” it could be protected.
- There was no requirement to prove invention. A pure discovery could also be protected.
Ironically, UPOV PVP had just barely come into practical use before it faced competition from the solution that the seed industry had wanted in the first place – patents on plants. In 1980, the US Supreme Court ruled that there was nothing to stop patents on any kind of living organisms. Europe and other developed countries rapidly followed suit. Why this sudden change of mind? The usual explanation is that genetic engineering and other biotechnologies had by then made it possible to meet the patent criteria with living organisms. But a gene transfer does not give much more predictable or repeatable results than a sexual crossing, and exhaustive description is still impossible. The description requirement is routinely replaced by the deposition of a sample of the organism in a gene bank. In reality, it was probably the much greater lobbying power of the industries behind genetic engineering – the same transnationals that dominate pharmaceuticals and chemicals – that made the difference. Not only were they many times larger than the conventional seed companies, but genetic engineering was also perceived by governments as a crucial technology for future international competitiveness.
The rapid entry into plant breeding of large corporations armed with both genetic engineering and patents caused near-panic among conventional seed companies. One of their coping strategies was to demand a radical strengthening of UPOV PVP, to make it more comparable and competitive with patents. The original 1961 Convention had been left substantially unchanged through two minor revisions in 1972 and 1978. With UPOV 1991, the conventional breeders got a dramatically expanded monopoly right which goes far beyond seed multiplication and in several respects is very close to a patent. 
- Farm-saved seed is no longer automatically allowed. Only as an optional exception can a government legalise seed saving for the farmer’s own use – and even then the seed company has the right to a royalty payment.
- The monopoly also extends to the harvest, and optionally even to products made from the harvest. If a royalty has not been paid on the seed, the variety owner can demand payment from the final consumer of the harvest.
- Other breeders are still allowed to use protected varieties for breeding, but if a new variety is “essentially derived” from an existing one, it does not qualify for a PVP of its own. This rule was introduced specifically to block genetic engineering companies from getting new PVP protection on varieties just because they added a single gene.
- There is now a novelty requirement.
- Double protection (PVP plus patents) is now allowed.
- The minimum term of protection is increased to 20–25 years (previously 15–18).
- All plant species must be covered (previously only a minimum of any 24 species).
Another major development also started in the 1980s – the negotiation of the WTO TRIPS agreement, which would become the vehicle for expanding plant IPRs into the developing world. TRIPS made it mandatory for governments to provide some kind of IPR protection for plants – by patents or a sui generis system or both. Although neither PVP nor UPOV are explicitly mentioned in WTO texts, the TRIPS agreement has caused a large number of developing countries to adopt UPOV-like PVP systems over the past decade, for lack of a better alternative. Most want to avoid patents on plants. They could develop their own national sui generis systems from scratch, but that is a very resource-consuming task compared to adopting a ready-made solution off the shelf. Many of these countries have also become UPOV members, usually as a result of bilateral pressure from the USA, EU or other developed countries (see Box 3 on page 10). Before TRIPS, UPOV was a very small organisation with two dozen members, all of them developed countries except South Africa. Since 1994, the membership has more than doubled, and the great majority of the new additions are developing or transition-economy countries, which now make up close to half the membership. 
With UPOV 1991 thus well on its way to becoming a global standard, rather than only a club for rich countries, the seed industry lobby is beginning to formulate its demands for the next UPOV revision. The contours are still very vague. So far this is only a more or less internal discussion in industry fora, with probably informal lobbying of selected governments. So a formal negotiation is still some time away, and a finished deal can at least not be expected before UPOV’s 50th anniversary in 2011. But there is no doubt about the general direction. This will be the final attack on the remaining “spaces” (as seen by farmers and researchers) or “loopholes” (as seen by the industry) in the PVP system, to make it virtually indistinguishable from a patent. If successful, it will certainly spell the end of farm-saved seed, probably the end of free access to PVP-protected material for plant breeding, and a general tightening of the ropes with longer terms, stricter enforcement and wider scope of monopoly rights.
To understand the current discussion, it is important to realise how drastically the industry structure has changed since the 1980s. The discussions which led up to UPOV 1991 were characterised by polarisation. On one side stood the large pharmaceutical and chemicals corporations, mostly US-based, which were newcomers to plant breeding, heavily into genetic engineering and completely focused on patents. On the other side stood the conventional seed industry, strongest in Europe and organised in much smaller companies, which saw itself as defending conventional breeding against the onslaught of both genetic engineering and patents.
Today, polarisation has given way to consolidation. Much of the conventional seed industry has been bought up by the transnationals or has entered into cooperation agreements with them. Typically, nationally or regionally based conventional seed companies are now taking on a role as distribution channels for the large transnational players, who need the market know-how and goodwill that the old names in the business can provide. Likewise, their portfolios of regionally adapted varieties are highly attractive as carriers for the engineered genes developed by the transnationals.
In other words, this time a strengthening of UPOV is a common interest of the whole seed industry, large and small, conventional or not. On the surface, there are still cultural differences between the European tradition, defending the PVP system as a “balanced solution”, and the North American one which regards the choice of IPR system as a purely pragmatic issue and sees no need for “balance”. In practice, however, it is difficult to see anything substantially different in the way European companies use IPRs. They too take out patents whenever they can, and they are sometimes the most eager to remove the “balancing” factors built into the PVP system.
Nevertheless, it is illustrative that the discussion about the next UPOV was kicked off by Pioneer Hi-Bred. Pioneer is the largest conventional seed company in the world, and has dominated the US maize seed market since the 1930s. It is now a subsidiary of the chemicals and genetic engineering giant DuPont – a prime example of the consolidation process. In 2004, Pioneer ex-president Richard McConnell bluntly told an international seed industry audience that it was time to create a “level playing field” and give plant varieties under PVP “parity protection … with biotech inventions covered by utility patents”. He was also clear about the road to that goal: “industry leadership should identify and implement the steps to achieve that desired state.” 
For the US industry, this was not very controversial. The American Seed Trade Association promptly adopted most of the Pioneer proposal as its own.  But many of the Europeans were initially shocked, mainly because McConnell openly questioned what conventional breeders regard as the very core of the UPOV system: free access to protected varieties for further breeding. He specifically proposed that breeders should not be allowed to use any PVP-protected variety in their research programmes until it had been on the market for 10 years. On the other hand, Europeans have been the most eager of all to undermine yet further the other key characteristic of UPOV PVP: the right to use farm-saved seed. Representatives of the European Seed Association have gradually stepped up their attacks on the current rules, and now call for the farm-saved seed exemption to be eliminated altogether.  (See Table 1.)
Table 1: UPOV’s gradual encroachment
Optional, minimum any 24 species
Must cover all plant species
Must cover all plant species
All plant material, Optionally products
All plant material and products
Period of protection
Use for breeding
Always allowed, but no new PVP for “essentially derived varieties”
No use until after 10 years, then only with registration and royalty to owner
Use farm-saved seed
Allowed only as optional exception and only if royalty paid on seed
Separate for each country
Separate for each country
One international application for all countries
Double protection with patents
After a couple of years of fairly intense discussions, an industry consensus appears to be emerging. There are still differences of detail, especially regarding access for breeding, but in return for getting rid of farm-saved seed, the Europeans are probably willing to go quite far in restricting breeding access.  And apart from the two main issues, there is already agreement on a number of other changes to be proposed. What follows here is the picture GRAIN has been able to piece together of what the next UPOV would look like, if and when industry succeeds in achieving its “desired state”.
- Farm-saved seed. Saving seed of protected varieties is likely to be prohibited altogether. Just like a patent, a PVP will give the owner an unlimited right to control all uses of the variety. The current option for governments to allow farm-saved seed as a national exception will disappear. In theory, there will still be an option for farmers to make licensing agreements with variety owners, just as there is under patent law. In practice it is very unlikely that seed companies will give up their acquired right to control all seed growing and thus maximise their profits. (See also Box 1, about the total value of farm-saved seed, on page 5.)
If the industry does not succeed in persuading governments to ban seed saving altogether, the fallback alternative is to make governments responsible for royalty collection and make non-payment a criminal offence. Especially in Europe, seed companies are already pressuring governments to strengthen national legislation for enforcement of licence payments (see Box 2 on page 8).
- Access for breeding. The current right to access PVP-protected material for breeding will probably disappear. First, there will be a period of at least 10 years when no breeding use at all is allowed, just as with a patent. Then there will be a limited right to access, comparable to what in patent law is called a compulsory licence. Each access will have to be registered and a licence fee paid to the variety owner. Today, a breeder can simply buy commercial seed of a protected variety for use in a breeding programme without even informing the variety owner. This will no longer be possible.
- Seed deposit system. In order to implement the restrictions on access, a seed deposit system will be created where samples are made available by variety owners, just as in the patent system. Only seed which is accessed from a depository according to a formal procedure and with a licence agreement will be legal to use for further breeding.
- All products covered. The rights on the plant variety will be extended to cover all products made from the variety, so that a variety owner will be able to collect royalties from the end user – such as the brewing or baking industry – if they have not been paid by the grower. This is currently an option that can be implemented in national PVP legislations.
- International application system. An international system will be created for filing a single PVP application valid in all UPOV member states. A similar system already exists for patent applications – the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organisation (WIPO). 
- Longer terms of protection. An increase to at least 25–30 years is probable. These are the terms now used for the EU Community PVP. Industry is already complaining that they are too short for certain crops. 
- Stricter criteria for essentially derived varieties (EDVs). Industry is asking in general terms for stronger rights over EDVs and more effective enforcement, and in specific terms for a reversal of the burden of proof, meaning that the alleged EDV breeder would have to prove his innocence, rather than the accuser having to prove guilt. 
Any future for plant variety protection?
If UPOV PVP is revised to the point of being almost impossible to distinguish from an industrial patent, what is the point of having a separate system at all? Will it simply disappear or merge into the patent system? Some apparently think – or wish – so.
A recent paper by two leading US experts in plant IPRs argues that PVP is already an obsolete system and should be laid to rest, or at least completely redesigned from the bottom up.  Much of their argument rests on the idea that plant varieties are no longer a relevant category in the era of genetic engineering, that they will increasingly be reduced to a kind of distribution package for genetically engineered traits, which will be the only thing valuable enough to warrant IPR protection. That is a ridiculous exaggeration of the value of adding a single gene or two to a variety with an evolutionary history of hundreds or thousands of years, and like many other predictions from the genetech industry it is bound to be proved wrong. Plant varieties are a problematic concept for other reasons – in particular because they artificially arrest evolution at an arbitrary point of “stability” – but there are no serious reasons to think they are about to go extinct.
There is one very simple reason why the seed industry will almost certainly want to keep the PVP system, and that is its character of “objective” rather than “prospective” protection  – in ordinary language, you can always get a PVP on a variety, whether it is an improvement or not. All you need to show is that it is sufficiently new, distinct, uniform and stable. There is no requirement to prove any “inventive step” or future “utility”, as there is with patents. In fact, it is still possible under UPOV 1991 to register pure discoveries for PVP, provided some minimal development has taken place. Most plants registered for PVP would be unlikely to meet the criteria for patent protection. So given that the next UPOV will offer very nearly the same level of monopoly rights as patents, but without the tougher criteria, the industry would have to be crazy to turn it down.
Another compelling reason for the industry to hang on to UPOV is that many developing countries are likely to continue rejecting the patenting of plants, even though bilateral pressure is applied in free trade agreements to force them to adopt it. In those cases, a patent-look-alike PVP might be a monopoly saver for the seed industry.
But above all, it is wrong thinking altogether to assume that there is an either/or situation between PVP and patents. Even though some parts of the seed industry still try to hard-sell UPOV as the “good cop” compared to “bad cop” patents, it should be obvious by now that, just like in the movies, the two cops are actually working as a team. PVP and patents are complementary, not mutually exclusive. In the US – as well as in Japan, Korea, Australia, and a few developing countries – a plant variety can even be protected simultaneously by PVP and patent. In Europe it is not possible to patent a variety, but the ban is easily and routinely circumvented by applying PVP to the variety and a patent to, for example, “a plant of species x with the gene y”.
And it does not stop at double protection either. A very knowledgeable source claims – with great pride – that under US law it is now theoretically possible to have up to seven different forms of legal protection for the same plant variety: under federal law a PVP, a utility patent, a plant patent under PPA (if it’s an asexually reproduced plant), plus a design patent; and, under various state laws, protection for contractual monopoly claims (seed wrap contracts), trade secret protection, and protection against unfair competition.  While this may not yet be true in many other countries, the trend is no doubt global. It is difficult to discern any principle for the legal strategies of the seed industry other than “whatever we can get away with” – an attitude well-known for decades from the operations of the big pharmaceutical and chemicals corporations. As illustrated by a handful of recent examples (see Box 3 on page 10), the innovativeness is as striking as the ruthlessness. Any sense of “balance” between the rights of breeders and the rights of farmers – or of society at large – is utterly lacking.
Robbing farmers and stifling innovation
What would be the consequences if seed companies succeeded once again in imposing their IPR agenda on UPOV member governments? The immediate effects are obvious. Banning farm-saved seed means an enormous value transfer from farmers to corporations. It would be especially destructive because for the first time a change in PVP rules would have a direct effect on large numbers of farmers in developing countries and poor transition economies. This is about outlawing an important part of a farmer’s livelihood and culture, not only in Europe and the USA but also in places like Bolivia, Moldova, Uzbekistan and Vietnam, for no better reason than to increase the profits of Du Pont, Bayer, Syngenta, and Monsanto.
Maybe poorer countries will have some “balancing” influence at UPOV as their membership grows, but we can be sure that the seed industry will do whatever they can to prevent it. In a telling episode during the IPR seminar at the June 2006 congress of the International Seed Federation, one of the very few developing country delegates, representing the Seed Trade Association of Kenya, took the floor in an open discussion. He did so to argue the importance of farm-saved seed for developing countries, and to demand that ISF acknowledge and support this. He was brusquely called to order by the ISF Secretary-General, who snapped that this was completely out of the question.
The long-term consequences are equally serious but more insidious. The history of the seed industry provides an instructive example of how increasing IPR protection creates not an incentive but a barrier to innovation and development. The big strides in yield and resistance improvement during the 20th century were made before IPR protection was available to plant breeders, and while much of the variety development was done in the public sector. And in any case, these big strides were mainly due to the one-off effect of selecting and combining the best traits from thousands of farmer varieties, locally selected over centuries – it was more a windfall than a product of patient and systematic research.
Since then scientific plant breeding has delivered nothing comparable. We have seen that in many cases individual farmers can match – or beat – the performance of present commercial varieties by simple on-farm selection. The seed industry has every reason to fear competition from farm-saved seed, not as they claim because it threatens innovation, but because it exposes their lack of it. Commercial breeding is increasingly making itself irrelevant to the real-world concerns of farming. Its current focus on unsustainable single-gene traits in the best cases, and outright dangerous genetic experiments in the worst, threatens to leave agriculture very badly prepared for the great challenges of the near future, such as climate change and the need to wean ourselves off our dependence on fossil fuels.
Constantly strengthened IPRs have become, as for so many other stagnant industries, the seed industry’s primary defence against competition.  This process has now gone so far that even very conventional analysts are starting to notice how the consolidation of the seed industry is reducing research and development.  Both the attack on farm-saved seed and the proposed near-elimination of free access to varieties for plant breeding exemplify the same trend. Unable to produce value through innovation, the industry is trying instead both to grab the last remaining segment of the seed market from farmers, and to increase its earnings on existing varieties by blocking research access and thereby intentionally obstructing progress in breeding.
 UPOV means the International Union for the Protection of New Varieties of Plants; the acronym is from the French name. Website at http://www.upov.int
 TRIPS, the Agreement on Trade-Related Aspects of Intellectual Property Rights, was one of the package of agreements which entered into force when the World Trade Organisation (WTO) was established in 1994. Website at http://www.wto.org
 For this and in general for a more detailed account of the lobbying and political games leading up to the UPOV convention 1961, see Robin Pistorius and Jeroen van Wijk, The Exploitation of Plant Genetic Information, University of Amsterdam, 1999, especially pp. 44–51 and 77–85.
 It has never been proved that hybrids have inherently higher yield. Many independent scholars question the whole idea, and seed industry sources sometimes admit that the “built-in plant variety protection” is the real attraction. See GRAIN, “Hybrid rice in China – A great yield forward?”, Seedling, January 2007. Available at http://www.grain.org/seedling/?id=455
 For more on the PPA and in general for the history of plant IPRs in the US, see Cary Fowler, Unnatural Selection. Technology, Politics, Law and the Rationalisation of Plant Evolution, Uppsala University, 1993.
 ASSINSEL is the International Association of Plant Breeders (acronym from the French name). The organisation merged in 2002 with the International Seed Trade Federation (FIS) to create what is now called the International Seed Federation, ISF. Website at http://www.worldseed.org
 Stephen A. Bent, “History and Portents for Intellectual Property Rights in Agricultural Innovation”, Patent Protection of Plant-Related Innovations: Facts and Issues, ISF Seminar, Copenhagen, 1–2 June 2006. A CD with the seminar papers can be ordered from the International Seed Federation secretariat at [email protected]
 AIPPI, the International Association for the Protection of Intellectual Property (acronym from the French name), http://www.aippi.org
 An IPR system is called sui generis (Latin for “of its own kind”) when it is designed for a specific type of product, rather than general in scope like patents or copyright.
 The different versions of the UPOV convention can be found under Publications at http://www.upov.int
 Membership figures at http://www.upov.int under About UPOV
 Richard L. McConnell, “Developing Genetic Resources for the Future – the Long Look”, Protection of Intellectual Property and Access to Plant Genetic Resources, ISF International Seminar, Berlin 27–28 May 2004. A CD with the seminar papers can be ordered from the International Seed Federation secretariat at [email protected] McConnell’s Pioneer colleague, Germplasm Security Coordinator Stephen Smith, had already delivered a very similar message at a UPOV meeting the previous year: Stephen Smith, “Dissemination of Biotechnology into Agriculture”, WIPO–UPOV Symposium on Intellectual Property Rights in Plant Biotechnology, WIPO–UPOV/SYM/03/3, Geneva, 24 October 2003. Available at http://tinyurl.com/253bp2
 American Seed Trade Association, Position Statement on Intellectual Property Rights for the Seed Industry, 15 July 2004. Available at http://www.amseed.com/newsDetail.asp?id=97
 See for example Claude Grand, “Does the enforcement system meet the needs of the breeders?”, Enforcement of Plant Variety Rights in the Community, Seminar of the Community Plant Variety Office, Brussels, 4–5 October 2005. Available at http://tinyurl.com/ytn5d9 or Judith Blokland, “Do the legal tools meet the needs of the breeders”, Regional Seminar on Enforcement of Plant Variety Rights, Community Plant Variety Office, Warsaw, 11–12 May 2006. Available at http://tinyurl.com/28bvcg Both call for elimination of all rights to save seed on-farm in Europe.
 For the views of the Intellectual Property Manager of Limagrain, the largest Europe-based seed company, see Pierre Roger, “A Professional European View on Intellectual Property for Plant-Related Innovations”, Patent Protection of Plant-Related Innovations: Facts and Issues, ISF Seminar, Copenhagen, 1–2 June 2006. A CD with the seminar papers can be ordered from the International Seed Federation secretariat at [email protected]
 For information about the PCT, see http://www.wipo.int/pct/en/index.html
 See for example Grand (2005) and Blokland (2006); details given in footnote 14
 See for example Essential Derivation. Information and Guidance to Breeders, International Seed Federation, June 2005. Available at http://tinyurl.com/2fsvs8 American Seed Trade Association (2004), details given in footnote 13 on page 6; and McConnell (2004), details given in footnote 12
 Mark D. Janis and Stephen Smith, Obsolescence in Intellectual Property Regimes, University of Iowa Legal Studies Research Paper 05-48, Iowa City, April 2006. Available at ssrn.com/abstract=897728 (free registration necessary for download).
 Bent (2006); details given in footnote 7.
 Edmund J. Sease, “Protections Available For Plants Under United States Laws, Both Federal and State”, Patent Protection of Plant-Related Innovations: Facts and Issues, ISF Seminar, Copenhagen, 1–2 June 2006. A CD with the seminar papers can be ordered from the International Seed Federation secretariat at [email protected] Edmund Sease was the main legal counsel for Pioneer Hi-Bred in the recent Supreme Court case which reconfirmed and considerably strengthened the legal basis for patenting plants and other living organisms in the USA (JEM Ag Supply vs Pioneer Hi-Bred). Regarding design patents, he admits that there is as yet no legal precedent showing that they could be used for plants, but notes that as the JEM decision qualified a plant as “an article of manufacture” for the purpose of utility patents, why would it be different for the purpose of design patents?
 For a general background on IPRs as an anti-competitive tool, with examples mainly from the pharmaceutical and entertainment industries, see Peter Drahos and John Braithwaite, Information Feudalism. Who Owns the Knowledge Economy?, Earthscan, London, 2002.
 David E. Schimmelpfennig et al., The impact of seed industry concentration on innovation: a study of U.S. biotech market leaders, Economic Research Service, US Department of Agriculture, Washington, 2004. Available at ssrn.com/abstract=365600 (free registration required for download). Schimmelpfennig and colleagues have primarily documented how industry consolidation leads to a decrease in genetech research, which may be a good thing, but nevertheless illustrates the point.