With a press release of 22 May 2024, the Federal Council had informed that a draft on the revision of the PatA was submitted for consultation. It’s all about
[t]ransparency in the area of patent rights in plant breeding.
Sounds like a good thing, doesn’t it?
But it’s bad. Very bad. And the title is false labelling.
Let me explain.
The draft provides for the establishment of a clearing house to be operated by the IPI. (Btw, no such thing is known anywhere else in the world.) The press release holds in warm words that the clearing house would serve as an intermediary between breeders and patent owners. In brief, breeders could use the platform to publish the varieties they wish to use for breeding. Patentees «could then come forward if their intellectual property rights were affected.» Based on the information provided by patentees to the clearing house, breeders could «decide whether they wish to use [an affected variety] or opt for another one.»
The devil is in the detail.
Which is not mentioned in the press relase.
Patentees who fail to come up with information about their patents within a time limit of ninety (90) days have forfeited their rights against that breeder. The breeder is then free to commercially use his new variety even if it still carries the patented trait, without any remuneration being due, not even under FRAND terms. (Just in case you think about reinstatement: That’s a very tough one in Switzerland.)
There is a good reason why such a clearing house does not exist anywhere else in the world: In a nutshell, this shifts the burden of any dealings with patents from breeders to patentees.
That’s a pretty unbalanced intermediary, huh?
Even more so because there simply is no lack of transparency. On the contrary, private initiatives like the PINTO database make it easy for breeders to identify and understand which varieties are protected by a patent, to very large extent. SMEs in any other field of technology would just cheer such initiatives. Some breeders not so.
Why is that?
Well, I trust this is due to a fundamental aversion to patents in certain circles. By way of example, the position paper «Patente auf Pflanzen und Tieren» (2019) of the Swiss Farmers Union (SBV) does not beat around the bush:
Der SBV ist daher klar gegen die Patentierung von Saatgut. Um die Arbeit des Züchters zu schützen, erachtet er das Sortenschutzgesetz als geeigneter als die Patentierung.
However, patents cannot simply be wished away.
Let me be clear: In my mind, the call for (more) transparency is nothing but an attempt to undermine patent protection on plants as far as possible. What is worse, the draft revision furthers exactly that.
The draft revision is buggy not only for this reason. E.g., I trust it is non-compliant with the non-discrimination requirement of Art. 27 TRIPS, too.
The consultation is still open until tomorrow, 12 September 2024. You may find my full contribution below.
✍ MW
MY STATEMENT DURING CONSULTATION
PRELIMINARY DRAFT
The preliminary draft of the revised PatA is also available in French and Italian language.
EXPLANATORY NOTES
The Explanatory Notes are also available in French and Italian language.
IPI MEMORANDUM
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BE ON THE KNOW
