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its scope recognising the specific nature of plant breeding and the relevance of the protection of plant varieties by PVPs under UPOVs international convention. It also excluded from its scope essentially biological processes whose definition was clarified in 2010 in a deci- sion of the Enlarged Board of Appeal of the European Patent Office. THE ACCELERATION OF PLANT BREEDING PROCESSES In the 2000s an explosion in the acquisition of new knowledge in particular about genomes and the development of computing power for the use and analysis of data dramatically changed the impetus for and speed of plant improvement programmes. In terms of vari- etal creation this acceleration in the innovation process led to the respective timescales for innovation and commercial obsolescence falling out of phase. In a short space of time as a result of using the breeder exemp- tion the generation N1 innovation is on the market and in direct competition with its founder initial variety of generation N. This direct competition begins before the start of the commercial obsoles- cence of generation Ns variety endangering the win-win mechanism that had worked well up to this point. UNCERTAINTIES IN THE SCOPE OF PATENT APPLICATION In the 1990s those engaged in plant improvement began using patents to protect some of their innovations where they met the relevant criteria for patentability. The scope of this new use of the patents was subsequently framed in European Directive 9844 and other legal framework that govern European patents. This huge advance in knowledge has also enabled a large number of biotechnological innovations whose needs for protection by a suitable intellectual property tool have led to an increasing use of patents. Adding to all this the rapid developments in knowledge and technol- ogy and the fact that it is still early days for the patentability of biotech- nological inventions meaning all actors in the field both applicants and examiners are somewhat inexperienced we can better understand why in the mid-2000s this state of affairs led to questions being raised about both the patents themselves and the interplay between PVPs and patents. With regard to patents a number of questions arose in terms of their application in the field of plants. We will highlight two particularly impor- tant ones here i should an innovation be classed as being inventive in nature as opposed to simply a discovery when it makes use of pre-existing genetic resources only ii what is the definition of the essentially biological processes that apply in the particular field of plant improvement This led the European Patent Office to gradually clarify through case law the scope of patents and the granting of claims. Little by little the issues have been clarified but there remain areas of debate. With respect to the interplay between PVPs and patents one of the questions raised was that of the application of the breeder exemption. It is possible for a variety to be protected by a PVP and at the same time that one of its characteristics fall within the scope of a patent claim. For the breeder the problem of the interface between two forms of intellectual property rights is thiscan the breeder exemption be exercised to use the protected variety for breeding purposes without infringing the patent This is currently the subject of much debate including within the plant improvement sector. It is essential the questions raised are clarified so that all actors can continue their activities with confidence. We will return to this issue. HOWINTELLECTUALPROPERTYTOOLSNEEDTODEVELOP In the light of the analysis above we believe the developments required to cope with tomorrows issues need to be considered as a whole. We think solutions are possible which will allow a way out of this apparent conflict between the two forms of protection. Moreover it is possible to give each intellectual property tool its proper place and relevance in the necessary framework for the protection of innovations and re-establish a clear and workable framework and set of protective tools for the plant improvement sector. It is important to remember here the importance of the need for both tools PVPs and patents in affording protection to all innova- tions produced by the plant improvement sector and in plant biology in general. Each tool can be applied where it is most effective and rel- evant striking a balance between protecting innovation and sharing knowledge and progress to the benefit of society as a whole. THE DEVELOPMENT OF UPOV We are convinced that the sui generis rights created by the UPOV convention and the Proprietary Variety Protection certificate that materializes them remain the best-adapted tools for the protection of plant varieties and we would defend their exclusive use for this purpose as well as supporting the exclusion of plant varieties from the field of patentability. However it has become imperative to find a way to restore the virtuous circle that operated for over 40 years based fundamentally on the synchronicity of the cycles for innovation and commercial obsolescence. Specifically this requires consideration of modifica- tions to the UPOV convention to restore this synchronicity with the discussion focusing on the time when the option to exercise the breeder exemption comes into play and considering this as a func- tion of different families of species because the requirements for synchronicity can vary greatly between them. It is also reasonable to assume that modifying the convention in such a way would make use of PVPs more attractive especially in areas where plant varieties can also be protected by patents in particular where that protection relates to the protection of complex combinations of genes obtained through plant breeding. DEVELOPMENTS IN THE SCOPE OF EUROPEAN DIRECTIVE 9844 In parallel the scope of patent use in the field of plants needs to be clarified which in turn requires clarification of the scope of Directive 9844. The scope of this directive currently excludes plant varieties and essentially biological processes. We highlighted earlier the relatively recent nature of the use of patents in the field of plant biology. It seems essential in light of experience in the last 10 years to clarify the directives scope with the aim of further defining the nature of exemptions applying to some innovations taking place in plant varieties. A first step was taken with the decision of 9 December 2010 Procedure G207 of the Enlarged Board of Appeal EBA of the European Patent Office EPO which took the view that a process for the production of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is an Essentially Biological Process EBP and is therefore excluded from the scope of patentability. However in its decision of 25 March 2015 Procedure G213 the EBA did not exclude products resulting from EBPs from the scope of patentability. The EBA stresses its strictly legal interpretation of the European Patent Convention and Directive 9844 as they stand today while at the same time recognising this response leaves the ongoing debate on the issue open with regard to other bodies. Following these two EBA decisions we are faced with a paradox. While we consider the essentially biological processes described in Decision G207 in 2010 correspond to the definition of plant breeding activity the random crossbreeding of plant genomes and subsequent selection in the progeny and that plant varieties are excluded from patentability in the EU the products produced from these EBPs are patentable. Logically a rationalisation of this situation should lead to products resulting from these EBPs also being excluded from patentability. It is important to note the products resulting from such pro- cesses are combinations of the genes present in plants and the sui generis system developed by UPOV was designed to protect these combinations of genes as a whole. Finally and more generally it seems the use of purely biological processes that result in unpredictable recombinations or generation EUROPEAN-SEED.COM I EUROPEAN SEED I 29