(Sometimes) Invisible to the Eyes. Innovation As Driving

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The business magazine for horticultural plant breeding 2013 APRIL

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PBR TOPSY-TURVY What is essential How UPOV and its members is (sometimes) turn the system upside down invisible to the eyes. SEEING DOUBLE… YOU BET Innovation as driving Minimal distance between varieties force of the market! Diversity is our Glory star® ROSES & PLANTS Conard-Pyle

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www.starroses andplants.com Table of Contents

07 Breeding industry ‘manifesto’ refl ects strong visions and daily praxis

15 12 Biancheri Creations 11 Marketability of combines centuries- Orchid lookalike innovation – the old traditions marks the start of power of ideas in with revolutionary the spring horticulture research

16 20 Contemporary How Alexey Pajitnov marketing solutions 18 regained the IP for horticultural Breeding 2.0: from rights to his Tetris® businesses fi eld book to tablet computer game

26 24 PBR topsy-turvy. 22 European patent with How UPOV and its Seeing double… unitary effect and members turn the …you bet Unifi ed Patent Court system upside down

4 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 April 2013 CIOPORA Chronicle

30 33 Belgian discovery Colombia’s PBR 35 rules give Plant system faces Breeders play vital Variety Rights teeth unsolved problems role in supply chain

38 The importance 40 36 of communication Hydrangeas in in breeder-agent- Clearly or just about a PVR squeeze grower relationships distinguishable?

44 FruitBreedomics 42 improves effi ciency A CPVO success story of fruit breeding

48 49 47 France’s accession For Meilland CIOPORA’s AGM: tout to the 1991 Act of IP is The Next Big arrive en France! the UPOV convention Thing for innovation

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 5 CIOPORA Members

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Become a member of CIOPORA enjoys the observer status at the Community Plant Variety Offi ce (CPVO) and the International Union for the Protection of New CIOPORA is an international, non-governmental organisation Varieties of Plants (UPOV). representing the interests of breeders of asexually reproduced Th e Board invites you to join CIOPORA’s global member community. ornamental and fruit varieties worldwide. CIOPORA has currently Th e persons eligible for membership are defi ned in the CIOPORA’s 117 members including individual breeders, breeding companies, IP bylaws. Each member candidacy is subject to approval by the lawyers and royalty administration services. Top priority of CIOPORA CIOPORA Board. is the constant development and enhancement of systems of Intellectual Property Protection for plant innovation, which include Plant Breeders’ More information about membership: www.ciopora.org. Rights, Patents, Plant Patents and Trademarks. CIOPORA acts as a Contact us: [email protected] strong voice of the industry in regard of IP protection. Th e association Tel: +49 (0)40-555-63-702 or Fax: +49 (0)40-555-63-703

6 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 From the President

Breeding industry ‘manifesto’ refl ects strong visions and daily praxis

t is a great pleasure for me to welcome the readers of the CIOPORA Chronicle again. Th is is the fourth edition of the “collection magazine” edited by FloraCulture International B.V. in cooperation with CIOPORA, the International Association of Breeders of Asexually IReproduced Ornamental and Fruit Plants. Th e cooperation between our association and the editors of FloraCulture International has developed through the years, and today we can say that it has reached a satisfactory maturity. Th e magazine is very much appreciated by the fl ower and fruit industry for its high level of contents and its very professional and pleasant editorial layout.

CIOPORA is the reference for the Intellectual Property matters in the fl ower and fruit industry worldwide, while FloraCulture International has positioned itself as the leading magazine of fl oriculture worldwide, reaching more than 20,000 professional readers on fi ve continents. Th is makes the CIOPORA Chronicle a “must-read” for breeders, growers and traders, and every year the topics discussed in the magazine are object of debates and sometimes, polemics between experts.

Th e goal of theCIOPORA Chronicle is to update professional readers worldwide on the hot topics of the Intellectual Property protection in vegetal varieties, as well as with comments and analyses including our own view, but also giving voice to others such as growers associations, scientists and lawyers, who are invited to contribute to our comprehensive vision of the business.

But let me say that this edition of the CIOPORA Chronicle is diff erent from the previous ones. Th e novel character of the issue 2013 begins with the cover of the magazine. As some of the attentive readers among you might have noticed already, with our choice of cover picture we have referenced the theme of the book “Th e Little Prince” by Antoine de Saint- Exupéry. In our eyes the cover picture vividly demonstrates what CIOPORA is all about: the eff ective protection of ideas and innovation, and, above all, the social responsibility that comes with the act of creation and which must be borne in order to stimulate the future development of the industry. Th e widely popular book by de Saint-Exupéry reads: “You become responsible forever for what you’ve tamed.” It is the same in the plant world – by creating new plant varieties, we are forever responsible for the protection of the results of this human activity. A further quote from the book which we picked as the headline for the Chronicle’s cover is “What is essential is invisible to the eyes”. In our view this phrase precisely refl ects the nature of true innovation. As the main strength of great ideas and innovative products often resides in their simplicity, the time and the tremendous eff ort invested in their development can be so easily overseen by the end customer.

Furthermore, the content of this year’s issue is indeed innovative. In the previous three editions we have off ered our readers a high level of information and analysis on IP in fl owers and fruit. However, I believe that we have really touched THE real core topic of our industry this time, the subject that is of the highest pertinence and the deepest importance for the future of the fl ower and fruit business. >>>

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 7 ICT specialists in Seed Business

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How to really and eff ectively protect TRUE INNOVATION in the vegetal world? Th is is the hot topic today, the main question that the breeding industry and, consequently, also the other segments of the supply chain ask themselves and the legislative authorities. As I always emphasise, there cannot be any economic development without innovation, and there cannot be any innovation without a solid and eff ective Intellectual Property system. Th is is true for all businesses and industries, but it is especially true for highly creative and trend sensitive markets such as art, fashion, design, fl ower and fruit breeding and production.

Now, the plant industry is divided between those who believe that the plant varieties protection through the UPOV system is eff ective and suffi ciently covers the rights of the breeder and those (not only breeders!) who realise that the principles of the UPOV Convention discussed and approved more than 20 years ago are not satisfactory anymore because the new methodologies and techniques in genetic improvement produce results that need diff erent and more sophisticated tools for their eff ective protection. Th erefore, concepts and provisions relating to matters such as the actual scope of protection, the Essentially Derived Varieties, the Breeders' Exemption and the assessment of distinctness itself, probably need to be addressed again to react to the needs of the industry that is becoming more competitive, more advanced in technology and science, more sophisticated in product development and marketing strategies and more demanding in terms of investment and expected return.

Once more, I am pleased by the extremely high level of the contributions to this magazine, which has become a true 'manifesto' of the breeding industry, written by some of our member breeders, by our experts and by renowned authorities of the world of Intellectual Property. Th e original concept is to demonstrate all or at least various links in the production chain: the supply chain mechanism in horticulture, the marketability of innovation (breeder-grower relation and what is in between), innovative products marketed via innovative marketing and communication channels (what are the expectations of consumers?), as well as new IT solutions for breeding. Th e focus is also on the fruit industry, overviewing the present and future developments in fruit breeding in the EU.

And, last but not least, CIOPORA’s Secretary General again develops his advanced and sometimes provocative vision on the above mentioned topic of PROTECTION OF TRUE INNOVATION. His impressive article, though written on a sunny Sunday, explicitly puts under pressure some common opinions about the eff ectiveness of Plant Breeders’ Rights in the actual world, demonstrating an objective and rational approach the huge loopholes that presently exist in the UPOV system and that make many of the basic concepts of Breeders’ Rights very weak, unclear and sometimes useless for the industry.

If we look back to the TRIPS agreement, we should once again remember that the Intellectual Property protection tools (laws) in the contemporary trade system must be “eff ective”. For plant varieties this can be provided in form of an eff ective sui generis system. For many years already CIOPORA has been stressing that this is not the case anymore, because even the youngest UPOV Convention of 1991 is rather old and unclear in many of its fundamental parts. Th e discussion is open. Your opinions are welcome. And there is no better platform for the exchange of ideas and research fi ndings thanCIOPORA ’s Annual General Meeting, which this year is set to take place in Angers, France from April 22 to 25.

I am proud to say that we are a reference for the breeders’ community all over the world, and that this Chronicle is becoming a forum for discussions that cannot be ignored by the industry, and that in ten years from now, we will proudly read it in order to confi rm the achievements that we have reached for the benefi t of the companies we are honoured to represent.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 9 www.fides.nl

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The Selecta breeding team once again managed Orchid lookalike marks to develop a ground-breaking innovation: they the start of the spring created a genetic mixture from the he new exciting Calynopsis® original Calceolaria beauty for balconies and species and a wild gardens has almost nothing form and thus gave Tin common with its ancestor, the birth to their new slipperwort. Its long stems and Calceolaria line globular fl owers remind us of an Calynopsis®. orchid and this was the inspiration for naming the newly developed plant Calynopsis®. From February until late summer, the Calynopsis® varieties continue to produce masses of colourful and spectacular fl owers and join other market dominating crops like Viola and Primula. Upmarket product Being easy to cultivate and fl owering continuously, the new varieties are perfect for producers and consumers alike. Despite of its delicate look, Calynopsis® are extremely weather-resistant and can even sur- vive sub-zero temperatures. Th erefore it is not surprising that retailers and garden centres are keen on this breakthrough novelty. By selling Calynopsis® they can set themselves apart from their competitors and off er their client a product with a completely new style. Whether being produced in small pots for mixed containers or in big pots to be sold as solitary plants, Calynop- sis® takes a position as an upmarket product – a new garden orchid! Among the vegetatively propa- Calynopsis® is an ideal patio plant. gated ornamentals there is no other product on the market that can be compared to Calynopsis®. by the professional horticultural chosen by a big European retailer magazine TASPO. chain as a core product for the TASPO Award After having received the prize in spring season 2013. Th e product No wonder that the media, as well 2010 for breeding the fi rst double can rightly be called a real breeding as experts of the green sector have fl owering Osteospermum on the breakthrough. Th ere is no doubt been showing their appreciation market, Selecta managed to take that Selecta Klemm is doing of this innovation. Consequently, home the award in this category everything in its power to protect Calynopsis® was awarded the for the second time already. Th is is its Intellectual Property Rights on coveted TASPO Award for the defi nitely a reason for Selecta to be this ground-breaking innovation Best Breeding Novelty of the Year proud! and the varieties belonging to the in Berlin in November 2012. In Calynopsis® line will of course be Germany, the TASPO Awards are Protection protected by Plant Breeders’ Rights. the so-called “Oscars” of the green Calynopsis® will be showcased in a In addition to this, the name sector and are awarded every year high-quality consumer magazine Calynopsis® had also been registered in more than 20 diff erent categories this spring and has also been as a Community Trade Mark. |||

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 11 Marketing

Most people believe that breeding and product development in Marketability of horticulture is all about dabbing pollen, emasculating innovation - the power flowers and ruthlessly rogueing fields and fields of seedlings. To be of ideas in horticulture sure, these are all facets and integral nnovation is something that parts of the breeding takes place deep in the convolu- process-but do not tions of our grey matter - sparks necessarily make for Iand flashes of creativity in our true innovation. minds, ideas and visions that stretch the boundaries of what is generally accepted as common knowledge, as standard assortment. These are the ideas that can truly transform the industry.

Competitive pressure When growers are actually willing to embrace innovation, adapt their cultural practices Most professional breeding and accommodate for the needs of a totally new crop, this can give them the vital differ- companies concentrate on mere entiation they need to be profitable in an otherwise fiercely competitive marketplace. incremental advances and variations on products that sell well, either taking on new challenges. Hence, Passion out of competitive pressure, i.e. they do not exactly make the best That is precisely why true innova- "keeping up with the Joneses" to forum for presenting or sourcing tion is often generated by smaller prevent their successful product new ideas, for true innovation. independent breeders - individuals lines from being perceived as stale with a passion for plants, with a and outdated, or to maintain Leave your comfort zone vision for creating something new, relevance in the marketplace. True innovation only occurs if you different, better - people with ideas Professional breeding companies are willing to leave your comfort that have the potential to truly are rarely a suitable petri dish for zone and hence challenge the com- transform. In many cases, their true innovation. All too often, fort zones of your clients and that of "crazy" ideas actually result in such enterprises see breeding and the industry as a whole. Break- the creation of something totally product development in terms of throughs in breeding or product new, something hitherto unheard input versus output. But this model development are rarely welcomed of. A fitting analogy would be to can only work for commodity mass by our industry in the first instance. compare this process with the IT crops, where the outcome (i.e. sales Instead, they are usually met with industry. Quite often, the small of seeds, cuttings or young plants) is scepticism and opposition from start-up companies are the ones calculable. the growers. Every time a major in- that generate all the innovation and novation occurs in the floriculture technological breakthroughs - and A conservative bunch industry, a flurry of protests, scorn are subsequently bought up by the by Garry Grueber Given the fact that their immedi- and resistance invariably ensues. Microsofts and Apples of this world. ate clients are growers, profes- All too often, interesting products sional breeding companies all too are rejected by the industry because Quite a gamble often breed with only the growers' they don't "fit the mould" meaning Innovation is not born of fear. Inno- interests in mind: yield, habit, uni- they don't fall within the cultural vation cannot be fuelled by the pros- formity, cultivation time, keeping techniques and regimes commonly pect of financial advantage alone. qualities under transport condi- applied in commercial horticulture. The outcome of a truly innovative tions, etc. From a purely commer- When growers are actually willing approach to new products is usually cial standpoint, this strategy makes to embrace innovation, adapt their quite uncertain. The stakes are too perfect sense - the breeding compa- cultural practices and accom- high and more often than not actu- nies provide what their customers modate for the needs of a totally ally quite a gamble. Developing truly ask for. However, growers are often new crop, this can give them the different, ground-breaking plant quite a conservative bunch, rarely vital differentiation they need to be products requires a certain degree of interested in changing the crops profitable in an otherwise fiercely altruism and idealism, and can only they are comfortable growing, or in competitive marketplace. thrive in an environment that is con-

12 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 and economically? Will it present itself well at retail? Can it be shipped successfully? And, most importantly: Will it work for the consumer? Challenge Many truly innovative products that have real benefi ts for the consumer do not readily reveal their positive traits at retail. Indeed, many products with exceptional vigour and enhanced consumer performance often pale in comparison with fl ashier, yet inferior product lines on the retail bench. Such products require a great deal of communication, specifi c POP material and extensive PR campaigns on consumer level to convey the benefi ts to the consumer. Th is is a true challenge, since such communication requires a great deal of resources and a professional marketing strategy to eff ectively bring the message across. Some of the biggest brands in horticulture owe their success to precisely this combination of exceptional, innovative genetics with a well-executed and comprehensive marketing campaign to drive the message to a broad audience of growers, retailers and consumers. ducive and supportive of creativity strategies that would normally be Some of the and out-of-the-box thinking. scoff ed at as "impossible". Our biggest brands Holistic approach in horticulture categorization of plant genera and owe their Ideas really do have the power to Creative individuals species has until now been based success to transform the industry and truly Having worked in product develop- on morphological characteristics precisely this change the marketplace but they ment and breeding for over three only. With the advance of DNA combination require perseverance, tenacity, of exceptional, decades, I have seen time and time technology, we are beginning to innovative resources and the right platform again how products that almost realize that many of the plants we genetics for successful implementation. But everyone thought had no commer- have arbitrarily lumped together with a well- sadly, a new variety, a new concept cial value whatsoever became huge in one genus are in fact far less executed and on its own will not get very far. comprehen- crops in the fl oriculture industry related than they are with species of sive marketing Moreover, a holistic approach that thanks to the vision and ideas of other genera. Once we realize that campaign to takes all aspects of commercialization creative individuals. Drab roadside interspecifi c and indeed intergeneric drive the mes- into consideration is needed. Most species that one would normally crosses are not out of the realm of sage to a broad importantly, industry leaders have to audience tread upon without sparing a possibility, bright new horizons for of growers, be willing to embrace and eff ectively second thought in their natural plant breeders present themselves, retailers and transport the innovation into the habitat, will often develop their true along with the potential for myriads consumers. marketplace. Th e power is yours. ||| potential in the breeder's skilled of previously unthinkable and and patient hands, and can fl ourish exciting new plant products for the if the right niche and application is future. found for it in the marketplace. In Th at said, breeders can only many cases, well-known products be commercially successful if About the author can be re-vitalized and re-vamped if their innovations are indeed presented in a diff erent manner or accepted and embraced by the Garry Grueber has been involved in product development for over three for a diff erent use. marketplace. Hence, breeders decades. He has worked closely with many breeders from around the and product developers always world, and has been involved in the successful introduction of many new Audacity have to ask themselves: Will this product lines, varieties and marketing concepts over the years. He is now A breeder has to have the audacity product work for the grower? a managing partner in Cultivaris North America LLC, an idea- and project- to try crosses and breeding Can it be propagated effi ciently management company based in San Diego, CA. (www.cultivaris.com)

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 13 Specialized in United States Plant Patents

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Biancheri ® Creations® is an Italian breeding Biancheri Creations combines company, specialised in the breeding, centuries-old traditions with production, and marketing of Ranunculus and Anemone. revolutionary research

he company’s research has outside of Italy, and the interna- Th rough an accurate work of allowed the increase and tional appreciation for Ranunculus genetic improvement, Biancheri improvement of the range is defi nitely increasing every year. Creations® is now happy to off er Tof varieties currently traded on the a new fl ower with elegant round- market. Th e constant modernising Breeding and research shaped blooms (the “pon pon” of the production structures and Breeding and research are of course shape), an exciting and innovative the meticulous sanitary control the key for the success of Biancheri look that combines the sophisticat- have produced fl ower varieties of Creations® varieties. ed elegance of a multicoloured petal the highest quality, ready to be In order to meet the high standards (which always includes a green part, marketed all over the world. set by the global market, a research combined with all other colours in team constantly works on the im- diff erent varieties) with the strength Family business provement of the existing varieties of a green leaf, and a strong stem. Th e Biancheri family developed and the creation of new ones. Th e Pon-Pon®, propagated ex- their business in Italy during the Th is is how the company’s experi- clusively in vitro, maintains the late 1800s back in the days when mental policy was born. It required well-known essential qualities of the the western area of the Ligurian important investments and allowed Success® varieties (the distinctness, coast (Ponente Ligure), around to launch the production of vitro uniformity and stability obtained the town of Sanremo, came to be lines. Ultimately, the company set through in vitro propagation, which known as the “Riviera of Flowers”. up the nuclear stock greenhouse to represent and outstanding improve- Antonio Biancheri, who at the time control and maintain the health of ment compared to the seed lines) of used to export rose petals across the cloned varieties, in addition to which it is a creative evolution. For the Alps for the production of per- the permanent research and devel- its unique aesthetics, Th e Pon-Pon® fumes, started importing Anemone opment laboratory that performs on ranunculus is already a great success bulbs from France and selling them the required virologic controls and in the main European markets and on the Ligurian market. in vitro breeding. is constantly sold-out. In 1982, as the Ranunculus, a spe- In order to effi ciently show As a sign of gratitude to Mother cies similar to Anemones in terms the uniqueness of its products, Nature for this unbelievable gift, of growing cycle and method of Biancheri Creations® has created a Biancheri Creations® has decided to cultivation, affi rmed its position showcase greenhouse. It is a fully- dedicate this line of varieties to the on the market, Alberto Biancheri fl edged fl ower atelier, allowing children of the Istituto Pediatrico decided to set up Biancheri Crea- visitors to observe all the varieties Giannina Gaslini in Genoa, which tions®. Th is is a company that com- throughout their production cycle. will receive a share of the income. bines experience-based traditions Th e atelier greenhouses are located Th e Pon-Pon® ranunculus is for sure with revolutionary research. on the premises of Biancheri Crea- a good example of ground-breaking tions® in Camporosso and are open innovation that shows how many International to the public, upon prior reserva- years of high level professional appreciation tion, from November to April. breeding can lead to results that Among Biancheri Creations® represent a defi nite progress in the most sold varieties worldwide are Pon-Pon® collection ornamental value of a new fl ower Ranunculus cut fl ower lines In these greenhouses, Biancheri line, with new traits and features (Elegance®, Success®). Th ey are Creations® now also presents its new that stand out against the rest of the mostly present on the Italian, Pon-Pon® collection. available products. French, Dutch, Israeli, Greek and Th e Pon-Pon® range of Ranunculus Biancheri Creations® believe that South American markets. However, comes from long and professional these kind of innovations deserve in the USA, Japan and Northern research, its target being the selec- specifi c, stronger protection in order Europe also potted Ranunculus are tion of a new fl ower that can be to allow the breeder to recover the also in high demand. off ered to the fi nal consumers in its costs of such a breeding eff ort and Last year, 60% of Biancheri Crea- best shape and at the same time has possibly be motivated to venture tions® productions were marketed an outstanding vase life. further. |||

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 15 Marketing

Innovation is not a one way road: only extremely seldom an act of a Contemporary product creation also generates a new consumer marketing solutions for for it. More often, the success of innovation strongly depends on the horticultural businesses keen perception of needs of an already n our age of the WEB 2.0, new existent customer Internet-based marketing chan- group. nels allow every player on the Imarket to have an ear for their target consumer and not to wonder in the dark. I am the Director of Mar- keting at Bell Nursery (Elkridge, Maryland), and a marketing specialist with more than 15 years’ experience in projects including public relations and social media. I would like to share my expertise on all things old and new in marketing for horticultural businesses. Bell is known for its meticulous attention to detail to make sure Traditional each and every final product reflects the highest standard of quality. communication Not all that long ago businesses consumer, to tell our unique stories, can be informational, instructional, of all types had limited avenues of to be the real thing in a culture that news or announcements – what- communication with consumers. yearns for everything “green”. It is ever you dream up. You can say Advertising and public relations, a place we can educate people on whatever you want, to whatever including media relations, sponsor- the value of our products, and show audience you want to say it to. ships and promotions, were the them how to be successful stewards Pinterest.com took off a couple of two main options. Those with of the plants we nurture with tender years ago as an online wish list and large budgets are the advertisers of pride. scrapbook combined. Pictures are yesterday and today. We know their According to social marketing “pinned” and shared around. Have symbols, sing their scores and buy coach, consultant, and global something new and innovative? their products. keynote speaker for mainstream Share it. Ideas, products, care tips, Public relations is typically less business, Jeff Korhan, in New Me- the sky is the limit. We call this one expensive, and allows companies dia and Small Business Marketing, “picture perfect” for our industry. to tell a story. But still, we were more than 70% of adults are online several messengers away from the using social media. The internet is Content consumer, and like the game of their leading source of information Sounds super easy, right? The telephone, the farther you get from for making buying decisions. Social challenge is content. What are you by Kindal Marin the consumer, the less the message media is your opportunity to influ- going to share that other people resonates. Meanwhile, significant ence those decisions directly. want to share? What is meaningful, monthly public relations retainers Facebook is by far the most interesting, or otherwise irresistible? or project fees are often unafford- popular social networking site in It’s not hard, but it does take time able and offer little, if any return on the world. For several years before and consideration. How much? investment. our nursery revamped its web site, How often? When? What? The Facebook was our primary means same questions apply no matter Social media of online marketing. It’s easy and which social media outlet you’re Enter social media. At this point if it’s free. The hard part is putting up using. you’re not on social media, you’re meaningful content that will attract At Bell, we use photography to already a dinosaur. Get there, fast. and keep people following and share the joy of our plants at every Beyond being the fastest growing interacting with your page. stage - from plugs to the store shelf. communications medium, it is Youtube.com is a service that We are a wholesale grower of the ideal outlet for our industry allows you to upload videos free of annuals and perennials, as well to speak most directly to the charge to the internet. These videos as distributor of trees, shrubs and

16 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 Field production at Bell Nursery. tropicals. We sell exclusively to Th e three divisions – the mid-Atlantic, Home Depot in all or part of seven south-Atlantic and southern Ohio states including Virginia, Maryland Valley. Each distribution center is and Delaware as well as the District served by a centralized or network of Columbia, Philadelphia, and the of fi eld and greenhouse operations Southern Ohio Valley. We pride to provide fresh, locally grown ourselves on full, locally grown quality plants. Th is system ensures plants packed with just-cracked most of our plants travel fewer than color at retail. We have more than 200 miles, all within 24 hours, 220 production acres, including from the greenhouse to Th e Home 75 acres of greenhouse space and Depot. 35 Network Growers. Th is network Once our plants arrive at Th e model allowed us to successfully Home Depot it is displayed and expand our production capabili- cared for by a team of more than ties, with limited capital risk, and 300 full time and 1000 seasonal off ered families on Maryland’s merchandising employees. Th is Once ready for shipping, Bell product generally travels fewer than 100 miles. eastern shore an additional revenue team is in Th e Home Depot stores source for their farm property. we serve 7 days a week, most days more as we fi nd positive returns kind of service online that we ask a year, caring for the product, and on both our Web site and Face- our merchandising team to pro- From the greenhouse helping customers make informed book eff orts. We have additional vide in the stores. Helping cus- to The Home Depot plant selections, giving them the opportunities to expand our tomers pick the right plant and Once ready for retail, Bell plants best chance for success when they library of video off erings and to care for it the right way so they generally travel fewer than 100 get their purchases home. become a destination location for are successful keeps them com- miles (often as few as just 15!) to plant pictures on Pinterest. ing back to Bell-served Home one of our four regional distri- Direct online Th e direct online communica- Depots. We want to cultivate bution centers in Maryland, communication tion we receive from our employ- the next generation of gardeners, Delaware, Virginia and Ohio. From Over the past year, we have invested ees, Home Depot partners and and online media gives us an op- the distribution center, plants are in our traditional public relations, consumers allows us to better portunity our industry has never delivered to one of the nearly 200 Web presence and social media. serve or customer community by had before. It’s knocking, open Home Depot stores Bell services in Th is year, we are investing even providing them with the same the door! |||

About the author

Kindal Marin currently oversees marketing efforts on behalf of Bell Nursery. She brings more than 15 years marketing experience to projects including public relations, social media and web site development. Kindal previously served as district manager for Bell Nursery where she oversaw visual merchandising at eight Home Depot stores in Northern Virginia. She began with the company in 2007 as a part- time merchandiser. Prior to joining Bell, Kindal was a public relations consultant for companies including Chipotle Mexican Grill, San Diego Natural History Museum, Deepak Chopra and the Gemological Institute of America. She began her career in public relations with The Gable Group, and previously wrote news stories for the San Diego Community Newspaper Group. A graduate of California State University, San Marcos, At Bell, we use photography (printed pots) with a degree in history, Kindal currently resides in Annapolis, Md. Kindal to share the joy of our plants at every stage. Marin is Director of Marketing, Bell Nursery, www.bellnursery.com

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 17 E-Brida

Everyone knows that paper field books are outdated. Smartphones and tablet computers Breeding 2.0: from are appearing everywhere. Anno 2013 you use a tablet or a field book to tablet smartphone with a direct access to s the processes within breed- breeding database using a tablet Tools help accelerate a sophisticated ing companies become more or a smartphone. They want to see variety introduction database. This sophisticated and complex, the pedigree trees and the pictures Modern breeding databases have brings all relevant itA is vital for breeding businesses not of the breeding material and, powerful analysis options. These information in only to remain up-to-date on the while still in a greenhouse or out options provide breeders with an hand and saves latest developments in breeding, in a field, to be able to update the extra pair of eyes. Every breeder a great deal of but also to develop high perfor- information and add actual obser- will recognize his/her top variety time by providing mance knowledge sharing processes vations, crossings, selections and immediately, but these top varieties new opportunities for their companies. images. This saves a considerable are rare. These are the sub-toppers in breeding and amount of time and offers breeders which present a real challenge: process analysis. Wealth of opportunities the option of making decisions on good parents with strong genes. These days, breeders record more the spot. They cannot always be spotted and more information about immediately. Modern breeding their breeding processes: in the Improving the databases can help find these greenhouse, in the field, but also analysing process toppers. By using comprehensive in the laboratory. Additionally, To simplify the breeder's work, even selection mechanisms breeders can the recorded information must be behind the desk, a sophisticated accelerate the process of introduc- available at a glance: information database for breeding can be very ing new cultivated varieties. about which parents have been helpful. Such a database system crossed and about the selections should include the pedigree tree Securing breeding made. Furthermore, pictures are and pictures of the breeding mate- knowledge becoming increasingly important. rial. With the help of the database, Breeders have a wealth of A vast quantity of information and breeders can make powerful selec- knowledge, but this is often a desire to have this information tions and process data in graphs only stored in their heads. at hand, whatever the location, or present it in their reports. Some Documenting this knowledge presents a challenge to modern database programs offer an exten- means it can be shared within breeders. sive consolidation mechanism to their breeding companies. Luckily, the new digital age convert multiple observations into A consistent and continuous presents a wealth of opportunities. a single figure for a genotype. collection and recording of the By using modern tablet computers and smartphones, breeders are no longer tied to their desks. Wherever they are, they can record information directly in digital format, easily share it with colleagues and look things up in by Berno van der Geest their own information system. This article sketches some of new options the digital age presents to the benefit of the breeders. Saving time in the working process Breeders spend a lot of time in a field or in a greenhouse. Some even consider time spent at the desk as a waste of time. In our modern digital era with the omnipresence of the Internet, breeders also appreciate the convenience of being able to look something up in their E-Brida tablet.

18 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 E-Brida fi eldbook. relevant information not only more than 15 years’ experience interactively. Furthermore, we have benefi ts the breeders working in in the sector. considerably automated the software a fi eld or in a greenhouse, it also In addition to E-Brida, Agri Infor- testing. Our development process provides management with a deep mation Partners off ers customised provides the latest version of the insights into the breeding activities software. “Our strength is that we software every evening”, says Van and assists with scheduling of speak the breeder's language. der Geest smiling. “It's a shame we the various steps of the breeding We know the breeding process cannot get breeders right on this process. Th e ICT techniques down to the last detail. Th is process.” ||| remove barriers for using such means we can develop software databases in organisations with that refl ects exactly the working multiple locations, whether limited procedures and information needs to one country or with breeding of breeders”, according to Berno What Plant and centres located around the world. van der Geest, one of the founders of Agri Information Partners. Breeding database: Food Research NZ E-Brida New functionalities E-Brida is an example of sophis- What is Agri Information Partners’ say about E-Brida ticated database system designed secret? “Our strong suit lies in our “E-Brida can successfully handle the breeding programme specifi cally for breeders. E-Brida is collaboration with the customer”, data and the complexities of the breeding structures” says currently implemented in almost says Van der Geest. He adds, “We Peter Alspach of Plant and Food Research, New Zealand. 40 companies from the EU, New are continuously working on the “We are already benefi ting considerably generating accurate Zealand and the US and is used by further development of our soft- consistent pedigree information, capturing consistent fi eld more than 100 breeders. Besides the ware and our customers are fully in- book information, creating reports for clients and removing the ornamental plant breeders, in recent volved in this process. Th is benefi ts need for extensive wrangling prior to analysis. The excellent years vegetable breeders have also our customers and our product.” support for E-Brida provided by its parent company has been implemented the software package. For development of the software crucial to the success of the project.” Th e driving force behind E-Brida is Agri Information Partners uses Agri Information Partners based in the state-of-the-art methods and Wageningen, the Netherlands. Agri development tools. “We use the About the author Information Partners is specialised Scrum framework, and we can in IT solutions for breeders and has deliver functionality quickly and Berno van der Geest is a co-founder of Agri Information Partners.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 19 Profile

Ciopora Chronicle sat down with Mr Alexey Pajitnov, How Alexey Pajitnov the inventor of the charmingly simple and utterly addictive computer regained the IP rights to game Tetris. his Tetris® computer game lexey Pajitnov, a Russian scientist, created the Tetris game on June 6, 1984, andA in its almost 30 year history, hundreds of millions of players worldwide have experienced Tetris. Now, Tetris branded games are played online and on mobile phones all over the world, over one billion times per month. Loved globally by people of all ages and all cultures, Tetris continues to be one of the most widely recognised and endearing video game fran- chises of all time.

Mr Pajitnov, since the moment Tetris Blitz of its creation in June of 1984, published Tetris has conquered the world by Elec- with a previously unseen speed tronic Arts is a new and range. Hundreds of millions variant on of Tetris branded products have the TETRIS been sold since. Tetris is largely game. It recognised as the forerunner of will be released the casual game industry. worldwide What is the unique quality that for iOS and made Tetris so successful? Android “Tetris is unique because it is a in Spring 2013. very simple game that offers both a visual and intellectual challenge for the player. People also seem to appreciate its peaceful, non- the game in the beginning. We had not to think about it too much.” by Anna Kaehne (with the distractive style.” an arrangement but eventually the kind assistance of Danny rights all came back to me.” Who released the first PC Han, Blue Planet Software) The notion of Intellectual version of the game in 1985? Property was quite unfamiliar to How did the acquisition of IP Was there a license agreement the citizens of the Soviet Union rights on Tetris go, back in 1988? in force? as everyone used to work for “I had a formal arrangement with “Technically, I released the first PC state institutions back then. the Computer Center in the 80s version after it was ported to IBM. Was it self-evident to you that that granted them the right to Basically, it was distributed to my the Institution you worked for exploit Tetris around the world for friends and colleagues on floppy had the rights on the game? ten years. But, the rights came back disks. Before I knew it, the game “Intellectual property existed back to me later on.” had spread all over the place.” then, but the concept was unfamiliar to people in the Soviet Union. Were you actively involved When did you realise that the For example, I think music and in signing the rights off to the game was a global success? paintings and some other creations Computer Center? “In 1989, at our first appearance were recognized as IP. With Tetris, “I was somewhat involved but that at an industry trade show, our PC the Computer Center* exploited was such a long time ago. I prefer publisher brought us about 10 or

20 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 12 awards for the game. Later, in How are the Tetris guidelines 1990 Nintendo decided to bundle enforced? the game with their new hardware “Th e guidelines are enforced by our – the Game Boy. Th ese were cer- quality assurance (QA) team. Each tainly indications of the potential TETRIS game must be submitted global success of Tetris.” and approved by our QA testers before the game is released to the public. How did you feel about your invention while not having the Thanks to your inventiveness IP rights on Tetris during its fi rst and the re-acquisition of your IP popularity wave in the late 80s rights you were able to benefi t and early 90s? from your invention. What would “I’m proud to have created a fun be your advice to inventors all game that makes people happy. It over the world who are hesitant was unfortunate that I didn’t really about the legal procedures to receive royalties in the early days register the products of their when the Computer Center was creativity? involved. However, that changed “Anyone who creates an IP should when the rights were returned to me.” register their work if they are able to do so. Registering your IP provides When the rights of the game many advantages to help IP owners returned to you from the on the App Store. We claimed that Tetris inventor enforce their intellectual property Computer Center, did you have their game infringed the TETRIS Alexey Pajitnov. rights against third parties who a clear-cut plan about how to copyright and trade dress and a attempt to unfairly benefi t from market? federal judge agreed with us. She another’s original creation.” “Th e rights were returned to me in ruled that the visual expression of the mid-90s. With the help of my TETRIS is protected by copyright Mr Pajitnov, thank you very much friend, Henk Rogers, we formed and trade dress and that the for sharing your success story with Th e Tetris Company (TTC), to defendant infringed on both. It was us. CIOPORA wishes you and Th e serve as the exclusive source of all a huge victory not only for us but Tetris Company a lot of success and TETRIS licenses. We continued for all game designers because the the CIOPORA team and its mem- to license TETRIS to some of the court offi cially validated that the bers are looking forward to seeing biggest video game companies like visual appearance of video games is new versions of the game appearing Nintendo.” subject to IP protection.” in the future, rewarding you and your colleagues for your invention, What is the situation regarding Do you have to deal with many which brought so many hours legal rights on the game at the infringement cases? What is fi lled with (often infuriating) joy moment? Who owns the IP rights the procedure for fi ghting the to people all over the world. ||| on the game and how and where infringers? are they registered? “Like all IP owners, we deal with “Henk and I own the TETRIS IP many infringements every year. * Th e Computer Center of the through a company called Tetris Generally, we send take down USSR Academy of Sciences. Holding. Among other things, we letters to the developer or ISP and have numerous copyright registra- have them remove the infringing tions in the U.S. and the TETRIS content.” trademark is registered around the world.” Tell us more about the Tetris guidelines, by whom were they In your opinion, does the current developed and why? system of IP rights in the US and “We created the Tetris Design worldwide provide a suffi cient Guideline because we wanted to About the author protection for your rights on make sure that our licensees un- Tetris and for other developers in derstood what a TETRIS branded Anna Kaehne has been working at CIOPORA Offi ce for almost two the gaming industry? game is supposed to look like so years. At the offi ce she is responsible for association’s internal “As a game designer, I am pleased that they can create a TETRIS game and external communications including the relations with press, with the current system in the that has the same unifi ed look and production of media and marketing materials offl ine as well as U.S. We recently won a major feel. Th is is important because online. She is the person behind the association’s newsletter, press- infringement lawsuit against a we want our customers to buy a releases, website and other communication projects. Anna holds a company called Xio Interactive TETRIS product and always know Magister Degree in English and Slavic Studies from the University of who had released a TETRIS clone what they are going to get.” Magdeburg. In her homeland - Ukraine - she studied International Law.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 21 Opinion

We once thought the PVR/PBR system provided breeders with a means Seeing double...... you bet to protect their ark Jury is a breeder from Intellectual Property New Zealand with a Rights (IPR), but now long history of commer- we are not so sure. Mcial plant releases spanning many genera from New Zealand. And yes, we have to declare here that we are their agents for introducing these exclusive plants to different parts of the world. He has developed a breakthrough with Cordyline something “distinctively different” from all other selections. This was not your normal ‘cabbage tree’ type, but a remarkable new basal branching plant that had a completely different form compared to existing varieties, and was a stun- ning new garden plant. Structured breeding programme It was clear from the start that Cordyline Here’s some background in Mark ‘Red Fountain’ was completely different Jury’s own words. “Cordyline ‘Red from any other Cordyline. Fountain’ (also known as ‘Festival Burgundy’ in the Northern Hemi- me the seed from his Cordyline to ‘Red Fountain’ with its unique sphere) was no chance seedling crosses and I have subsequently basal branching habit. We have or lucky break. It was part of a continued breeding Cordylines. plants of his in the nursery here structured breeding programme ‘Red Fountain’ remains a one-off and have yet to meet anyone who which spanned decades and three amongst the thousands I have can tell it apart from our variety. different genera in search of a good raised. To protect our interests we It looks identical and it performs red clumping plant with long, spear applied for and received the Plant identically. Roma 06 looked like a shaped foliage. Variety Rights in New Zealand and generic copy and an attempt to cash My late father, Felix Jury, started the Plant Breeder’s Rights and pat- in on an established international with New Zealand Phormiums. ents in various overseas countries.” market created by ‘Red Fountain’.” However, there were issues with the Because it was such a different look- foliage in our humid climate. In ing plant, there was a great deal of Minor variation a combined breeding and trialing interest internationally. “Yes it was In the official PVR comparison effort done over 20 years, my father “distinctively different”. However, trials, it was difficult to tell the and I worked together on Astelias be- its uniqueness also required new varieties apart because the plants fore we decided that no matter how marketing approaches because it look so much alike. “There were good the plants were, they lacked the did not slip readily into any existing some discussions with the NZ PVR vigour and reliability to make them a plant grouping that plant buyers office about extending the trial by Anthony Tesselaar commercial success. Working to see knew. It was proving a commercial period beyond 2 years. In the end, if he could get a similar plant from success,” Mark said. the examiner took 8 sample leaves native Cordylines was new territory.” from the two varieties in question Mark continued, “This was achieved Generic copy and reported that the petiole length over time using a complex mix of dif- Now this is where the story gets was nominally different between ferent species: C. banksii x pumilio x interesting. In 2010, New Zealand the 2 varieties. We were stunned australis with the mother plant being nurseryman, Malcolm Woolmore / when the PVR office then granted compact and a deep red form of Kiwi Flora, applied for Plant Variety Roma 06 protection, based on this banksii hybrid. Rights here in NZ and PBR inter- minor variation in averaged petiole nationally on Cordyline ‘Roma 06’. length alone, which is insignificant Distinctively different “We were confident that the integri- to the appearance of the plant and It was clear from the start that ty of the PVR system would protect invisible to most professionals and, Cordyline ‘Red Fountain’ was our intellectual property,“ recalled we believe, to the marketplace. And completely different from any other Mark. He added, “After all, his that these rights were granted based Cordyline. Mark: “My father gave Cordyline didn’t look any different on the measurement of a mere eight

22 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 two cases where both plants look visually identical, yet both have been granted rights. Going forward, the industry has to have rules whereby a plant is given a PVR/PBR because it is “Distinctively Diff erent” with an agreed minimal diff erence between key (not minor) characteristics, otherwise one has to seriously question the benefi t of applying for PVR/PBR at all if the examination process is about fi nding nominal diff erences between plants as op- posed to protecting breeders’ existing Intellectual property rights.

In the recent Exotic Plants vs De Roose Plants in Belgium, the judge ruled in favour of the initial PVR rights holder as he said both plants morphologically looked the same and fi ned the breeders of the copy type variety. Th is is most unfortunately a bad refl ection on the examination process and the PVR/PBR system leaves selected from each variety.” we will review other PVRs that we Left to right, where the granting of protection to When the examiner documented hold, given that we are appar- Justin Cartmel copy varieties displaying minimal from the this, he admitted that it was not ently paying only for a marketing Tesselaar offi ce diff erence of a minor characteristic possible to tell the varieties apart tool and not for protection of our and Grant Eyres negates the value of the protection when the leaves were mixed. “It intellectual property or a consist- from Growing these rights are supposed to enforce seemed beyond belief that this ent and transparent examination Spectrum nursery in the fi rst instance. in New Zealand decision could be based on a mere process. It may aff ect our decision where the offi cial Clearer guidelines are needed eight leaves of each variety and - to release new plants on the local PVR trials were on what key characteristics are when mixed together - could not be market in the future if we think held. considered a minimum dimension separated visually by the examiners. that a commercial competitor with that qualifi es for diff erentiation Even before the original decision the backing of the New Zealand and greater accountability and was announced, we requested a Plant Variety Rights Offi ce may be transparency for the examiners and randomised blind test. Our request, able to raise a near identical copy respective offi ces when granting or repeated on several occasions and claim that it as unique. As a refusing rights. throughout the whole assessment professional plant breeder, with We are now seeing an increase in and appeals process, was ignored. decades of experience and an ex- breeders who no longer wish to take We were equally shocked when the tensive breeding programme that is out any PVR/PBR rights because of appeal was carried out by the same entirely self-funded, I feel betrayed these issues and lack of protection. examiner who made the origi- at the failure of the system, which Th ey are of the opinion that the nal decision. Sadly, we were not off ers no protection and is ready to current system only wants to make surprised when he decided to affi rm award equal rights to a commercial money for on-going applications his original decision. Th at decision competitor, taking advantage of the but does not support innovations appears to be entirely the making of work done by my father, by myself and the rights of the license holders. one individual, who is ignoring all and by our international agents”. Let’s hope that this direction can be objections and bypassing any expert changed before it is too late. ||| advice,” outlined Mark. Recognisable rights From my own viewpoint. If PVR/ Where to go from here? PBR protection is to grant (recog- About the author When asked where to go from here, nisable) rights, it must therefore en- Mark said, “Th e result is that we no sure that, if there is an infringement Anthony Tesselaar hails from Anthony Tesselaar International, longer have any confi dence in the and the case has to go to judicial an international project management company dealing in plants, integrity or value of plant breeders’ court, the plant diff erences must be horticultural research & development and strategic water management. rights in New Zealand. Over time easily identifi ed. We have now had www.tesselaar.com [email protected]

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 23 Patents

After 40 years of attempts, the European countries have succeeded in European patent with creating a patent system providing unitary protection on their territory unitary effect and and in setting up a simplified regime for the enforcement of patents. While Unified Patent Court unitary protection had been achieved his goal has now been Uniform protection translation costs as the patent for other Intellectual achieved with a “patent The unitary patent will provide granted in the language of the Property rights, in package” comprising: uniform protection on the EPO will not need to be translated. particular the CPVR T• two regulations dated 17 territories of all the participating Only during a transitional period and Community December 2012, implementing member states. This protection would the unitary patent have to be trademark, such enhanced cooperation in the area (i.e. the exclusive rights conferred translated, into English (if granted protection regarding of the creation of unitary patent and the exceptions) is set by the in French or German), or into patents had failed protection; law of the member state in which another language of the Union (if until now. • the agreement on a Unified the applicant had his residence or granted in English). Patent Court. principal place of business on the The two regulations entered into date of filing of the application or, force on 20th January 2013, but European patent with if this condition is not satisfied, by they will become valid on 1st unitary effect the law of the state where the EPO January 2014, or from the date of On 17 December 2012, the has its headquarters. These national entry into force of the Agreement European Parliament approved laws have not yet been completely on a Unified Patent Court, Regulation (EU) No. 1257/2012 harmonised, but they will be with whichever is the latest. creating European patent with the ratification of the Agreement unitary effect (the “unitary on the Unified Patent Court that Unified Patent Court by Thomas Bouvet patent”) and Regulation (EU) contains provisions on substantive On 19 February 2013, the and Laura Romestant No. 1260/2012 on the applicable law. The limitations provided for in Agreement on a Unified Patent translation arrangements for the agreement include the breeder’s Court (“UPC”) was signed by unitary patents. These regulations exemption (“the rights conferred by 25 EU member states (all states were adopted under the procedure a Unitary patent shall not extend to except Poland and Spain). The aim of enhanced cooperation between (…) the use of biological material of this agreement is to establish 25 EU member states (all the states for the purpose of breeding, or a unified patent litigation system except Spain and Italy). discovering and developing other allowing a simplified and less The unitary patent is a European plant varieties”) and the farmer’s expensive litigation and to improve patent granted by the EPO under exemption under the conditions of consistency in case-law and the existing provisions of the Article 14 of Regulation (EC) No. therefore legal certainty. It also aims European Patent Convention, to 2100/94. Therefore, the unitary to improve cost-effectiveness for which the patent proprietor decides patent will provide a further option patent proprietors. The purpose is to give the unitary effect on the for patent holders besides the to depart from the existing system territory of the participating states. existing national and European in which patent litigation takes The patentability requirements of patent systems. place at the national level and often the unitary patent are therefore requires parallel proceedings, which those provided for in the EPC, Financial advantage may have contradictory outcomes. which notably contains exclusion The advantage of the unitary The UPC will have exclusive for plant varieties and specific patent will be mainly of financial jurisdiction to decide on patent provisions for biotechnological character, since the unitary disputes for unitary patents, for inventions. In order to give unitary patent conferring protection on ordinary European patents (for effect to the European patent, the the territory of the participating which no unitary effect has been latter must be granted with the member states will cost less than requested) and European patent same set of claims in respect of all requesting European patents in the applications. Decisions of the UPC the participating member states, same states; the exact cost has not will have effect on the territory of and the patent holder must submit been determined yet, but it will the participating member states a request for unitary effect no later probably amount to that of seven in which the European patent than one month after the mention or eight national designations. The provides its effect. of the grant is published. unitary patent will also reduce The UPC will comprise a Court of

24 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 Unitary Patent countries & signatories of the Unifi ed Patent Court Agreement (UPC) Non-participating EU member Signatory of the UPC only Unitary Patent country, but a non-signatory of the Unifi ed Patent Court Agreement (UPC) EPO or other patent convention parties (non-EU)

First Instance composed of: • a central division having its seat in Paris but having sections in London (for patents in the fi elds of chemistry and human necessities) and Munich (for patents relating to engineering technologies); • a local division in any contracting member state wishing to host such division (additional local divisions - maximum 4 - can be created depending on the number of cases handled each year); • possible regional divisions set up by two or more contracting member states willing to pool their resources. Th e UPC will also comprise a Court of Appeal located in Luxembourg. Th e agreement contains detailed rules regarding the jurisdiction of the UPC divisions which can be summarised as follows: • actions for patent revocation (as division will be in the language of main actions) and declaration of the patent and proceedings before non-infringement will be within local divisions will be in the local the jurisdiction of the central language) (ii) the average speed Advertisement division; of the proceedings, (iii) the court • patent infringement actions can structure (divisions will all comprise be initiated upon the claimant’s legally and technically qualifi ed choice: judges but their number will diff er - before the local or regional depending on the divisions), and divisions of the contracting state (iv) the case law and win-rate of the in which the defendant is located divisions. or, if the defendant is not located Th e agreement will enter into in a contracting state, or if that force after it is ratifi ed by at least state has no local or regional 13 participating member states, division, before the central including France, Germany and division; the UK. During the transitional BY - before the local or regional period of seven years after its division of the place of entry into force, national courts infringement or, if the will retain jurisdiction for actions Moerheim New Plant BV | Weteringweg 3a 2155 MV Leimuiderbrug | The Netherlands contracting state does not host regarding European patents. Tel. +31 (0)172 506 700 | Fax +31 (0)172 506 675 such division, before the central During this transitional period, the [email protected] | www.suntorycollection.info division. right holders can opt out from the exclusive jurisdiction of the UPC; Forum shopping unless an action has already been Th e agreement thus allows for brought before a national court, considerable forum shopping as the patent holders are entitled the patent holder will be free to to withdraw their opt-out at any About the authors choose the division before which he moment. wants to initiate the proceedings. Th is “patent package” will probably Thomas Bouvet is an attorney-at-law specialized in patent and plant Such choice will certainly include enter into force in 2014 or 2015. breeder’s rights litigation. He is a partner of Véron & Associés a (i) language considerations It will then be up to the users to French law fi rm whose activity is entirely devoted to patent litigation. (proceedings before the central make it a success. ||| Laura Romestant is a trainee working for the same law fi rm.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 25 Opinion

Today, the UPOV Plant Breeders' Rights system is PBR topsy-turvy - how the most important IP-system for the protection of plant varieties. In order UPOV and its members to be effective, it should be clear and provide for turn the system upside down sufficiently broad protection. A close look at the text of the hat a nice Sunday. The Varieties that the examination of distinctness to UPOV Act of 1991 sun is shining, the lawn are not clearly be more rigorous when evaluating shows the current is mowed, bees buzzing distinguishable from the minimum distances between discrepancies inbetweenW flowers, time to relax, the protected variety varieties for the grant of a title of between a well- time to read the UPOV 1991 Act. Let´s start with varieties that are protection.” written text and not clearly distinguishable from the However, in practice it turns out its insufficient Everything's just super? protected variety. This extension of that the inclusion of Article 14 (5) implementation. If one takes a quick look into the protection is rather new; it has only (ii) does not keep its promises to UPOV 1991 Act, one could come been incorporated into the UPOV better protect existing protected to a pleasant conclusion: the UPOV system in the 1991 Act. varieties against cosmetic breeding: PBR system is straight-forward, In its Green Paper of 2001 CIO- in today´s reality the provision of easy and grants a truly exclusive PORA expressed its appreciation Article 14 (5) (ii) of the UPOV 1991 right. If a variety is not clearly about this extension of protec- Act is devoid of meaning. In today´s distinguishable from a protected tion manifested in Article 14 (5) reality even a very small difference variety, it must not be commercial- (ii) and expressed its hope that between two varieties makes the ised without the authorisation of this Article corrects the existing varieties clearly distinguishable in the title holder. An EDV (Essential- loophole in regard to ‘cosmetic the eyes of the examination officers. ly Derived Variety) of a protected breeding’. As a precondition to the Based on a purely botanical variety must not be commercialised closing of this loophole CIOPORA approach, all characteristics of a either, without the authorisation mentioned: “These new provisions species are considered to be equally of the title holder. Everybody can oblige the authorities in charge of essential, and no differentiation is breed with a protected variety, but if he obtains one of the varieties mentioned before, he is not allowed to commercialise it without the authorisation of the title holder. Everything's just super!? Not entirely. Although it appears that the text of the 1991 Act is well-written, its current practical application leaves wide gaps. According to Article 14 (5) of the UPOV 1991Act the exclusive right by Dr. Edgar Krieger of the title holder to commercialise his protected variety comprises also (i) varieties that are essentially derived from the protected variety, (ii) varieties that are not clearly distinguishable from the protected variety and (iii) varieties whose production requires the repeated use of the protected variety. This requires some deeper analysis. Illustration Néstor by Flores Morales

26 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 made between characteristics that are important or unimportant for the exploitation of a variety. As a consequence, even a diff erence in one irrelevant characteristic can make a variety clearly distinguishable from another variety in the eyes of the examination offi cers. Th is narrowing of the distance between varieties is supported by UPOV, by allowing e.g. random blind tests if doubts exist over the distinctness

of two varieties. Illustration Néstor by Flores Morales Th is pure botanical approach runs contrary to the legal character of Intellectual Property protection and devaluates the requirement of “clearly distinguishable” to a sole measurement of a diff erence in the meaning of Article 1 (vi) of the UPOV 1991 Act (defi nition of variety). As a result, the initial improvement of the UPOV 1991 Act compared to the UPOV 1961 and 1978 Act, aiming at a better control of “varieties that are not clearly distinguishable from the protected variety” has been im- peded by this botanical approach. Th e possibility to search for a diff er- comparison to the Initial Variety, If there is ‘doubt’, ence in a subsequent growing trial, because they are completely derived there is no clarity as it is foreseen in chapter 5.2.3.2.4 from their Initial Variety and all In order to revitalise the protec- of UPOV TGP/9 in my opinion diff erences to the Initial Variety tion against cosmetic breeding, the should be eliminated. Also, the pos- result from the act of derivation. requirement “clearly distinguish- sibility of random “blind” testing However, there are some that want able” should be seen as an evalua- according to chapter 6.4 of UPOV to limit the EDV concept to varie- tive requirement in the future and TGP/9 in case of doubts over the ties, which can be distinguished should not end in a simple search distinctness of a candidate variety from the Initial Variety by a very of a botanical diff erence. Addi- must in my view be eliminated. limited number of characteristics tionally, the requirement “clearly Common sense already says that in (“typically by one”). Such inter- distinguishable” should be assessed case of doubt over distinctness, the pretation limits the EDV concept on characteristics important for candidate variety cannot be con- as far as even possible. Taking into the crop concerned and the test- sidered to be clearly distinguishable consideration that an EDV by defi - guidelines should determine for from the reference variety. ‘Doubt’ nition must be clearly distinguish- each characteristic whether it is and ‘clearly’ just do not fi t together. able from the Initial Variety, which considered “important” for the de- requires at least a diff erence in termination of “clearly distinguish- Essentially one characteristic (even under the able”. Diff erences in unimportant Derived Varieties infi nitesimal minimum distances characteristics should not lead to Although already in place for 20 currently applied by UPOV and the a “clearly distinguishable” variety. years, the EDV concept still causes examination offi ces of its member Th e details should be discussed and disputes and discussions about its countries) under such interpretation agreed upon by breeders. In order meaning and purpose and about its only varieties which have exactly to be “clearly distinguishable”, the scope. Th e main reason is the un- one diff erence compared to their distance between two varieties in clear language of the EDV provision Initial Variety could be considered regard to their important character- and the erroneous entanglement of to be an EDV – a contradictory and istics should be suffi ciently broad. dependency and plagiarism. useless approach. Varieties with the same note in the Mutants and GMO – if clearly In fact, the entanglement of de- UPOV test-guideline for a given distinguishable from the Initial pendency and plagiarism was and characteristic should not be consid- Variety – need to be considered to is a mistake in the conception – or ered to be clearly distinguishable be EDV irrespective of the number interpretation – of the EDV provi- with respect to that characteristic. of phenotypic diff erences in sion. Plagiarism is not a question

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 27 Opinion

of derivation or dependency, but rather a question of Minimum Distance and direct infringement. If a variety in its phenotype is almost identical (not clearly distinguishable) to a protected variety, its commercialisation is a direct infringement, irrespective of whether it is (essentially) derived from the protected variety or not. In vegetatively reproduced orna-

mental and fruit varieties it would Illustration Néstor by Flores Morales be sufficient for the EDV concept to establish dependency for each variety which is derived from one variety only, such as mutants and GMO, irrespective of the degree of the phenotypic similarity between the dependent and the Initial Variety. Such approach would immediately bring clarity into the EDV concept and would allow the breeders to effectively enforce the PBR titles of their Initial Varieties. Groundbreaking innovations and features In regard to a true exclusive right, one more aspect needs to be addressed. In recent years, more and more varieties which contain innovative, unique, groundbreaking features such as double flowering, winter-hardiness or permanent flowering are being bred. In order to develop such groundbreaking varieties, breeders devote a very groundbreaking varieties deserve Breeders´ Rights system, which is significant amount of time and better protection. The question is the tailor-made system for varie- money as well as creativity and not whether we need such protec- ties, it would limit the confusion innovative capacity. However, such tion, but how far we need to go created by mixing two protection varieties are not effectively pro- with the protection and which is systems, and would reduce costs for tected by the current PBR system. the best system to protect them? breeders. First of all, because of the breeders´ Does the huge investment in a exemption, every competitor can groundbreaking variety justify Breed with everything use the groundbreaking variety in that all subsequent varieties, which you want, but be aware his breeding programme and can reproduce the groundbreaking of what you breed obtain a variety which, although feature(s), fall under the scope According to Article 15 (1) (iii) of being clearly distinguishable (even of the original variety, irrespec- the UPOV 1991 Act, the breeder’s under a strict application of the tive of their origin? Or should the right shall not extend to acts done requirements), reproduces the protection only cover varieties that for the purpose of breeding other groundbreaking feature. Addition- reproduce the groundbreaking varieties, and, except where the pro- ally, such groundbreaking feature(s) feature(s) and that are derived from visions of Article 14 (5) apply, acts can be developed independently the original variety? referred to in Article 14 (1) to (4) in from the protected initial variety, One can also think about solving a respect of such other varieties. which in the end has the same part of this issue with Patent protec- The breeders´ exemption as imbed- negative effect for the commercial tion, which is per se designed to ded in the UPOV PBR system since success of the first variety contain- cover traits rather than a genomic its beginning is a unique feature in ing this feature. composition. Both might be possi- IP protection systems. In the 2012 edition of CIOPORA ble, but if such groundbreaking fea- The current breeders´ exemption Chronicle I already wrote that tures could be covered by the Plant consists of two components:

28 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 • Th e free use of protected plant to maintain the “traditional” pos- modifi cation etc.), falls under the material for further breeding is sibility to commercialise varieties scope of a protected variety (not one component resulting from breeding with a pro- only of the variety that has been • Th e limited commercialisation tected variety, while on the other used for breeding the new variety), of the new breeding result is the hand it wanted to further limit the it must not be commercialised other one. breeders´ exemption by prohibiting without the authorisation of Th e free use of protected plant the commercialisation of two more the title holder of the protected material for further breeding is the types of varieties. variety. Th e concept is similar to component of the breeders´ exemp- In order to adapt the PBR system to the “breeders´ exemption” in the tion that has been kept unchanged the current environment in modern new Unitary Patent in the EU or since the beginning of the UPOV breeding and to make it suitable in the Patent law of Germany and system. for the challenges in the future and France. And in fact, this change of What has been changed in the in order to have a systematically the breeders´ exemption does not course of time is the limitation correct structure, the breeders´ bring a major change to the current of the commercialisation of the exemption should be re-structured situation (except for groundbreak- breeding result. In the UPOV 1961 and fi ne-tuned. ing features), because already now Act and 1978 Act (Article 5.3) the For the sake of fostering innovation, EDVs, varieties not clearly distin- breeders´ exemption was limited the free use of protected plant mate- guishable and varieties requiring only when the repeated use of the rial for further breeding should, repeated use, are blocked at least on new variety is necessary for the in my opinion, be kept, provided paper, from commercialisation. commercial production of another that the commercialisation of the variety. In comparison, Article 15 breeding results does not weaken In a nutshell (1) (iii) in combination with Article the exclusive right in the protected It doesn´t require witchcraft to 14 (5) of the UPOV 1991 Act was innovation. Th e change in the strengthen the exclusive right of meant to limit the breeders´ exemp- UPOV system would therefore the title-holder. We can even keep tion to a greater extent - at least relate to the commercialisation part the free use of protected varieties on paper - by prohibiting the free of the breeders exemption. It simply for further breeding in the PBR commercialisation of three groups should be deleted, so that the future system, but we need of varieties: breeders´ exemption would read: • to restore the concept of varieties (i) varieties that are essentially “Th e breeder’s right shall not extend that are not clearly distinguishable derived from the protected to acts done for the purpose of from the protected variety, that variety (where the protected breeding other varieties.” is to say that we need to broaden variety is not itself an essen- Th is means that the commerciali- its meaning by establishing a suf- tially derived variety), sation of any variety, which falls fi ciently broad minimum distance (ii) varieties that are not clearly under the scope of a protected vari- between varieties; distinguishable from the ety, shall require the authorisation • to clarify the EDV concept and protected variety and of the title holder of the protected implement it in a suffi ciently (iii) varieties whose production variety. According to what has been broad way, which allows the requires the repeated use of the said above, such varieties would be: breeder of the Initial Variety to protected variety. control mutations and GMO of • varieties that are not clearly dis- his protected variety; From a systematical point of view tinguishable from the protected • to install a system that protects the reference in Article 15 (1) (iii) variety groundbreaking innovations. to the varieties listed in Article 14 • varieties that are essentially de- So – everything solved – what a (5) (ii) and (iii) is incorrect: Only rived from the protected variety nice Sunday. ||| varieties that are essentially derived • varieties that reproduce the from the protected variety are groundbreaking feature(s) of the necessarily the result of breeding protected variety with the protected variety. Varieties • varieties whose production that are not clearly distinguishable requires the repeated use of the About the author from the protected variety can also protected variety. be developed by using varieties Dr Edgar Krieger has extensive experience in the fi eld of Intellectual other than the protected one and In other words: the future breeders´ Property Protection for plant innovation. He has been executing the varieties whose production requires exemption should only contain the position of Secretary General of CIOPORA since 2004. Previously, Dr the repeated use of the protected va- free use of protected material for Krieger worked as a lawyer at an international law fi rm specialising riety are usually the result of sexual further breeding, but no commer- in IP protection, and particularly in Plant Breeder's Rights, advis- reproduction of plants, but not of cialisation anymore. Consequence: ing agricultural breeders in several hundred court cases up to the breeding work. Th e main reason for If a new variety, which results from European Court of Justice. Dr Krieger has completed his doctoral dis- this systematical error is obviously any kind of breeding (i.e. crossing sertation on the topic "Farmers' Exemption in Germany" at the Philipp that the UPOV on one hand wanted and selection, mutating, genetic University of Marburg.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 29 PVR enforcement

Plant breeders’ rights are not an empty box and should therefore not be treated as one. This article aims at providing a riposte to common misconceptions.

DNA testing (credits: Naktuinbouw). Belgian discovery rules give Plant Variety Rights teeth lant breeders spend vast define or describe. It is furthermore in some jurisdictions be sufficient amounts of money, time felt that, since the only place the evidence to obtain a preliminary and effort in creating new claimant can gather evidence from injunction against the other plant Pvarieties. They then usually spend is his competitor’s highly-secured breeder, based on the presumption almost as much money, time and greenhouses, proving infringement that the genetic similarity is too effort on obtaining plant variety cannot be impossible. With that high to be coincidental. But that right certificates from either the perception in mind, plant breeders is, of course, usually not enough. CPVO or national authorities in have already too often preferred The current plant variety rights different countries around the to adopt the ostrich approach protection system is based on world. Yet they are only rarely seen and bury their heads in the sand, phenotypes, so the claimant has to in court. Admittedly, conducting hoping the infringement comes to have the allegedly infringing plant’s litigation and paying lawyers is not nothing, rather than confronting morphological or physiological their core business, nor should it the alleged infringer. Obviously this characteristics analysed, as only be. But they should not be put off is not what the legislation, that cre- this type of analysis will allow the by Philippe de Jong from going to court by incorrect ated plant variety rights, intended. court to grant a permanent injunc- perceptions. tion. Finally, the claimant needs to Genotype and fenotype obtain information about the origin Ostrich approach In broad terms, if a breeder comes of the plants and the geographical One of the most common of these across plants with characteristics scope of their distribution and sales, incorrect perceptions is, that con- suspiciously close to those of his if he wants to claim damages for vincing a court that someone else is protected variety, he will – to begin lost sales and profits. infringing their plant variety rights with – normally want to have their is as easy as convincing a vegetarian DNA tested to obtain a unique Discovery procedure that meat is good for him, in other DNA fingerprint. This can already But how can the average plant words impossible. This feeling is provide the breeder with an indica- breeder gather all this information? not just triggered by the fact that tion that the plant is either his There are essentially two ways. the products covered by the rights protected variety, or belongs to an Either the breeder commissions are living plants and therefore, essentially derived variety. If he acts his own DNA fingerprinting and by their very nature, difficult to quickly, the DNA fingerprint may botanical analysis and makes his

30 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 own educated guess about the Bromeliads plants’ distribution and sales and Th e discovery procedure’s value to the profi ts made by the alleged plant breeders was recently demon- infringer, but such “home- strated in the Calypso case between made” evidence is unlikely to Exotic Plant and Deroose Plants. be accepted by a court. Or he Exotic Plant held a Belgian and a can use the effi cient discovery Dutch plant variety right for the mechanisms laid down by law. bromeliad variety ‘Calypso’. It came For example, back in 2004, across similar bromeliads, sold in the so-called “Enforcement in Belgium and the Netherlands Directive”, the European Union as ‘Starlight’ and ‘Catherine’ by set up an intellectual property Deroose Plants. (“IP”) framework for rights- It claimed before a Belgian court owners, including plant breeders, that these two varieties infringed to collect evidence of alleged a “prima facie” valid plant variety Molecular its Belgian and Dutch plant variety infringements and to enforce their right (which is presumed). Once marker rights for ‘Calypso’ and the court rights against the infringers based these conditions have been met, the technology. ordered a discovery procedure to be on that evidence. Th is framework courts can order the discovery pro- conducted by two experts. Th e fi rst has now been transposed in the cedure to be implemented to cover expert, a bromeliad specialist from national laws of the EU Member “any items, elements, documents Naktuinbouw, was asked to provide States. One of its key tools for plant or methods which may serve to DNA fi ngerprints for ‘Starlight’ breeders, who suspect that their establish the alleged infringement and ‘Catherine’ and morphologi- IP rights have been infringed, is as well as its origin, destination and cal descriptions of the plants. Th e the right to apply to the courts for scope”. Each of these elements will second expert, an accountant and measures to preserve evidence of be described by a court-appointed IT specialist was asked to estimate alleged infringements and to order expert, or two or more experts in the number of plants produced and suspects to provide information complex cases. Th e expert’s fi ndings sold by Deroose Plants in Belgium on the origin and distribution are submitted to the court in a de- and abroad. Th e fi rst expert’s report networks of the plants concerned. tailed report, usually within one or showed that the plants of all three Th is tool was largely based on the two months, and copies are sent to varieties were morphologically as Belgian “discovery procedure” the parties. Th e expert’s independ- good as identical, and thus allowed (“saisie contrefaçon” in French and ence means the report provides a to conclude that ‘Starlight’ and “beslag inzake namaak” or “BIN” solid basis for further legal action, ‘Catherine’ infringed Exotic Plant’s in Dutch). unlike the “home-made” evidence ‘Calypso’ plant variety right. Th e Over the years, this has proved to mentioned above. The discovery court issued an injunction ordering be the most powerful and cost- procedure’s value Deroose Plants to withdraw all to plant breeders effi cient means of enforcement was recently ‘Starlight’ and ‘Catherine’ plants available to IP rights holders who demonstrated from sale in Belgium and the are trying to enforce their rights. A in the ‘Calypso’ Netherlands and to destroy any recent case law has confi rmed that (pictured) case remaining propagating material. between Exotic the procedure is not only used by Plant and Deroose Th e court then ordered Deroose holders of “traditional” IP rights, Plants. Plants to pay Exotic Plant damages, such as trademarks or patents, but based on the fi gures in the second increasingly also by plant variety expert report. ||| right holders. Not just a Belgian affair Th is Belgian discovery is not just About the author a Belgian aff air. It can be (and is frequently) used by both Belgian Philippe de Jong is a lawyer in the Intellectual Property and Life and foreign breeders and it can Sciences department at the ALTIUS law fi rm in Brussels. He has be applied for on the basis of a been a member of the Brussels bar since 2002, and specialises Belgian, foreign or European title in patents, plant variety rights and parallel import litigation. to discover infringements across the He also advises clients on the regulatory framework for EU. Th e threshold for obtaining medicinal products and plants, including GMOs. He worked as a a discovery measure has been set consultant for the CPVO and has represented a large number of fairly low: all the claimant needs are innovating companies before the Belgian and European courts. “indications” of infringement and He is also an active member of CIOPORA.

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Since 1995, when Colombia became a UPOV 1978 Act member, Colombia’s PBR system the Colombian Agricultural Institute (ICA) has received a total of faces unsolved problems 1786 applications from all over the closer look at the numbers practices and ancestral knowledge. judicial control of the PBR system, world in all the shows that asexually repro- Th e government intends to proceed something which in principle fi elds of plant duced varieties, especially with the bill, but needs to develop a will solve the historical problems breeding. Out of ornamentals,A have benefi ted greatly strategy to comply with the consul- of the system associated with the these applications, from the system. Th is is quite plau- tation ordered by the Court. lack of technical knowledge of the a total of 1140 sible as 44% of the total applica- judicial authorities when enforc- certifi cates of tions originate from the Nether- Measures of protection ing PBR. Th e challenge is now in protection lands and 47% of the grants belong Despite not being able to adhere to the hands of the ICA, bearing in were issued by to rose varieties, followed by 14% the UPOV 1991 Act yet, Colom- mind that it is a small offi ce with December 2012. Chrysanthemum, 11% carnation, bia has managed to implement very limited human and fi nancial 11% Alstroemeria and only 20% the ‘91 Act minimum standards resources. Th ese problems would for other varieties. by providing breeders with (i) require immediate attention from provisional protection between the Colombian government in order Unsolved challenge fi ling and granting; (ii) eff ective to guarantee the success of this new Although the system has proven protection over Essentially Derived function. to be eff ective in granting Plant Varieties (EDVs); (iii) experimental Parallel to the implementation of Breeder Rights (PBR), an unsolved use exception; (iv) farmer’s privilege the new judicial functions of the challenge remains with the interna- restricted to less than fi ve hectares ICA, the government is attempting tional community, which is to dem- in addition to fi ling a report with to implement a socialisation pro- onstrate that the system provides ICA, and a marketing prohibition gramme for the existing indigenous adequate laws and regulations that of the harvest material; and (v) a communities, which delivers the are capable of meeting the demands 25-year term of protection for vines, (relatively small) changes that come of breeders as stated in the UPOV forest and fruit trees, and a 20-year from complying with the UPOV 1991 Act. term for other species. 1991 Act. Th is means the outlook With these needs in mind, the Adhering to the UPOV 1991 for the balance of the protection Colombian government has been standard, however, would allow the for plant innovation in Colombia is trying to adhere to the UPOV country to open the door for the optimistic. However, it also implies 1991 Convention for several years, implementation of even stronger an invitation to the international but is still facing strong political legal measures regarding harvest community and associations like CI- resistance from sectors opposing the materials, especially products OPORA to keep a vigilant eye on the broadening of the IP standards in that are manufactured with those country, with active lobbying high- socially sensible areas such as phar- harvest materials. But most impor- lighting the positive amendments maceuticals and agriculture. Th e tantly, adhering to the UPOV 1991 brought to the UPOV Convention in latest attempt to adhere to the ‘91 Act would provide the international the revised Act of 1991. ||| standard was made on April 2012, community with the certainty of when the Congress passed Bill 1518 political commitment to maintain adhering to the ‘91 Act of UPOV the highest minimum standards as About the author by Andres Rincon in the framework of implement- agreed by all the UPOV 1991 Act ing legal commitments acquired member states. Andres Rincon is a Colombian under the Free Trade Agreement Patent Attorney with broad with the US government. Th is law, ICA experience in Intellectual Property. however, has recently been declared Finally, to facilitate the enforcement He holds a Masters Degree from unconstitutional by the Colom- of plant varieties in the country, the the Max Planck Institute -Munich bian Constitutional Court, which Colombian Congress passed Bill Intellectual Property Law Center-, holds that the approval process 1564 in 2012, providing the ICA and has a successful practice in the violated the fundamental rights of with jurisdiction over infringement ﬁ elds of plant breeding protection, indigenous and tribal communi- of PBR. Th is change in essence and enforcement of intellectual ties. Th ese latter should have been creates a PBR specialized court, property assets. He is now a Senior consulted by the government before providing the Instituto Colombiano Associate at OlarteMoure, where the passing of the bill as the UPOV Agropecuario ICA (the organisa- he directs the Plant Breeding 1991 Act standard may aff ect tion that administers Colombia’s Protection Department and the those communities’ agricultural Plant Variety Rights Regime) with Litigation Department of the ﬁ rm.

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Overdijk or Bart Kiewiet. Vondst VondstYour innovation.knows Vondst knows Horticulture Vondst is a compact specialized law fi rm PlantOur Varietypassion. Rights We represent and assist a wide range of cli- based in Amsterdam that deals exclusively Vondst is one of the leading fi rms in the spe- ents within the horticultural and agricultural with intellectual property law, ICT, phar- cialistYour fiinnovation. eld of PVRs. We assist in maintaining, sector including fl ower and seed breeders, maceuticals & life sciences. The lawyers of exploitingOur passion. and enforcing PVRs in and outside growers, packaging companies and machine advocaten advocaten Vondst assist and support their clients in the EU. YourWe have innovation. extensive experience in manufacturers. Our fi rm is a member of thinking as an entrepreneur. We are experi- litigationOur concerning passion. the enforcement of Plantum NL and CIOPORA. advocaten enced, accessible, focused and committed. 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Our experienced lawyers read German Patent and Trade- between the lines, find any mark Office, the Office for Our expertise for your success! pitfalls or stumbling blocks, Harmonization in the Inter- advocaten advocaten seize every opportunity and nal Market (OHIM), the Ger- WürtenbergerKunze offers you an individual, exhaust all possibilities to man Plant Variety Office, the protect your intellectual pro- Community Plant Variety Of- extensive exceptional expertise in prosecution perty. We implement your fice, the World Intellectual advocaten advocaten ideas in consideration of their Property Organization (WIPO) and litigation proceedings on a national and need for protection and en- and enforces your rights be- force your rights. fore the national and Euro- international level, including (border) seizure WürtenbergerKunze will assist pean courts, including all you in disputes and, if neces- instances of the European activities as well as criminal proceedings. sary represent you before the Court of Justice. fondsfonds fonds fondsfonds fonds www.wk-ip.eu fonds fonds PBR and marketing

The importance of plant breeders’rights (PBR) for marketing purposes cannot be Breeders play vital underestimated. role in supply chain

company has in principal have to be aware of that and con- only two tools to sell its centrate on either the production products. It has to off er the for the fl orist or production for the productsA at a cheaper price than its supermarket. As a results growers competitor or it has to sell a unique have to diff erentiate themselves in product. To conquer a position by the marketplace, make choices and being cheaper than your competi- concentrate on one process. tors is a dead end street with only losers at the end. Being unique or Service supply machine creating the impression of being We are on the edge of the next unique (Coca Cola) is a better step. Breeders with their unique road to creating a stronger market Intellectual Property Right (IPR) position. Trademarks communicate products go directly to retailers: a the unique origin of a product, a Breeders with their unique Intellectual chain or a fl orist (group of fl orists), patented product or breeder’s right Property Right (IPR) products go directly to understand the products the protected product is always unique, to retailers: a chain or a fl orist (group of retailer wants to sell. Th en they go fl orists), to understand the products the at least at the start, otherwise it retailer wants to sell. together to farmers to produce the would not be granted a patent or requested fi nal products according breeder’s right in the fi rst place. comes under enormous time pres- to the wishes of the retailer and his sure especially as when working consumers: numbers, qualities, and Shortening the with perishables. Th is means that delivery dates. supply chain prices go up and the quality goes Th e whole post harvesting process What we know of modern markets down as soon as fl owers are cut and changes into a service supply is that production and consump- brought in the supply chain. machine for these specifi c segments: tion are coming closer and closer If we consider the product bought chains or fl orists. Th is process from together. All the steps in between by a consumer, a fi nal product, to breeder to consumer diff ers for the change and will be reduced to be diff erent from the raw product two main segments: supermarkets serving functions for the delivery harvested by a producer, then the and fl orists. Th e diff erences regard of products from the producer to fi nal product has to be produced the varieties, the size of the fl owers, the consumer. Overall there’s a somewhere. Basic and specialty the vase life, the transportation tendency to streamline the market products are produced by a fl orist and conditioning of the products down to its basics. whereas supermarket chain prod- through the supply chain and the As long as it is cheaper to collect ucts are produced by the suppli- marketing and price setting of the and regroup the products from ers of the retailing industry; the products by the retailers. the growers before transporting, bouquet makers. If a fl orist is the Th e retailer can concentrate on the by Jaap N. Kras shipping, cooling and post harvest- producer of the fi nal product, the sales and marketing of his products ing them well, then this function bouquet maker is the producer of and, if necessary, on producing the will remain. But do we need an the fi nal product for the chains. fi nal products himself for the basic independent wholesaler, freight need (fl orists) and the specialty need forwarder, transporter and ware- Know your market (parties). Th e breeder and the re- house provider to do that or could Th e outcome of market research is tailer should team up to manage the all these functions be performed a decisive factor in the role of the whole process with all the diff erent by one company? And when and company in between the farmer and choices and decisions an entrepre- where does the process start? the last outlet. Th e fi rst and most neur has to make. ||| important thing breeders and grow- Enormous time pressure ers must do is know their market. About the author Today’s wholesale companies are Products for the basic demand order driven: they start their work or the specialty demand diff er Jaap Kras is an industry veteran after receiving their orders. By structurally from products for the and owner and publisher of working this way, the whole process supermarkets. Breeders and growers FloraCulture Interantional.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 35 Managing PVRs

Sometimes you have to be really quick and rigid when it comes to Hydrangeas in enforcement of PVRs. And then it is helpful if the law provides what you need and the court a PVR squeeze system is equipped to do what the law n times of economic downturn, active inspection/investigation, RAI Precautionary measures says. breeders around the world are discovered that M had plant mate- RAI/HBA went to the viewing day increasingly confronted with rial at several locations in the area. in ‘s-Gravendeel on the following Igrowers who are not respecting This time M’s principal had put up Monday, October 15, to inspect breeders’ rights (PVRs). We also a screen in the form of a new com- the plants that were being offered see an increase of bankruptcies of pany, Botensia B.V. Even without at the auction. The auction house licensed growers. And if there are paying royalties this company went added that it did not yet see a need hardly any assets to be liquidated, bankrupt in August 2012. to cancel or suspend the auction in except a number of greenhouses The trustee in the bankruptcy was order to have time to investigate the and/or fields with plants, trustees/ left with rented greenhouses and claims of HBA. In the meantime, curators in a bankruptcy are not fields with an enormous number the auction clock was ticking always respectful towards PVRs, of Hydrangea cuttings, trays with until its closing time on Tuesday, which they tend to see as nasty ob- rooted cuttings, several sizes of 16 October, 2 pm. stacles for maximising the proceeds potted plants and mother plants. It We then decided that we could not of a liquidation. was late autumn and hard to identify wait for the required cooperation of because the plants were returning the trader and the auction and that Hydrangea case to hibernation and losing the colour we had to take some precautionary An example of the situation of their leaves. In a greenhouse in measures. We were looking at described above is the Hydrangea ‘s-Gravendeel, the Netherlands, there action to effectively prevent the case that occurred in the Nether- were around one million Hydran- plants of the HBA varieties to be lands in the autumn of 2012. geas, including approximately sold at the auction. by Tjeerd Overdijk The Hydrangea Breeders’ 260,000 cuttings and 240,000 At that moment there were and Maarten Leune* Association (“HBA”) is a well- half-grown HBA varieties, and at five basically two options. Either we known Dutch breeder of a number other locations were another million could organise a civil seizure of the of Hydrangea varieties, such as Hydrangeas, including approximate- infringing plants that were being ‘Bela’, ‘Red Beauty’, ‘Hot Red’ ly 300,000 plants of HBA varieties. offered for sale at the auction; and a variety with trade mark meaning, however, that we had to EARLY® BLUE . In the course of Auction obtain permission from the court 2011, HBA was confronted with a In early October it turned out that to undertake the seizure and we non-licensed grower M, who was the trustee had hired a trading had to find a bailiff who would believed to have propagated a vast company to arrange the sell off the be able to carry out the seizure. number of Hydrangea varieties plants and this trading company A complicating factor here was without having any kind of license. then arranged for an auction to be that the plants were simply being The illegal propagation had been held. It was clear that a large num- offered as Hydrangeas without any discovered through regular checks ber of illegal plants would be offered mention of variety names. and greenhouse/field visits made by for sale at the auction. The auction Another option was applying for Royalty Administration Interna- was already open for online bidding an ex parte court1 order which tional (RAI). and the closing date of the auction would prevent the selling of plant After a civil seizure of illegal plants was October 16, 2012, 2 pm. materials that infringed the PVRs RAI/HBA was able to reach a We then decided to write a cease of HBA. settlement with M for the 2011 & desist letter to the trader and the We basically only had the Monday infringements. auction advising them that selling to make the necessary arrangements HBA varieties at the auction would and you never know how long the Hard to identify constitute an infringement of several courts will need to give a ruling In the course of 2012, it appeared PVRs of HBA. On Friday October on an application for provisional that M had again undertaken acts 12 the trader responded that he was measures. Given the short time left of illegal propagation. But M was unaware of any PVRs as the trustee we decided to walk both paths and not cooperative and unwilling to had never made mention of any. see which of the two would give the inform RAI about his activities, The auction house referred the HBA first and the best opportunities. A the varieties, the locations and the claims to the seller and preferred to request for seizure had to be filed in size of his operation. By tracing and await instructions from the seller. the District Court of Dordrecht.

36 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 EARLY® BLUE. EARLY® ROSA. Hydrangea ‘Hot Red’.

A request for an ex parte prohibi- material of the protected Hydran- of all additional costs. RAI was tion order was to be fi led at the gea varieties2. also able to trace the purchased lots Hague District Court, because that and informed the buyers that they court is exclusively competent for Penalty threat were not allowed to propagate the PVR matters As for the auction, the judge ruled purchased plant material without a that it was not plausible that the license agreement. HBA exercised Knowledge sharing auction was expected to directly in- its rights, tackled illegal propaga- An interesting factor is that there is fringe the PVRs of HBA, but that tion and received the royalty. Th e a clear trend for more cooperation it was suffi ciently plausible that the trader and the trustee trader were and knowledge sharing between auction would be providing services able to sell the plants. Th e auction District Courts and as a result both as an intermediary, which would be had its auction. Th e buyers at the the seizure request and the ex parte instrumental for infringements of auction were able to buy Hydran- request landed on the desk of the the PVRs of HBA, against which geas for a good price, cleared from same judge at the Hague District special measures are available3. further PVR claims and/or royalty. Court. Th erefore we were able A breach of the order carried a Th is case shows how important it is to infl uence the timing to some penalty of €10,000 per event of that the law and the legal system are extent and we were able to persuade breach. As a result the plants to be well aligned. In the Netherlands, the judge to issue the requested sold at the auction were subject to the breeders have the benefi t of a ex parte order on the very same an eff ective PVR-squeeze: neither solid legal system that is working Monday, 15th of October, well the trader, nor the auction could well. We have effi cient courts and before the close of the auction. In be certain that they would not be experienced judges who are able the meantime, at the viewing day of selling plant material that would and willing, if the need arises, to the auction, RAI/HBA had identi- make them liable for the penalty grant eff ective provisional measures fi ed and labeled all the varieties in imposed, so the auction of the HBA on an urgent basis. each of a total of 200 diff erent lots, varieties could only take place with It also showed clearly that a good to determine the exact size of the the consent of RAI/HBA. cooperation between license agent, Overview of fl ow- infringement. In the order both the breeder and lawyer can result in a ering Hydrangea trader and the auction were told to Favourable solution fast and successful outcome of coor- seedlings (Photo ||| credits: Guido desist from infringing the PVRs of With the order in hand, RAI dinated infringement action. Clamer of Clamer HBA and more specifi cally to sell, was able to negotiate a favourable Informa). trade, deliver or keep in stock plant solution for the auction: all auction lots with plant material of HBA 1 ‘Ex parte’ means an order which is given varieties would be supplemented at the request of an applicant whereby the with PVR- and royalty information defendant is not heard upon the request. and the auction house would be in- 2 A Dutch language version of the order has strumental in collecting all royalties been published on two well-known Dutch due from the buyers at the auction, I.P. blogs and increased with a mark-up to cover . Search term ‘hydrangea’ the legal and other additional costs and it will be on screen. incurred. RAI received all buyers’ 3 In accordance with provisions similar to information per sold lot of HBA Article 9 para 1 (a) of the Enforcement varieties. Directive 2004/48/EC. Th e owners of the other fi ve locations were approached by RAI directly and paid the royalty and penalty for the HBA varieties. About the authors

Happy end Tjeerd Overdijk is a lawyer and co-owner of Th e ending was a really happy one. Vondst Advocaten. Maarten Leune is managing RAI collected royalties in respect director and co-owner of Royalty Administration of illegal plants and reimbursement International (RAI).

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 37 Plant breeding

About relationships between growers and independent The importance of breeders and the role of agents. communication in breeder- agent-grower relationships am well-acquainted with the Serendipity (professionals are a little more world of horticulture. I am In some genera, we see that some dispassionate in my experience). both a qualified marketer and breeders are making concerted ef- They can also often be far removed Ia grower with 15 years experience forts to breed towards specific goals from the norms of the commercial of getting my hands dirty. In the that promise improved value. This environment. There’s no HR world of new product development is largely limited to the genera and manager here. for garden plants (my specialism), species for which there is already this combination gives me under- a considerable established market. Agent standing of both the desires of the Pelargonium, Petunia, Lavan- In such circumstances, the new industry and consumer for new dula and Dianthus would be good plant needs an advocate, someone products, and the possibilities and examples. who will wave the flag and promote limitations of plant breeding. But for many other genera, and its benefits. Rarely is this person the there are thousands to choose from, breeder, as they will often only have Quantify your needs breeding is largely undertaken on limited connections to the whole- On one hand, growers wish for a small scale by enthusiasts, on an sale trade. So this becomes the role products that offer improved visual ad hoc basis by growers, or is even the breeders’ agent offers to the appeal and superior growing perfor- the simple product of serendipity; breeder; a knowledge of the trade, a mance. On the other hand, plant the interesting mutation spotted long list of valuable contacts and an breeders are limited by resources, in a garden or nursery, the open- understanding of what is required limits of time and money, and limits pollinated seedling that comes up and how to deliver it. of the gene pool available to them. beside the path. Equally, the grower also needs the At the same time, the end consumer agent to bring new varieties to their has a desire for something that is Professional versus attention, often from outside the new, but needs to be assured that it amateur breeders normal channels. Varieties that will will provide value to them, either by For the professional breeder, there provide commercial advantage. The giving them pleasure (colour, fra- is a simple relationship. Understand agent can also provide an interface grance) or by solving a problem (low what your customer (perhaps also for the breeder that integrates maintenance, difficult conditions). your employer) desires and then more readily with the commercial The result is a situation where steer your breeding programme environment. breeders supply the best products towards it, working to convince that they have to growers who find your customer that what you have Trust that their needs are generally not will meet their needs and be better Both the agent-breeder and agent- being fully met. That assumes that than that of your competitors. grower relationship are born out of growers have ever tried to quantify For the amateur breeder, the rela- their needs and desires for new tionship is more complex. Firstly, by Graham Spencer products. This is something that I they may not know who their Phygelius seedlings. believe few growers have ever done. customer is or might be. They will How many growers are conducting almost certainly only have limited organised research into the needs understanding of what the cus- and desires of their customers? Do tomer might want. The customer we know what garden centres want themselves may not be familiar us to provide for them? Do garden with the genus or species that the centres know what their custom- breeder is working with and will ers want to buy? Have we done not have any perception of the value any scanning to see what trends and benefits that the new plant might be important in the future? might have. Have we ever attempted to define In addition, there is the issue of “value”? Or, do we simply want to personality. Amateur breeders are sell what we had last year, only a often very emotionally attached bit more? to the products of their breeding

38 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 (Photo credits: SelectaKlemm). credits: (Photo

for production and sales and truthful royalty reporting. Th e agent can act Th e importance of as a conduit for information, but also can work to keep the two main parties in line! communication in breeder- Can breeders be more focused? I’ve heard it suggested recently that garden plant breeders have barely scratched the surface of what is agent-grower relationships possible. Th ere are many species and even entire genera where very little trust. Th e breeder needs an agent easy for others to copy or repro- In some controlled breeding has taken place. who will represent their interests to duce the innovative plant variety genera such as So it would be easy for breeders to Pelargonium we the best of their abilities and will without the breeder or their grower see that some wander aimlessly with their breed- ensure that they are not ripped- client being able to benefi t or even breeders are ing programmes. But by communi- off . Th e grower needs the agent to recoup the cost of the innovation. making concerted cating more eff ectively with custom- honour his word, be honest about For many breeders, even profes- efforts to breed ers and agents, it should be possible towards specifi c the qualities (and faults) of the sionals, intellectual property and goals that promise to begin directing eff orts in a more plant, to be an eff ective conduit for contracts are an area that is quite improved value. focused and, ultimately, more communication and to ensure that bewildering and not something This is largely profi table way. It is up to our in- the plant really is worthy of their they have suffi cient knowledge of. limited to the dustry to start to try to provide the genera and time and resources. species for which information necessary for breeders Whilst the relationships are Communication there is already to do that. Information about what dependent on trust, it is also up to Communication is possibly the most a considerable growers want and what consumers the agent to ensure that the cor- important factor in these relation- established want. In doing so, we will see new rect legal protections (intellectual ships. Th e breeder and grower need market products coming forward that have property) and contracts (trial agree- to exchange information openly and added value for our businesses. ||| ments, licences) are all in place and honestly. Th e breeder needs to make are as robust as possible. Breeders clear any known issues with their and growers alike must under- variety (disease resistance, propaga- About the author stand the importance of eff ective tion performance, mother stock protection of innovation, through qualities). Equally, the grower must Graham Spencer is owner of Plants For Europe Limited, an independ- patent, plant variety rights and return complete and full information ent plant breeders’ agent, based in East Sussex, England. Plants For even trademark. Without eff ective to the breeder including comprehen- Europe has just celebrated its tenth birthday. For more information, protection, the value of innovation sive results from trials provided in a see www.plantsforeurope.com is diminished. Th en it becomes too timely manner, plausible estimates

Robert J. Jondle, Ph.D., Esq. Patent and Trademark Attorney 858 W. Happy Canyon Road, Suite 230 Jondle Plant Sciences Castle Rock, CO 80108 Telephone: (303) 799-6444 a Division of swanson & Bratschun, L.L.c. Email: [email protected] www.jondlelaw.com

Jondle Plant Sciences is a full • Utility Patents: U.S. and International Areas of Practice: plant sciences, life service intellectual property • Trademarks: U.S. and International sciences, biotechnology, plant protection, • Plant Patents, PVP, CPVR and Plant mechanical, electrical, computer software law firm of 16 patent and Breeder’s Rights (PBR/UPOV) and technology, pharmaceutical, medical trademark attorneys and • Worldwide Intellectual Property devices, international prosecution, and agents dedicated to all aspects Protection and Strategies litigation support. of intellectual property law • Opinions and Counseling • Licensing, Contracts and Trade Secret in the United States and all Issues countries internationally. • Litigation; Dispute Resolution Opinion

Has the technical examination under the Community Plant Variety system Clearly or just about been twisted into a “botanical quest” for new varieties? distinguishable?

nder the Community Plant Variety Rights (“CPVR”) regime, the largest sui Ugeneris system of protecting plant innovations was established in 1994. As a result, a single application can lead to an intellectual property (“IP”) right that is valid and, theoretically, enforceable in all 27 member states of the European Union, which have a total population of more than 500 million. CPVR applications Over the past few years the market for horticultural products has remained more or less stable, yet the Community Plant Variety Office (CPVO) continues to receive up to 3,000 new CPVR applications each year. 60% of these applications Breeders united in CIOPORA are well advised to exert their influence when originate from the ornamental and it comes to defining commercially fruit sector. To me, it is logical that, reasonable distances, new varieties will for each new candidate variety to be have to keep from the existing ones. able to get a reasonable share in the market or to even develop its own Another example of a ‘clear dif- fully met, can be … distinguished market, it should literally be ‘new’, ference’ in today’s practice can be from any other plant grouping by i.e. sufficiently ‘unique’ or ‘original’ seen in the picture: one variety has the expression of at least one of the compared to the varieties already red; the other variety has green said characteristics”. available on the market. Otherwise, pedicels. Obviously, the difference Thus, simply to qualify as a variety all that variety can achieve is to is ‘clear’ in the sense that it can be there must be a difference in the saturate the market with similar seen - from underneath the plants. expression of at least one charac- products and, thereby, minimising Still, the question is whether breed- teristic allowing the variety to be the market share of each variety. ers want candidate varieties to be distinguished from all existing granted CPVR protection on the varieties. Daily routine basis of such differences. What then is called ‘distinct’ by by Thomas Leidereiter The current CPVR practice does the law? Art. 7(1) of the Regula- not reflect those simple findings. According to the law tion reads: “A variety shall be Today, a new variety is already Taking a closer look at the CPVR deemed to be distinct if it is clearly considered worthy of CPVR regulation (the ‘Regulation’)2 distinguishable by reference to the protection, as long as it shows a dif- reveals that it leaves plenty of scope expression of the characteristics...” ference in the expression of one of for broad(er) distances between and, thereby, elevates the require- its characteristics, provided that the protected varieties. In fact, it seems ment of distinctness to an entirely difference is considered to be ‘clear’ as if the Regulation would be different level. by the CPVO. Taking a measured expressly calling for larger distances characteristic for example (e.g. than those accepted today. Firstly, Clear distinction width of the leaves): The difference there is Art. 5(2) of the Regulation We see that not only should the dif- is considered to be clear if it occurs defining a variety, inter alia, as a ference allow for a “clear” distinction in the same direction and is found plant grouping that “irrespective between the varieties. Unlike Art. at the so called 1% level1 in two of whether the conditions for the 5(2) Regulation, which refers to at years of testing. grant of a plant variety right are least one of the variety’s characteris-

40 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 GW 3/13

rose breeding since 1906

Another example of a ‘clear difference’ in today’s practice can be seen in the picture: one variety has red; the other variety has green pedicels. Obviously, the difference is ‘clear’ in the sense that it can be seen – from underneath the plants. Still, the question is whether breeders want candidate varieties to be granted CPVR protection on the basis of such differences. tics, the distinctness requirement as traditionally and commonly of Art. 7(1) makes reference to the understood by plant breeders… characteristics as a whole, not to consequently that entity must one or more of the characteristics be broader than that, which sat- of the variety. Distinctness, by isfi es the conditions governing virtue of the law, shall be assessed the grant of Community Plant taking into consideration the Variety Rights in full…”.3 entire plant rather than assessing individual characteristics. In the future Th ere are, however, voices A CPVR as an IP right claiming that there is no dif- constitutes a legal title. While ference between Art. 5(2) and botanists, of course, are called Art. 7(1) of the Regulation. in to explain the diff erences, Even UPOV seems to promote which can be found between the idea of a clear botanical two varieties, it is a legal task to diff erence in one characteristic defi ne the minimal distances being suffi cient to grant plant between varieties. Eventually, it variety protection. However, the is a political issue. Th e breeders European legislator obviously united in CIOPORA are well had a diff erent idea in mind, advised to exert their infl uence when drafting the defi nitions when it comes to defi ning com- of ‘variety’ and ‘distinctness’: mercially reasonable distances, “whereas the term 'variety' shall new varieties will have to keep be considered to mean an entity from the existing ones. |||

1 I.e. the diﬀ erence can be measured with a probability value of 1%. 2 COUNCIL REGULATION (EC) No 2100/94, of 27 July 1994 on Community plant variety rights. 3 Proposal for a Council Regulation (EEC) on Community plant variety rights, CO M(90) 347 ﬁ nal, Submitted by the Commission on 6 September 1990, 90/C 244/01.

About the author CUTROSES Thomas Leidereiter is dealing with Intellectual Property in general and Plant Variety Right (“PVR”) matters in particular at Luther Rechtsanwaltsgesells- INDOOR & OUTDOOR chaft mbH, Hamburg. With an IP background covering also trademark law and the law on unfair competition, he is advising clients on all aspects of pro- GARDEN ROSES & MORE tection of plant innovations. Thomas Leidereiter has been involved in some major court cases dealing with fundamental PVR issues in the ornamental sector as well as questions of PVR infringement. He is a member of the Expert Committee on the Protection of Plant Innovations at GRUR, a member of WORLDWIDE CIOPORA, its lawyer’s panel and the Working Group on DUS Internet: www.rosen-tantau.eu CPVO

What is the secret of the success of the CPVO and what is its role in the horticultural business?

A CPVO success story felt honoured when CIOPORA cation is efficient for breeders. The A centre for asked me to provide an overview EU plant variety protection system harmonisation on the CPVO success story, takes the idea of efficiency further Apart from the mere business of Ias this indicates that CIOPORA in the sense that a single title is handling applications, the CPVO believes in the EU plant variety granted throughout the territory of has become a centre for member system. the EU. states and breeders to exchange You have to be brave to proclaim in views and develop ideas and com- Steady growth the CIOPORA Chronicle that the mon procedures and practices. The number of applications has EU system is cheap. I nevertheless Examples are harmonising the been growing steadily from 1996 dare to declare that, all in all, the technical work of examination until 2007. Since 2007, the number price for an EU title is generally offices and the joint work on of applications has been stable at reasonable and this has contributed new IT tools such as the Variety a little less than 3,000 per year. A to the success. The alternative of an Finder data base and an electronic total number of 45,500 applications EU system would be to protect and application system. In addition, were received from 1996 until 31 pay fees in a number of Member the CPVO Quality Audit Service December 2012. 34,000 titles were States which would certainly not be has been created in order to set a granted and more than 20,300 cheaper. The application fees were minimum quality for Examina- titles are still in force. The number reduced from € 900 to € 650 as from tion Offices to comply with in of protected titles increases each January this year. In addition, the order to be entrusted as competent year. The majority of applications Administrative Council has decided authorities to carry out DUS tests by Martin Ekvad received come from the ornamental to propose a decrease of the annual on behalf of the CPVO. sector (in 2012; 49% ornamental, fees from € 300 to € 250 as from A key element in a well-functioning 27% agricultural, 16 % vegetable, January 2014 to the Commission. In system is input from the users and 8 % fruit). These statistics are indi- general, the fees for technical exami- the breeders’ organisations such cators that the system is a success. nations are reasonable although in as CIOPORA. CIOPORA, ESA the fruit sector, a sector with many and Plantum are observers in the One, affordable, CIOPORA members, the fees tend meetings of the Administrative application for a to be high compared to other spe- Council of the CPVO where they large marketplace cies. An R&D project, co-financed provide input on all matters of Although many factors have by the CPVO, is in place to review policy including technical, legal contributed to the success of the EU whether costs can be limited for fruit and financial matters. Breeders are system, I think the main factor is species. TheCPVO is determined to involved in the CPVO’s daily work simple. A multinational system for keep costs affordable and I have no by actively participating in meet- granting an EU wide intellectual doubt that CIOPORA would remind ings and providing comments on property rights through one appli- us if this aim is not achieved. documents.

42 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 CPVO’s role in the varieties are granted protection horticultural business despite the fact that they are Th e role of plant variety rights is to very similar to already protected ensure that companies investing in varieties. It is argued that if larger the creation of new plant varieties distances from protected varieties are rewarded. Th e rewards can be were required for new varieties, this used for R&D, which will lead to would lead to a stronger protection. new varieties being created. It is harder to convince a producer In the horticultural sector, retailers to pay a royalty if the producer The Headquarters of CPVO in Angers, France. Upon a kind invitation of the CPVO, are keen to provide new varieties can get very similar varieties from CIOPORA members will visit the Community Offi ce during the upcoming AGM of for consumers and producers are other breeders at a lower price. the association in Angers on Thursday, April 25, 2013. keen to provide the retailers with Others argue that it is important new varieties. To be successful for the breeding industry that many in this market it is important for varieties can be protected. Th e more Evolution of the number of applications received since 2008 breeders to provide new competitive varieties are protected the more 3,300 varieties. I believe that a protected royalties can be collected. 3,200 variety is also important in terms Where does the CPVO come into 3,100 3,184 of quality. Th e variety is tested this discussion? Distinctness is 3,000 and described by an independent assessed by objective criteria laid 3,007 authority and it should be new. Th is down in protocols adopted by the 2,900 ensures a certain quality, which CPVO Administrative Council and 2,800 2,886 2,868 unprotected varieties on the market often based on a UPOV guideline. 2,700 2,768 do not need to comply with in the Indeed, the CPVO’s role is to ensure 2,600 ornamental sector. that almost identical varieties are 2,500 not protected. For this reason, 2008 2009 2010 2011 2012 Enforcing PVRs: draft protocols are discussed in a real challenge technical working parties, often on To convince the market to UPOV as well as EU level, before a Evolution of the number of rghts in force since 2008 purchase a variety is one thing, to protocol is adopted. CIOPORA and 25,000 prevent competitors from selling other breeders’ organisations are a protected variety is another. invited to these expert meetings. 20,000 20,362 Th rough protection, breeders aim It is important that they contri- 18,899 to prevent competitors from selling bute actively to make sure that the 15,000 16,785 17,612 15,591 the protected variety. Enforcing protocols, which might lead to plant variety rights has proven to be registration of too similar varieties, 10,000 a challenge for breeders for various are not adopted. I believe that 5,000 reasons. Th eCPVO is playing the CPVO and the breeders’ a supporting role by providing organisation should share this role. 0 policy guidance and assistance 2008 2009 2010 2011 2012 in the exercising of rights for the Final remarks benefi t of stakeholders. So far this Th e EU system for protecting new support can be exemplifi ed by the plant varieties is only 20 years fact that the CPVO has organised old but has already developed enforcement seminars in various important competences in the About the author parts of the EU and is constantly management of plant variety rights. providing information on request Worldwide it is the biggest system Martin Ekvad is President of the Community Plant Variety Offi ce from stakeholders. of its kind and it is aiming to off er (CPVO) since 2011. Before taking up this post he was the Head of high quality services to breeders at the Legal Service at the CPVO since 2003. Previously, Ekvad had Minimum distances aff ordable costs. I believe that the been working as a lawyer in the law fi rm Linklaters in Brussels CIOPORA has not only highlighted CPVO and the breeders’ organisa- and the law fi rm Magnusson Wahlin Advokatbyrå in Stockholm. that the legal tools for enforcement tions have a shared role in this Ekvad was working at a civil court for two years before joining are sometimes hard to apply in respect. ||| a law fi rm. Ekvad has a law degree from the University of Lund, practice, but also the fact that Sweden and a LL.M from King’s College in London.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 43 Fruit breeding

The creation of a new fruit variety, either of pome fruits, or stone fruits is a long and FruitBreedomics elaborate process. The long juvenile period and life cycle of these species often hinders a improves efficiency fast development of new varieties. A new project FruitBreedomics under the funding of of fruit breeding the EU FP7 program aims at building WP5-Understanding the genetics synergies in the EU underlying novel traits and providing phenotypic methods fruit breeding sector reeding programmes for and fostering an major fruit species in Europe effective knowledge are numerous and distributed WP1-Increasing ef ciency of WP2-Establishment of (marker assisted) breeding pre-breeding material and technology Baround the different growing areas transfer between with a total of 49 apple and the fruit sector 42 peach breeding programmes EUROPEAN BREEDING PLATFORM stakeholders. identified around Europe. WP8-Outreach Pome fruit breeding programmes WP3-Identi cation and WP4-Exploring the phenotypic are widespread all over Europe but characterisation of QTL for fruit and genotic diversity in apple more predominantly in Central quality and disease resistance and peach germplasm collections regions. There are also programmes by the pedigree based approach and its exploitation by AG approach WP9-Management located in other climatic environ- DIVERSITY AND QTL MAPPING PILAR ments with completely different set by Joan Bonany and of requirements. WP6-Development of marker/gene WP7-Tools and data management François Laurens In case of stone fruit, breeding arrays for high throughput programmes are mostly located in genotyping the South. In general, as discovered by a recent survey by the Fruit- TOOLS AND DATAMANAGEMENT PILAR Breedomics project, apple breeding programmes focus on objectives such as disease resistance, fruit quality, productivity, storability, FruitBreedomics 4. making the research outputs shelf life, fruit homogeneity and In view of this situation the (valuable traits, genetic markers, size. In the case of peach and research project, FruitBreedomics, new plant material) directly nectarine, the aims of the breeding funded by the EU FP7 programe, applicable for breeders, efforts are fruit flavor, firmness, was started to assist the fruit breed- 5. establishing a stakeholder sweetness and aroma, fruit charac- ing programmes. FruitBreedomics network teristics, tree habit, harvest date and aims at bridging the gap between Although it focuses on apple and shelf life. the state-of-the-art genetic research peach, many of its tools will also The breeding programmes are and its application in fruit breeding. benefit other species. relying on both private and public By using a multidisciplinary ap- funding, whereas the private fund- proach, including genetics, genom- Work packages ing often results in varieties with ics, eco-physiology and bioinfor- The project is structured in several restricted schemes for development matics, it is called upon to improve work-packages (WPs). Two WPs on the market (‘club varieties’). the efficiency of the apple and are directly dedicated to breeding: Most of the fruit breeding pro- peach breeding programmes by: WP1 develops a validated pipeline grammes are based on the classic 1. developing new and adapted for Marker Assisted Breeding and breeding schemes - phenotypical tools, implements it in the ongoing selection of best individuals in a 2. studying a wide range of traits to commercial breeding programs; specific election site is a common enlarge the coverage of selection WP2 makes available the selected methodology. The Marker Assisted criteria, pre-breeding material to the Selection is seldom used in com- 3. analysing and exploiting the consortium of project partners and mercial breeding programmes. wide genetic diversity available, aims at reducing the introgression

44 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 ship includes research institutes, universities and SMEs. Project achievements FruitBreedomics started on March 1, 2011, with a budget of €10 million co-fi nanced by the FP7 of the European Commission and it will end by August 2015. Halfway through the project, signifi cant progress has been made. Bases for the pilot studies which will apply genomic tools in commercial fruit breeding programs starting in 2013 have been built. Th ese pilot studies time of new traits from wild spe- Stakeholders will make use of some genotypic cies to pre-breeding material with Th e network of stakeholders is a sig- tools (low-density and cost-effi cient advanced fruit quality by inducing nifi cant component of the project. SNP markers chip) made available early fl owering thanks to the fast- Until now, the focus has been on within the framework of the breeding technology. breeders of apple and peach varie- project. Another tool that has been Th e research eff orts are directed ties. However, during the project developed is a 20K SNP apple chip. on improvement of our under- lifetime, this network will be ex- Th is chip, together with the already standing of the genetics of some panded. Th e Project Platform will available 9K SNP peach chip, will major horticultural traits and the optimise the knowledge transfer, allow a better understanding of the development of innovative research technology and biological materials genetic background of main agro- tools to effi ciently fi nd marker trait developed during and beyond the nomic traits. High throughput pro- associations in breeding popula- course of this project for its use at tocols for Monilinia resistance, fruit tions and genebank germplasm. the scientifi c and industrial levels. quality and abiotic stress are being To overcome the main issues of Th e ultimate goal is the utilisation developed by using non-destructive the past genetic studies on fruit of the molecular tools by private measurements, transcriptomic tech- trees (narrow genetic diversity, low and public breeders in the commer- niques, among others. Th e setting mapping density), FruitBreedom- cial breeding programmes. up of the FruitBreedomics database ics focuses on two innovative and Th e participation in this network is will allow easy access to project complementary genetic mapping open to any European fruit breed- information for breeders. approaches based on a wider ing programme, fruit germplasm Th e research projects like Fruit- genetic diversity: i) pedigree-based collection and relevant actors of the Breedomics, serve the whole fruit analysis (PBA) (WP3) and ii) fruit value chain. Th e members of value chain and the society in Genome-wide association (GWA) the network get access to the rele- general. ||| mapping (WP4). Th e WP5 – WP9 vant information on the develop- respectively include: analysis of ment of the project, are invited to the genetics, development of high the annual stakeholder congresses, throughput phenotyping tools on the FruitBreedomics international About the authors novel and important traits, marker conference and are eligible for and gene arrays for high through- training scholarships. Joan Bonany is director of IRTA Fruit put genotyping, elaboration of the FruitBreedomics brings together Research Subprogramme and outreach leader software and data management 26 full partners and one invited FruitBreedomics WP8 and Francois Laurens is tools for breeders, dissemination party from ten EU countries plus senior scientist at the Institute of Research on and communication and general South Africa, New Zealand, Israel, Horticulture and Seeds at INRA Angers and management of the project. China and the USA. Th e partner- coordinator of the FruitBreedomics project.

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 45 IRBA_203x273.pdf 1 20-03-13 09:55 AGM 2013

It comes as no surprise that this year’s venue for CIOPORA’s Annual Tout arrive en France! General Meeting is Angers, which is the home town IOPORA’s Annual General of the CPVO. In its Meeting will include long history dating 32 hours of meetings, back to 150 AD, Cworkshops and discussions, which Angers has been all have the same common goal: to dubbed ‘Ville des update CIOPORA’s position on IP Fleurs’ (City of protection. CIOPORA will serve its Flowers) and ‘Ville guests brand new topics for the an- verte’ (Green City). nual IP workshops, the IP-oriented From April 22 to agenda of the AGM and a little bit 25, Angers has the of fi ne French cuisine in between perfect chance to help you digest all the IP-related to protect its information we have to off er. green status with CIOPORA bringing April 22 – IP Workshops: the international ‘Vive la connaissance!’ community of Long live the knowledge! Th e ornamental and CIOPORA IP Workshops invite fruit breeders CIOPORA members and guests to together within its three sessions of intensive learn- fortifi ed city walls. ing experiences. Th is year’s IP The magnifi cent setting of Brissac Castle will provide the spectacular backdrop workshops will address a number of for the CIOPORA’s AGM dinner on April 23. hands-on topics that every breeder should have on his or her radar. an open session. Th ere has been breeding in September 2012 in Dr. Katrin Ridinger from the also been a new development Venlo. President Andrea Mansuino consulting agency Henrik Schreiber among the crop-oriented groups: emphasised that the AGM in Research & Consulting will share the new Crop Section Gypsophi- Angers should become an im- her expertise in the area of patent la will hold its very fi rst meeting portant forum for surveying the research in biotechnology with the during the CIOPORA AGM 2013 opinions of the community in order CIOPORA members. Dr. Nicola in Angers. to come up with the much needed Lanteri, international fi scal and solutions for the enhancement of economy consultant from the Stu- April 24 – Annual General Meet- IP rights protection for the horti- dio Lanteri Associazione Profession- ing: ‘Tous pour un, un pour tous’ cultural breeders. ale, will introduce the participants To fi nd a mutual basis in order to to the topic of international taxation update the position of CIOPORA April 25 – Business excursions: of royalties. Th e third workshop will on the central issues of the IP ‘Bon voyage...’ address the subject of licensing of Protection is the focal point of the Th e revival of the business excur- IP Rights for breeders. Th e compact upcoming AGM of CIOPORA in sions in their original form of two size of the groups will guarantee an Angers. Th e topics on the agenda separate tours - for ornamentals and eff ective learning experience. will include discussions on: fruits – is planned on the last day of by Anna Kaehne • minimal distance between the CIOPORA’s AGM Week 2013. April 23 – Working Group and varieties; After a joint visit of the head- Crop Section meetings: ‘Une ﬂ eur • ground-breaking innovation; quarters of the Community Plant ne fait pas une guirlande’ • Essentially Derived Varieties Variety Offi ce, the participants You cannot make a garland with (EDV); interested in visiting fruit produc- one fl ower, nor can you achieve • breeders' exemption; tion sites of the Anjou region will your goals without colleagues to • patents for plant-related be taken on a tour by GEVES, and share your working experiences inventions. IFO, a company specialised in the with. Th at is why the networking research and development of apple and co-operation in the groups Th e Board of CIOPORA is and pear varieties. within the structure of CIOPORA looking forward to continuing For the participants involved in is so important. Th is year the debates, for which the ground- ornamental plants, CIOPORA will CIOPORA provides its members work was successfully laid at the off er an excursion through several with the opportunity to join the CIOPORA Conference on Patent of the plant breeding companies Working Group meetings during and modern PBR for horticultural located in the region. |||

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 47 France and UPOV

By passing the law n° 2011-1843, France’s accession to the 1991 France has finally acceded to the 1991 Act of the UPOV Convention. Passed Act of the UPOV convention by the Parliament on November 28, 2011, this law rance has been a member of Major modification was published on the UPOV since October 1971 Another major modification December 8, 2011. and a part of the 1978 Act of induced by the new law, is an On April 27, 2012, Fthe UPOV since February 1982. The evolution about the farm-saved France ratified accession to the 1991 Act has been seeds regulation (Article 16 of the the 1991 Act with discussed in depth, especially in law). The use of farm saved seeds the deposit of its regard to the farm-saved seeds issue. was prohibited before the passing instrument to UPOV of the law. Now, the production of Office. The Act came INOV farm-saved seeds is authorised for into force in France The aim of the new law was to the 21 species that are listed in the on May 27, 2012. bring French legislation on Plant EU regulation (CE) 2100/94. The Breeders’ Rights in compliance law stipulates that this list can be with the 1991 Act of UPOV and amended by decree of the Council also with the EU regulation (CE) of State (the highest administrative 2100/94, which is the legal base to jurisdiction in France). get a Plant Breeder’s Right (PBR) Farm-saved seeds of a protected applicable on the territory of the variety can be used without the European Community. authorisation of the owner of Article 1 of the law creates the new the Plant Breeder’s Right in two National Office for Plant Breeder’s situations: Rights, called the Instance Nationale • Freely by small farmers according des Obtentions Végétales (INOV). to the definition given in the this derogation and the basis to INOV has its headquarters within regulation (CE) 2100/94 define the amount are decided by a by Joël Guiard and the GEVES premises. GEVES is • By any other farmer subject to decree of the Council of State. Louise-Anne Petit France’s official organisation payment of a financial offset to Among the other modifications overseeing the technical implemen- the owner of the Plant Breeder’s introduced by the new text, the tation of regulations on varieties Right. following aspects can be high- and seeds. This system of levying financial lighted: the introduction of the This new office replaces the former offset aims to protect the interests definition of the variety as written entity, which was a committee of of plant breeders and contributes in the 1991 Act, the definition of experts called National Committee to the financing of research for the DUS system, the notion of the for Protection of Varieties. In the the creation of new varieties. For Essentially Derived Variety, the former organisation, the titles were the purposes of the binding of the possibility to take into account delivered collectively by several amount of this financial offset, technical examination results deliv- experts. To simplify the procedure either there is an interprofessional ered by the applicant and the legal and reduce the delays, the head of agreement or a contract between regime of Plant Breeders’ Rights INOV is now in charge of granting the owner of the right and the infringement. The legal texts for the Plant Breeder’s Rights. farmer. In the absence of such implementation of this new law are The main missions of INOV are: devices, the conditions for applying still under preparation. ||| • Granting Plant Breeders' Rights when varieties have fulfilled the legal requirements and delivering About the authors all official documents related to application and Plant Breeders’ Louise-Anne Petit is an intellectual property lawyer. She has been Rights. working as legal manager at GEVES, the French official organisation • Cancelling Plant Breeders’ Rights in charge of the technical implementation of regulations on varieties according to the conditions and seeds, since 2012. Joël Guiard is an agronomist specialised in plant defined by law. breeding working for GEVES, the French examination office for testing Besides these, INOV is also in new plant varieties. He has been involved in the implementation of charge of proposing any measure regulation on varieties and seeds for more than 30 years. He has acquired required to implement the law a wealth of experience in the field of Plant Breeder’s Rights, with active on Plant Breeders’ Rights to the participation in the UPOV and the CPVO bodies. Ministry of Agriculture. For further information: www.geves.fr

48 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 Company profi le

What’s new? France’s accession to the 1991 Wherever you go, whoever you meet, For Meilland IP is The Next “What’s new?“ remains one of Act of the UPOV convention the fi rst questions Big Thing for innovation everyone asks. The novelty effect attracts people’s attention, gives t is defi nitely a long-term process cultivars. Observing them most them an opportunity to get there. It is well known, generally under diff erent agronomic to identify with a when looking at a population of and climatic conditions with the new product. This Inew seedlings, that it is hard to say view to assess their performance to obviously also on the spot which ones will be the the benefi t of those exploiting them applies to our sector commercial winners or the break- thereafter. and its pre-existing through innovations years later. At items, concepts, the same time, it is usually expected Three pillars or products, and from a breeder and his team to At Meilland, the innovation process it is a part of the come up with new and innovative has been built up over the years daily game in which shapes, features, plant profi les, etc. by relying on three fundamental breeders of new as quickly as possible. pillars: a genetic pool of carefully ornamental and selected cultivars, the expertise of fruit varieties are Time is the main the team involved and the imagina- involved. But it is constraint tion of the breeding team. One not enough to bring However, a plant remains a plant. can try to rank the most important a new product to Although we are living in the high- factor among these, but all of them the market – to be speed internet era, time still con- count for sure! Th e combination innovative is really stitutes the main constraint in the of these ingredients has led to the what customers innovation process. Th ere is no way selection of various varieties: mono- and the market are to bypass the phases of observation use varieties, like the majority of the looking for. and evaluation in order to identify cut rose fl owers, problem solvers like and select the most promising new the MEIDILAND® series, but also multi-functional varieties, geared either to be used in landscape, garden or even patio pots.

Breakthroughs Rosa MIMI EDEN® Var. Meiptipier From the past, Meivildo YVES (Credits: ®Meilland International/ Double M Production). PIAGET® remains a breakthrough innovation, being shaped like a peony and highly scented at the would not be worth the investment same time. Besides Meiviolin, without a relevant Intellectual PIERRE DE RONSARD®/EDEN Property protection. Among others, ROSE® has been recognised for its eff ective IP protection of plant incredible abundance of repeat innovation certainly requires a blooms combined with an attractive well-defi ned minimum distance contrast between the soft colour approach so that a new cultivar is and the deep dark green glossy foli- clearly distinguishable from the age. More recently, Meistiley Red other pre-existing ones, allowing a ELEGANCE® has been featuring a concerned breeder to bring such in- new trend, mixing the” Elegance of novations to the market to achieve a garden rose with the performance return on investment and to prevent of a cut fl ower”, while the compact confusion in the trade and among roses from the DRIFT® series pre- the consumers. sent the “Next big thing for small Finally, isn’t it true to say that one gardens”. gets satisfi ed when ones innovative variety can be exploited on a IP long term basis, not only thanks to It is needless to say that all the proper marketing inputs, but above innovation and, more generally, all thanks to a strong and reliable IP research and development activities strategy and system? ||| DRIFT® Roses, The Next Big Thing for small gardens (Credits: ® Meilland International/Double M Production).

CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 49 CIOPORA Members

La Villetta Srl

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ROYON CONSULT Royal Berries S.L.

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Ciopora Suppporters For further information about CIOPORA please contact the How to become a supporter? You are a natural administrative offi ce in Hamburg. person or company prepared to support and foster the objectives, purposes and policy of the CIOPORA association, but do not fulfi l the requirements P.O. Box 13 05 06 for membership in CIOPORA? Please contact D-20105 HAMBURG, GERMANY CIOPORA at the address as featured on this T (49) 40 555 63 702 page. CIOPORA’s current Supporters are: F (49) 40 555 63 703 Agri Information Partners, Distel Software, www.ciopora.org Hawita Gruppe, FloraCulture International, [email protected] André Briant and Nevado Roses.

50 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013 Colofon

the business magazine for worldwide floriculture Th e CIOPORA

2013 Editorial & Administration Offi ces april Chronicle is a www.ciopora.org special edition FloraCulture International Photography: FloraCulture International and CIOPORA of CIOPORA Business address: ECA Offi ce 140-21, Legmeerdijk 313, Cover photograph: Evgeny Makarov and the monthly 1431 GB Aalsmeer, the Netherlands business magazine Postal address: Postbus 1081, 1430 BB Aalsmeer, the Netherlands Publisher: FloraCulture International on worldwide T (31) 297 769 095 F (31) 297 365 366 (jaap@fl oracultureinternational.com) What is essential PBR toPsy-tuRvy fl oriculture How UPOV and its members is (sometimes) turn the system upside down invisible to the eyes. seeing douBle… you Bet Innovation as driving Minimal distance between FloraCulture Editor-in-chief: Ron van der Ploeg (ron@fl oracultureinternational.com) Printer: Habo DaCosta varieties force of the market! International. with the kind assistance of Dr. Edgar Krieger ([email protected]) All rights and Anna Kaehne ([email protected]). Designers: Aryen Bouwmeester, Dirk van der Burgh reserved© 2013. No portion of editorial may be reproduced in any form without written Contributing writers: Andrea Mansuino, Andres Rincon, Anna Kaehne, permission of the publisher. Publisher is not Anthony Tesselaar, Berno van der Geest, Edgar Krieger, Dr., Advertising Sales Offi ces liable for advertisements using illegally obtained Garry Grueber, Graham Spencer, Jaap Kras, Joël Guiard, Joan Bonany, Dennis Seriese (dennis@fl oracultureinternational.com) images. Louise-Anne Petit, Laura Romestant, Maarten Leune, Martin Ekvad, Angie Duff ree (angie@fl oracultureinternational.com) Philippe de Jong, Tjeerd Overdijk, Th omas Bouvet T (31) 297 769 095

RAI is worldwide representing breeders ADMINISTRATION PLANT PATENT of ornamental plants INTERNATIONAL in the field of plant ROYALTYLICENSING WORLDWIDE breeders rights and PROFESSIONAL plant patents. RAI BREEDERS advises breeders

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takes care Worldwide watching your rights. of filing applications, develops www.rai-worldwide.com license agreements, Office Europe North-America Latin-America Japan 's-Gravenzande, Holland Fort Myers, Florida, USA Bogotá, D.C. Colombia SA Kashiwa-Shi, Chiba collects royalties and Phone (+31) 174-42 01 71 (+1) 239 278 9917 (+571) 601 9018 (+81) 4 7146 5188 Fax (+31) 174-42 09 23 (+1) 239 278 4833 (+571) 256 3855 (+81) 4 7146 5332 performs controls. E-mail [email protected] [email protected] [email protected] [email protected]

Advertising Index COMPANY PAGE WEBSITE COMPANY PAGE WEBSITE Agri Information Partners...... 8 ...... www.agripartner.nl Jondle Plant Sciences (Swanson & Bratschun) ....39 ...... www.sbiplaw.com Altius Advocaten ...... 32 ...... www.altius.com Luther Rechtsanwaltsgesellschaft mbH ...... 32 ...... www.luther-lawfi rm.com Anthony Tesselaar Int...... 32 ...... www.tesselaar.com Meilland International ...... 52 ...... www.meilland.com Biancheri Creations ...... 15 ...... www.bianchericreations.it Moerheim New Plant ...... 25 ...... www.suntorycollection.info CIOPORA ...... 26-29 ...... www.ciopora.org NIRP International S.A...... 14 ...... www.nirpinternational.com Conard-Pyle Co...... 3 ...... www.conard-pyle.com Rosen Tantau ...... 41 ...... www.rosen-tantau.com Danziger “Dan” Flower Farm ...... 2 ...... www.danziger.com Royalty Administration International...... 51 ...... www.rai-worldwide.com Fides ...... 10 ...... www.fi des.nl Selecta Klemm GmbH & Co. KG ...... 11 ...... www.selectaworld.com HilverdaKooij ...... 10 ...... www.hilverdakooij.nl Smthuijsen, Winter & de Vries ...... 32 ...... www.swdv-advocaten.nl Hortis USA ...... 14 ...... www.hortisusa.com Vondst Advocaten ...... 34 ...... www.vondst-law.com Hydrangea Breeders Ass...... 14 ...... www.hydrangeabreeders.nl Wütenberger Kunze ...... 34 ...... www.wk-ip.eu IRBA (Int. Rose Breeders Ass.) ...... 46 ...... www.ciopora.org

This index is provided as a service to our readers. The publisher does not assume responsibility for errors or omissions. Visit FloraCulture International advertisers on the internet by linking to their websites from our Digital Online Advertiser Index at www.fl oracultureinternational.com. For readers who do not have internet access, please send your request for additional information from any of our advertisers to FloraCulture International (P.O. Box 1081, 1430 BB Aalsmeer, Th e Netherlands). Be sure to include your name, company name, address, faxnumber and the name(s) of the companies about which you would like to receive additional information. © Meilland 2013 – Photo Double M Production