Tài liệu EUROPEAN PLANT INTELLECTUAL PROPERTY docx

EUROPEAN PLANT INTELLECTUAL PROPERTY
This authoritative new work analyses European plant intellectual property
rights. Whilst the focus of the work is on Europe, and in particular the European
Patent Convention, the Council Regulation on Community Plant Variety Rights
and the EU Directive on the Legal Protection of Biotechnological Inventions,
these provisions are discussed within the context of international legislation,
including the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs) and the Convention on Biological Diversity. It is the first book
to look at the impact of plant intellectual property rights on the European plant
breeding industry and assess whether recent developments, such as the Novartis
decision, will assist plant breeders, from all sectors of plant breeding, in the pro-
duction of new plant products. In addition to a thorough discussion of the leg-
islation, the book includes unique empirical research results obtained by the
authors as part of a two-year research project funded by the European Union,
which surveyed attitudes towards, and use of, plant intellectual property rights
within the European plant breeding community.
(A) LLew&Adcock Prelims 18/7/06 09:59 Page i
(A) LLew&Adcock Prelims 18/7/06 09:59 Page ii
European Plant Intellectual
Property
Margaret Llewelyn
&
Mike Adcock
OXFORD AND PORTLAND, OREGON
2006
(A) LLew&Adcock Prelims 18/7/06 09:59 Page iii
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213–3786

USA
Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190
Fax: +1 503 280 8832
Email:
Website: www.isbs.com
© Margaret Llewelyn and Mike Adcock 2006
Margaret Llewelyn and Mike Adcock have asserted their rights under the Copyright, Designs and
Patents Act 1988, to be identified as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any mean, without the prior permission of Hart Publishing, or as
expressly permitted by law or under the terms agreed with the appropriate reprographic rights
organisation. Enquiries concerning reproduction which may not be covered by the above should
be addressed to Hart Publishing at the address below.
Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW
Telephone: +44 (0) 1865 517530 Fax: +44 (0) 1865 510710
Email:
Website:
British Library Cataloguing in Publication Data
Data Available
ISBN–13: 978–1–84113–322–5 (hardback)
ISBN–10: 1–84113–322–1 (hardback)
Typeset by Hope Services, Abingdon
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
(A) LLew&Adcock Prelims 18/7/06 09:59 Page iv
Preface
The importance of plants, whether agricultural, medicinal, culinary, artistic,
recreational or symbolic, resonates throughout history. Throughout the centuries
man can be seen to place reliance on plants not merely to provide and maintain
life

1
(or to secure death),
2
but also to designate status and define humanity.
3
From
the earliest days man has also sought to use plants, whether by claiming plant
material as territory or by influencing our perceptions by ascribing symbolic
qualities to that material, but it is only with the advent of modern genetics that we
have sought to secure rights not merely over but in the material itself.
In his book, The Forgiveness of Nature: the Story of Grass,
4
Graham Harvey
details the way in which different types of grasses have been developed in order
to meet different needs. From specialist amenity grasses for football pitches to
grasses specifically bred to improve milk and beef quality, the book provides
evidence of the fact that whilst most of us acknowledge the presence of grass, for
‘it is a common everyday thing, scarcely worth a mention’, few of us recognise
its influence on much that we do and, in turn, on the lives we lead. Grass is not
the only member of the plant world which serves as a silent player shaping the
world we live in. In his two beautifully illustrated books, The Plants that Shaped
our Gardens,
5
and Dangerous Garden: The quest for plants to change our lives,
6
David Stuart outlines the many different ways in which plants have been utilised
from medicinal use to the purely aesthetic and yet, this use aside, most people
give little thought to the plants around them, the diversity within species, or to
the work which has gone into their production. Such thoughts as we do have
tend to focus on individually localised issues such as whether a certain plant

would be a desirable addition to a garden or if a particular vegetable would be
suitable to serve at dinner—the innovation involved goes unnoticed and yet
such enquiry and innovation is central to our ability to enjoy many of the plant
products which surround us.
This fascination with plants and man’s desire to make use of plant material
can be traced back through the centuries. George Drower, in Gardeners, Gurus
and Grubs,
7
provides numerous examples of little-known inventors who have
1
Through agricultural usage.
2
For example the use of hemlock.
3
One only has to look at literature through the centuries to see nature, in both its natural and
man-made guises, used to denote territoriality (for example ‘this green and pleasant land’) or to
symbolise or represent man’s state.
4
(Jonathan Cape, 2001).
5
(Frances Lincoln Ltd, 2002).
6
(Frances Lincoln Ltd, 2004).
7
Drower, Gardeners, Gurus and Grubs, The Stories of Garden Inventors and Innovations
(Sutton Publishing, 2001).
(A) LLew&Adcock Prelims 18/7/06 09:59 Page v
made the gardening experience not only more enjoyable for the general public,
but, in many instances, possible—such innovations including the wheelbarrow
(Chuko Liang AD 231) and the classification of plants (Theophrastus circa

BC 322–288—his first book, An Enquiry into Plants, attempted to classify all
known plants; his second book, The Causes of Plants, concentrated on roses).
Documentation from other civilisations also shows a reverence for plants. For
example in Ancient Egypt the onion (which had been introduced into the coun-
try from Asia) was worshipped because it was thought to symbolise eternity and
records show that frequently golden replicas of the vegetable were placed in the
tombs of Pharaohs. Although other vegetables were less venerated they were
still treated with great respect, and metal replicas of fruit and vegetables such as
leeks, grapes, figs, radishes and pomegranates have been found.
8
At a more general level, and concurrent with both the research into the trans-
mission of characteristics undertaken by Mendel and Huxley as well as the
refinement of national and international industrial property standards, there
can be found the extensive descriptions of the exploits of those who could be
termed ‘plant explorers’, who advertently placed the seeking out of new plants
as the basis for their global wanderings. The delightful book In Pursuit of Plants
by Philip Short
9
provides extracts from the journals of 19th and early 20th cen-
tury plant collectors from around the world, each of whom describes the excite-
ment felt in discovering new and wondrous plants. It is this desire to enquire
together with developments in the capacity to utilise the material discovered
through the enquiry which has produced the modern world of plant breeding.
This work has provided society with many of the plants which it enjoys on a
daily basis, including those used in non-obvious capacities such as textiles,
medicines and engineering, although these uses often go unnoticed. Stuart
‘Psycho’ Pearce may be a much lauded hero to Nottingham Forest fans but it is
doubtful whether many of the same Forest fans would pay similar homage to the
Institute of Grassland and Environment Research which produces grass specifi-
cally designed for use on football pitches and was responsible for the playing

surface at the City Ground which enabled ‘Psycho’ to play some of his best
football.
10
For the most part, plant breeding activity and its results go unnoticed and
uncommented upon because it is uncontroversial. However, as has been
well rehearsed elsewhere, this is no longer the case, and the activities of plant
scientists are coming under increasing scrutiny. One of the reasons for this is the
increasing awareness of the territorialisation of plant genetic material. This is
vi Preface
8
and />science/agriculture.htm.
9
Short, In Pursuit of Plants (University of Western Australia Press, 2003).
10
This connection is particularly significant to one of the authors, as her grandfather, Professor
ET Jones, was director of the Institute in the 1950s (when it was the Welsh Plant Breeding Station)
and a founding father of the UK’s plant variety rights system, and her partner, Professor Robert
Bradgate, is an avid Forest fan.
(A) LLew&Adcock Prelims 18/7/06 09:59 Page vi
nothing new—the use of land together with that which rests upon and below it
to define and describe States and status can be traced back throughout history.
Land, and what it represents in terms of identity and power, stands as a sin-
gle thread linking all nations, all peoples and every person throughout history.
At the heart of this universal connection to the land lies the desire to own, and
by owning, to define. States are defined via their borders and increase their
power by extension of those borders often via the use of force. Individuals define
themselves by reference to their property and to what they place upon it.
This connection to the land is not merely based on a physical association with
it, it also resonates with perceptions as to what land represents. Simon Scharma
in Landscape and Memory

11
provides examples of the roles land and landscape
have played in religion, literature and art, amongst others, in shaping our, often
unconscious, views of the world around us. In the past the global realisation of
the importance of land came in the form of conquest. Today the physical annex-
ation of another country is deplored and even the threat of such annexation can
be sufficient to justify stern action from the international community, and land,
and all that it represents has taken on what could be regarded as a heightened
significance as countries and peoples seek to assert their identity.
Equally the colonisation of land, where no force is used, but indigenous
peoples are nonetheless made subject to externally imposed rules and processes
is frowned upon as colonisers are increasingly called upon to apologise for past
practices, provide compensation and, arguably most importantly of all, to polit-
ically recognise the community(ies) affected. In the absence of other land to
acquire in order to add wealth and power, attention has turned increasingly to
the value of that which can be found upon and within it—and with this atten-
tion comes the concomitant issue of, if there is a value, who has the right to
exploit it or, put another way, who owns the right to the value in the material.
One of the main sources of this value are plants and the interest in acquiring the
right to control the exploitation of both plants and the genes making up the
plants has led some commentators to view this as a new form of colonialisation.
This focus on the value of indigenous plant material and the issue of who can
control access to any value residing within that material has meant that the con-
trol mechanisms, and more specifically intellectual property rights, have them-
selves come under increased scrutiny.
12
To a considerable extent the focus for
the scrutiny has been the developing world, but as this book will discuss, there
are also issues which arise which relate to policy and practice within a developed
country context. This book will look at the way in which all aspects of plant

material (from genes to species) have been increasingly regarded as private
property over which a private property right can be asserted. The focus will be
Preface vii
11
(Harper Collins Publishers, 1995).
12
See, for example, the views expressed by leading genetic scientists such as Sulston and Ferry,
The Common Thread (Bantam Press, 2003); Watson, DNA: The Secret of Life (Random House,
2004); and those of commentators on the possible impact of the science: Fukuyama, Our Posthuman
Future: Consequences of the Biotechnology Revolution (Profile Books, 2002).
(A) LLew&Adcock Prelims 18/7/06 09:59 Page vii
on European provision although it has to be understood that this must, ulti-
mately, be looked at against international trends and practices.
In writing the book we have been greatly assisted by organisations such as the
UPOV Office, the Community Plant Variety Rights Office, the European Patent
Office, national plant variety rights and patent offices, organisations represent-
ing the interests, scientific and legal, of plant breeders, and the companies who
are engaged in the research itself. In particular we would like to thank the
following individuals who, over the years, have provided invaluable guidance
and advice, John Ardley, Bart Claes, Deryck Beyleveld, Julyan Elbro, Jose
Elena, Barry Greengrass, Joel Guiard, Bart Kieweit, Bernard Le Buanec, Peter
Odell, Tim Roberts, Rene Royon, Bubpha Techapattaraporn, Roger Turner,
Geertrui van Overwalle, Roger Walker and Sue Wigzell. We are also very grate-
ful to all the plant breeders who participated in the diverse aspects of the EU
project—they are unfortunately too many to mention, but we thank them all
unreservedly.
Our biggest thanks go to those who, with us, ran the EU-funded Plant
Intellectual Property (PIP) project, the project team Antoine Alegre de la
Soujeole, Jean-Louis Talvez, Marc Lecrivain, Fintan Moran, Abdullah Sayegh,
Geertrui van Overwalle, Martin Ekvard, Rosa Manjon and Alexander Krefft.

Anyone who was involved in the PIP project will know that there was one per-
son above all who made the whole project succeed and that was Marie-Josee
Goode. As the third member of the Sheffield Triumverate she was responsible
not only for the smooth running of all aspects of the project, but also for mak-
ing it the most enjoyable experience imaginable. It is impossible to express our
gratitude to her or our delight in having made such a great friend.
We owe an especial debt of gratitude to Richard Hart both for his belief in the
value of this project but also for his patience (not least when the authors took a
decision to delete the first final draft and rewrite from scratch).
Finally we would not have been able to write the book without the support of
Rob and Diane. They have borne the brunt of our forays abroad, obsession with
plants and bits of plants, the highs and lows of the PIP project and especially the
trauma involved in writing it all up. Without their constant belief in our ability
to write this book, this would still be a work in progress. The words ‘thank you’
seem so small and yet mean so much and we hope they understand the depth of
our gratitude and love. We dedicate this book to them.
As ever, responsibility for the contents of this book remains our own.
viii Preface
(A) LLew&Adcock Prelims 18/7/06 09:59 Page viii
Contents
Preface v
Table of Cases xiii
Table of Legislation xv
Chapter 1: Defining the Territory 1
I. Introduction 1
II. Defining Europe 3
III. Defining the Property Right 8
IV. Are Both Intellectual Property Rights? 24
V. Defining the Science 37
VI. Key Policy Makers 47

VII. Use of Other Intellectual Property Rights 49
VIII. Intellectual Property in Practice 50
IX. Conclusion 69
Chapter 2: Plant Protection Rights: International Influences 75
I. Introduction 75
II. An Overview of US Plant Protection 77
III. An Overview of the TRIPs Agreement 101
IV. Conclusion 132
Chapter 3: The Emergence of European Plant Protection:
The Route to UPOV
135
I. Introduction 135
II. European Plant Property Protection in the Early 20th Century 136
III. Plant Property Provision in the 1950s 139
IV. The History of UPOV 142
V. The UPOV Convention 151
VI. General Concerns over the Convention 196
VII. Conclusion 198
Chapter 4: The Council Regulation on Community
Plant Variety Rights
201
I. Introduction 201
II. The Objectives of the Regulation 204
III. The Regulation 207
(A) LLew&Adcock Prelims 18/7/06 09:59 Page ix
IV. Key Issues 218
V. Conclusion 244
Chapter 5: The European Patent Convention—
General Practice
247

I. Introduction 247
II. The Paris Convention and the Patenting of Plant Material 248
III. The History of the EPC: The Strasbourg Convention 251
IV. The European Patent Convention 257
V. Conclusion 286
Chapter 6: The European Convention—the Article 53(b)
Exclusions and Post-grant Issues 289
I. Introduction 289
II. Article 53(b) 289
III. EPO Policy and Practice Regarding Genetic Resources and
Traditional Knowledge 321
IV. Post-grant Issues 323
V. EPO Developments in Context 334
VI. Conclusion 337
Chapter 7: The European Directive on the Legal
Protection of Biotechnological Inventions
341
I. Introduction 341
II. The Road to Adoption 344
III. Directive 98/44 364
IV. The European Commission’s Report on the Development
and Implications of Patent Law in the Field of Biotechnology
and Genetic Engineering 387
V. Other Related EU Legislation 392
VI. The Response from Industry 393
VII. Conclusion 394
Chapter 8: The Views of European Plant Breeders 397
I. Introduction 397
II. Assessing the Views of Plant Breeders 397
III. Conclusion 453

Chapter 9: Common Ground? 455
I. Introduction 455
II. Diversity in Function and Experience 455
x Contents
(A) LLew&Adcock Prelims 18/7/06 09:59 Page x
III. Key Issues 458
IV. Conclusion 513
Chapter 10: European Plant Intellectual Property:
Some Concluding Thoughts
517
I. Overarching European Provision 519
II. National Responses to the International Obligations 522
III. Diversity of Research and Organisation 524
IV. Broader Interests 525
Index 527
Contents xi
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xi
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xii
Table of Cases
Advanta USA Inc v Pioneeer HiBred International Inc, No.04-C–238-S 27,
27 October 2004 49
Allen, re (1987) BNA’s Patent, Trademark and Copyright Journal 638 88
Auchinloss v Agricultural & Veterinary Supplies [1999] RPC 397 488
Boehringer Mannheim (Docket No 93/960), CA The Hague,
3 February 1994 488
Chakrabarty 447 US 303 (1980) 85, 86–88, 150, 291
Ciba-Giegy/Propagating Material (Case T–49/83) [1984]
OJ EPO 112 294–99, 302
Comtesse Louise Erody (Case A–23/2002) 208, 240, 243
Festo v Shoketsu Kinzoku 122 SCT 1831 (2002) 328

Funk Bros Seed Co v Kalo Inoculant 33 US 127; 130 USPQ 280 (1947) 78
Genentech I/Polypeptide Expression (Case T–29/85) [1989] OJ EPO 275 473
Georgetown University/Pericardian Acces (T–35/99) [2001] EPOR 169 284
Harvard/Oncomouse [1990] OJ EPO 476; [1992]
OJ EPO 589 88, 281, 301–2, 307, 334, 348, 360
Harvard College v Canada (Commissioner of Patents) [2002] SCC 76 99, 138
Hibberd, re 227 USPQ 443 (1985) 85, 86–88
Howard Florey/Relaxin [1995] EPOR 541 268, 281–82, 371
ICOS/SmithKline Beecham (Patent No 94 903 271.8–2106/0630405),
22 August 2001 265–66, 268, 271, 275–76, 389
Imazion Nursery Inc v Dania Greenhouses 69 F 3d 1560; 36 USPQ 2d 1673
(CAFC, 1995) 80
JEM Ag Supply Inc v Pioneer HiBred 534 US 124 (2001) 87–88
Kirin-Amgen v Hoechst Marion Roussel [2005] 1 All ER 667 325
Klinische Versuche I and II [1998] RPC 423; [1997] RPC 623 331, 488–89
Latimer, re [1889] Dec Comm Pat 123 78
Leland Stanford/Modified Animal [2002] EPOR 2 283–84, 376
Lowell v Lewis 15 Fed Cas 1018 (CCD Mass, 1817) 95
Lubrizol/Hybrid Plants (Case T–320/87) [1990]
OJ EPO 71 295–96, 298–99, 306, 317, 374, 466–67
Madey (John MJ) v Duke University (No 01–1587) (Fed Cir, 2002) 97, 493
Microsoft (2004) 512
Monsanto Canada Inc v Schmeiser [2004] SCC 34 100, 482–85
Monsanto/Somatic Changes [2003] EPOR 327 269–70, 355, 466, 474
Monsanto v Stauffer [1985] RPC 515 331, 487
Mycogen Plant Science Inc/Modifying Plant Cells 298
Netherlands v European Parliament and Council [2001] ECR I–7079 362–63
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xiii
Novartis/Transgenic Plant [2000] EPOR 303; [1999]
EPOR 123 122, 293, 303–16, 318–19, 334, 351,

356, 372, 375, 445, 461–62, 466, 519
Nungesser v EC Commission [1982] ECR 2015 65
NV Phillips Gloeilampenfabriken (1954) 71 RPC 192 138
PMA et al v Republic of South Africa et al (High Court of South Africa
–Transvaal Provincial Division) Case No 4183/98 Unreported 112, 524
Parker v Flook 437 US 584; 198 USPQ 193 (1978) 78
Pioneer/Oilseed Brassica [2004] EPOR 421 276, 318–19
Plant Genetic Systems/Glutamine Synthesise Inhibitors (PGS)
(Case G–3/95) [1996] OJ EPO 169; (Case T–356/93) [1995]
EPOR 357 279–82, 285, 298–304, 306–7, 312,
334, 351, 359, 374, 399, 462, 466–67
Roche Products Inc v Bolar Pharmaceutical Co Inc (1984) 221
USPQ 157 (CD) (Cal) 96
Rote Taube [1970] 1 IIC 136
137, 150
Sakata Seed Corp v SVS Holland BV (Case A–17/2002) 215
Schulin v Saatgut-Treuhandelverwaltungsgesellschaft mbh
(Case C–305/00) 243–44
Sieckman v Deutsches Patent und Markenamt [2002] ECR I–11737 520
Unilever/Good Faith (GO2/97) [2000] EPOR 73 500
Wellcome Foundation v Parexel International & Flamel, Trib de
Grande Instance de Paris, 20 February 2001 331, 487, 489
Yoder Bros Ltd v Florida Plant Corp 193 USPQ 264 (1976) 78
xiv Table of Cases
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xiv
Table of Legislation
International Legislation
Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPs) 4, 10, 27, 29–30, 57–60, 66, 70, 73, 75–77, 89–90,
92, 98, 100–121, 124–25, 127–28, 131–33, 195,

201, 233, 248, 261, 346, 361, 364–66, 377, 387,
459, 470, 475, 491, 502, 504, 506–7, 509, 519–20, 522, 525
Preamble 102, 128
Pt I 8
Pt II 502
Section V 104–5, 502
Art 1 66, 102, 112, 163, 248
Arts 1–8 102
Art 2 502
Art 7 102–3, 129–30, 503
Art 8 102–3, 129–30
(2) 98, 103, 114
Art 17(3)(b) 127
Art 27 1, 23, 104, 128
(1) 23, 92, 95, 104–6, 364, 368
(2) 96, 105–8, 230, 366, 375–76, 390
(3) 96
(3)(a) 105
(3)(b) 4, 18, 23–24, 27, 30–31, 60, 103, 105, 110,
113, 115–18, 120–21, 124–25, 127, 129–30, 133,
150–51, 156–58, 197, 232–33, 290, 366, 412
Art 28 105, 470
(2) 124
Art 29 105
Art 30 97, 108–10, 114, 233, 323, 366, 503
Art 31 98, 110–14, 235–36, 323, 332, 366, 500, 503–7, 520
(j) 504–6
(l) 236
Art 33 66
Art 41 197

Convention on Biological Diversity (CBD) 55–61, 76, 102–3, 110,
117, 126, 130–31, 178, 232, 244, 322
Art 3 376
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xv
Art 8j 55–58, 61, 377
Art 16 56, 58, 61
(2) 61, 377
(5) 61, 377
Convention establishing the World Intellectual Property Organisation
1976 (Stockholm Convention)
Art 2(viii) 27
Convention for the Protection of Literary and Artistic Works 1886
(Berne Convention) 8, 125, 146
Convention on the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations (Rome Convention) 146
International Convention for the Protection of New Varieties of Plant
1961 (UPOV 61/72) 5, 7, 13–14, 18–19, 24–25, 30, 34–36,
69, 75, 80, 87, 102, 117–18, 122, 125–27, 129–30, 135–36,
139, 141–200, 201–3, 215–17, 225, 235, 245, 251, 254–57,
261, 264, 290, 294–95, 307, 312–13, 343, 345–46, 349–52,
354–55, 372, 395, 398–99, 403, 409, 414, 416, 422, 430,
435, 443, 455, 457, 494, 510–11, 522–23
Preamble 159
Art 1 122
(iv) 161
Art 2(1) 34–35, 81, 87, 147–48, 256, 312, 356
(2) 122, 160–61
Art 4 160
Art 5 175, 190
(3) 178

Art 6 19, 160, 164
(1)(c),(d) 122, 160
Art 7 180
Art 8(1),(3) 177
Art 9 168
Art 13 174
Art 14 184
(1) 179
(3),(5)(a) 216
Art 15 176, 191, 197
(2) 191–92
Art 16 176
Art 17 29, 500, 508–10
(1) 230
International Convention for the Protection of New Varieties of Plant
1978 (UPOV 78) 5, 7, 18–19, 24–25, 30, 34–36, 69, 75, 80–81, 87,
117–18, 122, 126–27, 130, 135–36, 141–200, 202–3, 215–17,
225, 227, 230, 235, 239, 245, 251, 256–57, 261, 264, 290, 294,
xvi Table of Legislation
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xvi
302, 307, 312–13, 343, 345–46, 349–52, 354–55, 359, 372,
395, 398–99, 403, 409, 414, 416, 420, 424, 427, 429–30,
432, 443, 455, 457, 464–65, 493–94, 510–11, 522–23
Preamble 159
Art 1(iv) 161
Art 2(1) 34–35, 87, 147–48, 155, 256, 356
(2) 123, 161
Art 4 160
Art 5 175, 190
(3) 178–79

Art 6 19, 164, 172
(1)(a) 164
Art 7 180
Art 8(1),(3) 177
Art 9 168, 509
Art 14 184
(1) 179
(3) 216
(5)(a) 179
Art 15 176, 191, 197
(2) 191–92
Art 16 176
Art 17 29, 500, 508–10
(1) 230
Art 37(1) 151
International Convention for the Protection of New Varieties of Plant
1991 (UPOV 91) 5, 7, 18–20, 24–25, 28, 30, 34–36, 69, 75, 80–82,
87, 117–18, 122–23, 126–27, 130, 135–36, 141–200, 201–2,
204, 206, 213–17, 220, 225, 230, 233, 239, 245, 251, 256–57,
261, 264, 290, 294, 302, 307, 312–13, 343, 345–46, 349–52,
354–55, 361, 372–73, 395, 398–99, 401, 403, 409, 414, 420,
422–23, 426–27, 429–30, 433, 437–38, 443, 447, 449, 451,
455–57, 459, 464, 469–71, 485, 493–94, 509–11, 518–20, 522–24
Art 1 123–24, 161–62, 195
(iv) 161, 290
Art 2(1) 87, 256, 356
Art 4 160
Art 5 19, 163, 207
Art 6 172, 214
(1) 173, 213

Art 7 123, 164, 180, 208
Art 8 123, 168, 209
(1),(3) 177
Art 9 123, 168, 209
Table of Legislation xvii
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xvii
Art 13 481
Art 14 181, 184, 191, 215, 518
(1) 176, 179, 215
(2) 176, 215
(3) 176, 215–16
(5) 179
(5)(a)(i) 179, 230
(5)(a)(ii) 230
(5)(b) 181
Art 15 176, 179, 191–92, 197, 225, 233
(1) 179
(1)(iii) 179
(2) 179, 191–92, 216, 230
Art 16 176
Art 17 29, 194, 500, 508–10
(1) 230
Art 30(1)(i) 195
Art 37(1) 126
International Convention on the Protection of Industrial Property
1883 (Paris Convention) 8, 10–15, 18–19, 25, 48, 75, 77, 100–1,
116, 125, 133, 135–37, 144–45, 148, 244–45,
248–51, 259, 332, 374, 455, 501–2, 504, 511, 519, 525
Art 1 248
(2) 14, 224

(3) 10, 12–14, 38, 142, 249, 456
Arts 1–12 502
Art 2 248
Art 3 248
Art 5 500–1
(2) 500
(4) 500–1
Art 5A 501
International Treaty on Plant Genetic Resources for Food and Agriculture
2003 (ITPGR) 55, 58–61, 76, 102,
117, 130–31, 178, 244, 322
Art 1 59
Art 2 123
Art 9 60
Art 12(3)(d),(f) 59
Art 13(2)(b)(iii) 59
Patent Law Treaty 2000 247, 339
Treaty on the Deposit of Micro-organisms 1977
(Budapest Treaty) 75, 118, 292, 346, 349, 386
Universal Copyright Convention 1952 146
xviii Table of Legislation
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xviii
Vienna Convention on the Law Treaties 1969
Art 31(1) 118–19
European Union Legislation
Community Patent Convention (CPC) 254, 341, 343
Arts 25–28 179, 330
Art 27 179, 330
Art 31(b) 330, 481, 487
EC Treaty 1957 511

European Patent Convention 1973 (EPC) 5–7, 34–35, 69, 72, 97,
105–6, 110, 141, 146–50, 199, 219, 223–24, 237, 245,
247–287, 289–340, 341, 343, 346–47, 349, 354,
361, 365, 376, 380, 387, 398–99, 416, 421, 423–24,
426–27, 429–30, 432–33, 435–36, 438, 444, 522
Art 52 260
(1) 263, 301, 307
(2)(a) 261
Arts 52–57 314, 320
Art 53 277, 280, 299
(a) 261, 277–81, 283–84, 287, 310, 348, 375–76, 390
(b) 25–26, 35–36, 150, 204, 221, 255,
257, 261–62, 287, 289–340, 351–52, 354, 367, 374, 456, 461
Art 54 266
Art 57 274
Art 63 392
Art 64(2) 304–5, 309–11, 314–15, 319–21, 379, 471
(3) 320
Art 69 179, 254, 259, 324, 330, 339
(1) 324
Art 83 275, 389
Art 84 305–6, 389
Arts 99–101 323
Protocol 179, 259, 324, 330, 339
Secondary Legislation
Council Dir 66/401/EEC on the marketing of fodder plant and cereal seed
[1966] OJ 125 62
Council Dir 98/44/EC on the legal protection of biotechnological
inventions [1998] OJ L213/13 6–7, 76, 97, 106, 110, 124, 153,
156, 193, 201–2, 204, 206, 218, 221, 236–37, 260, 262–63,

Table of Legislation xix
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xix
303, 307–8, 310–12, 328, 332, 335–36, 341–395, 401, 409,
411, 413–14, 416, 421, 423–24, 426–27, 429–33, 435–36,
438, 441, 444–45, 447, 455, 459, 461–62, 467, 471,
474–75, 490–91, 497, 509, 514, 516, 519, 521–23, 525
Preamble 131
Recitals 364, 366–67, 373–74, 378
Recital 9 364
Recital 10 364, 376
Recital 11 364
Recital 12 364
Recital 14 365–66, 369
Recitals 22–25 370
Recital 27 60–61
Recitals 29–32 388
Recital 30 372
Recital 31 308, 372
Recital 32 367, 374, 378, 461
Recital 34 371
Recital 36 375–76, 390
Recitals 37–45 365
Recital 52 385, 506–7
Recital 53 506–7
Recital 55 57, 61, 376–77, 385
Recital 56 377
Art 1 15
(1) 104, 368–69
Art 2 369, 373
(1)(b) 373

(2) 372–73, 467
(3) 372
Art 3 369–71, 463
(1) 369
(2) 47, 371
Art 4 372–74, 388
(1)(a) 372, 374
(1)(b) 373, 465
(2) 308, 372
(3) 367, 374, 378, 465
Art 5 369–70, 475
(3) 274, 370, 474–75
Art 6 375–76
(1) 279, 376, 390
(2) 375, 390
Art 7 377
xx Table of Legislation
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xx
Art 8 378–81, 445, 453, 472, 476–80, 482, 485, 489, 492, 515
(1) 379, 475–78
(2) 379, 476–77
Arts 8–10 485, 491, 497
Arts 8–11 485
Art 9 378–81, 445, 453, 472, 476, 478–80, 489, 492, 515
Art 10 381–83, 472, 476, 479–80
Art 11 382–83, 476, 479–80, 485
(1),(2) 383
Art 12 222, 385–86, 388–89, 449, 472, 504–7, 520
(1),(3) 505–6
(2) 505–6, 510

(4) 384
Art 13 386
Art 14 478, 485
Art 16(c) 387
Council Dir 2001/18/EC on the deliberate release into the environment
of genetically modified organisms [2001] OJ L106/1 62–64, 70–71, 229
Council Dir 2002/53/EC on the common catalogue of varieties of
agricultural plant species [2002] OJ L193 62–63
Art 7 62
Council Dir 2002/54/EC on the marketing of beet seed [2002] OJL 193 62
Council Dir 2002/55/EC on the marketing of seeds [2002] OJL 193 62
Council Dir 2002/56/EC on the marketing of seed potatoes
[2002] OJL 193 62
Council Dir 2002/57/EC on the marketing of the seed of oil and fibre
plants[2002] OJL 193 62
Council Dir 2003/90/EC setting out implementing measures for the
purposes of Art 7 of Council Dir 2002/53/EC [2003] OJL254 62
Council Dir 2003/91/EC setting out implementing measures for the
purposes of Art 7 of Council Dir 2002/53/EC [2003] OJL254 62
Dir 2004/27/EC Amending Directive 2001/83/EC on the Community
Code relating to medicinal products for human use [2004] OJL136 493
European Parliament and Council Dir 2004/48/EC on the enforcement of
intellectual property rights [2004 OJL195 244
Art 1 244
Council Reg (EEC) 1765/92 establishing a support system for producers
of certain arable crops [1992] OJL90 231, 382
Council Reg (EC 1768/92 concerning the creation of a supplementary
protection certificate for medicinal products [1992] OJL182 66, 392
Council Reg (EC) No 2100/94 on Community plant variety rights
(CPVR) [1994]OJL227 6–7, 19, 21, 24, 27, 31, 54, 85, 110, 123,

151, 153, 157–58, 162–63, 170, 176–77, 192–94, 196,
199–200, 201–45, 30–7, 332, 360–61, 368, 372–73,
Table of Legislation xxi
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xxi
381–82, 388, 398, 401, 413–14, 443, 449, 456–57,
459, 461, 469–70, 480, 485, 494, 505, 510–11, 514, 520, 523
Preamble 206, 221, 237, 511
Recitals 204
Pt 6 206
Art 1 24, 205, 218–20
Art 2 205
Art 3 205, 218–19
Art 4 205
Art 5 372
(2) 203, 207, 311, 461–62
(3) 464
Art 6 207
Art 7 203, 208, 225, 240
(2)(a) 240
Arts 7–10 207
Art 8 209
Art 9 209
Art 10 212
(1) 212, 240
(2) 212–14
(3) 214
Art 11 214, 239
Art 12 214
Art 13 215, 221, 225, 469–70, 481, 518
(1)(a) 499

(2) 215–16, 224
(4) 215–16, 224–25, 468, 474
(5) 215–16, 234, 238
(5)(b),(c) 228
(6) 225–26
(8) 215–16, 229–30, 234, 323, 366
Art 14 216, 221, 230–31, 234, 383–85, 456, 480, 514
(2) 231, 485
(3) 231–33, 243
Art 15 216, 481
(a)–(c) 233
(b) 212
(c) 212, 234
(d),(e) 234
Art 16 216, 238
Art 17 217
Art 18 217
Art 19 217
xxii Table of Legislation
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xxii
Art 29 29, 234–37, 384, 388–89, 509–13, 520
(1) 234, 237, 510
(2) 237, 510
(5)(a) 237
Art 50(1)(g) 60
Arts 55–57 209
Art 67 217
Art 92 220–21, 223–25, 464
(1) 220
Art 94 217

(1)(a) 217
Art 105 206, 217
Art 114 240
Protocols 210–11
Commission Reg (EC) 1239/95 establishing implementing rules for the
application of Council Reg (EC) 2100/94 as regards the fees payable
to the Community Plant Variety Office [1995] OJ L121/37 207, 241
Commission Reg (EC) 1768/95 implementing rules on the agricultural
exemption provisions provided for in Art 14(3) of Council Reg
(EC) 2100/94 on Community plant variety rights [1995]
OJ L121/37 230–32
Art 41 237
(1)(a)(6) 509
Council Reg (EC) 1610/96 concerning the creation of a supplementary
protection certificate for plant protection products [1994]
OJL198 66–68, 392
Recitals 1–4 68
Recital 5 67
Recital 15 68
Art 1 67
Council Reg (EC) 258/97 concerning novel foods and novel food
ingredients [1997] OJL043 62, 229
Council Reg (EC) 930/2000 establishing implementing rules as to the
suitability of the denomination of varieties of agricultural plant
species and vegetable species [2000] OJL108 63
National Legislation
Australia
Plant Breeder’s Rights Act 1994 184
s 3(1) 184
Table of Legislation xxiii

(A) LLew&Adcock Prelims 18/7/06 09:59 Page xxiii
Austria
Federal Law No 259/1970 (Patent Law) 420
Plant Cultivation Law 1946 137, 140, 250
Belgium
Law of 20 May 1975 on protection of vegetable creations 256
Law of 28 March 1984 (Patent Act) 256, 363, 421
Law of 28 April 2005 (Patent Act) 363, 421, 491, 507
Canada
Patent Act 1985
s 42 482
Denmark
Consolidated Patents Act No 781 of August 2001 423
Eire/Ireland
Intellectual Property (Miscellaneous Provisions) Act No 28 1998 424
Patent Act No 1 1992 424
Finland
Patents Act No 550 1967 426
France
Law of 14 November 1883 (Plant Protection Law) 137
Law of 27 January 1933 (Plant Protection Law) 137, 250
Law No 70–489 of 11 June 1970 256
Law No 84,500 of 27 June 1984
art 7 256
Law No 92–597 of July 1992 427
Germany
Law on the Protection of Varieties and the Seeds of Cultivated
Plants 1953 137, 140
Law on Patents 1980 429
Law on Patents 2004 474–75

Hungary
Law No XXXIII on the Protection of Inventions by Patent
Art 1 374
Art 6 374
India
Protection of Plant Varieties and Farmers’ Rights Act 2001 125–26
xxiv Table of Legislation
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xxiv
Italy
Law on Patents for Inventions Decree No 1127 of 1939 432
Luxembourg
Law on Patents for Inventions, June 1880 416
Netherlands
Patents Act 1910 433
Plant Breeding and Seed Material Ordinance 1941 137, 140, 250
Portugal
Decree Law No 16/95 (Industrial Property Code) 416
South Africa
Medicines Act 1997 113
Spain
Law on Patents and Utility Models No 11/1986 435
Sweden
Patents Act No 837 1967 436
Thailand
Plant Variety Protection Act 1999 125, 162
United Kingdom
Patent Regulations 2000 374
Patents Act 1949 194, 252, 324
Patents Act 1977 292, 324, 402, 438
s 76A(3)(f) 374–75

sch A2 374
Plant Varieties and Seeds Act 1964 20, 54, 141, 143, 402
s 38(1) 160
Plant Varieties Act 1997 508
United States
Constitution
Art 1(8) 77
Drug Price Competition and Patent Term Restoration Act 1994
(Hatch-Waxman Act) 96, 493
s 271(e)(1) 96
Inventors Protection Act 1999 (AIPA) 77
Plant Patent Act 1930 (PPA) 77–82, 85–88
s 100(a) 90
Table of Legislation xxv
(A) LLew&Adcock Prelims 18/7/06 09:59 Page xxv