Rebalancing the Debate About the Breeder’s Exemption in Patent Law

Innovation in plant breeding is cumulative. The breeder’s exemption in plant variety rights (PVR) law allows follow-on breeding to occur during the term of protection. However, the number of patents for plant-related inventions is rapidly increasing, creating obstacles for further breeding. This has created momentum for introducing a breeder’s exemption in patent law. This article argues that the trend should continue, especially in jurisdictions that allow for dual protection of plant varieties by patents and PVRs. There is still debate about whether patent law should adopt a full breeder’s exemption that would allow commercialisation of new plant varieties containing patented inventions. The debate has been underpinned by two assumptions. The first of these is that the main barrier to adoption of a full breeder’s exemption is the TRIPS Agreement. This article argues that the hesitations about compliance with the TRIPS Agreement are based on outdated decisions that failed to correctly apply the international rules on treaty interpretation. Secondly, it is assumed that a full breeder’s exemption in patent law would simply mirror the exemption for PVRs. This is not the case, as it ignores the emergence of the essentially derived variety concept. Therefore, a full breeder’s exemption in patent law would need to find support from other areas of international law.