Propriété industrielle et biotechnologies végétales : la Nova Atlantis . À propos de la recommandation du Haut Conseil des Biotechnologies

Over the past twenty years, the development of biotechnologies has led to significant evolutions in the legal protection for innovations regarding plant breeding. The area of objects eligible for industrial property protection expanded noticeably. Traditionally, in Europe, only the plant varieties could be protected, through breeder?s right. Since the 1990s, things have changed dramatically. With the development of genetic engineering, a choice has been made to allow, besides the protection of plant varieties, the protection through patent of a whole lot of inventions from biotechnologies. There are many reasons to this change : influence of the American model ; belief of the industrial property actors that a patent could help sustain new developments in plant breeding, especially in genetic engineering ; eagerness of the actors of plant variety innovations, who invested massively in genetically modified plants in the 1980s, to protect their creations. The directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions supported this change and contributed to develop the sector of plant genetic engineering. But the directive led to a deeper complexity of the rules that should apply to innovations, while producing socio-economic effects that were appreciated by some, and criticized by others. The former consider that these deep evolutions in innovations protection regarding seeds answered to the need to protect seeds created through biotechnologies, for which plant variety acts weren?t relevant. The latter (researchers, breeders, farmers, or the general public) feared a double phenomenon : an oligopolistic evolution of the seeds economic sectors (in 2009, the first three seeds firms accounted for more than 34% of the seeds world market, all species included), and a growing enclosure. The strengthening and extension of intellectual property rights in the area of plant innovation indeed led to a noticeable enclosure. Besides plant varieties protected through plant variety acts, a large array of innovations are protected nowadays through patent : processes, groups of plants ? genetically modified or not ?, genes and traits, sometimes native, etc. This change created technological locks-in on plant genetic resources, which constitutes a problem because these resources are the ?raw material? of breeding innovation. The enclosure can also be seen in the means available to inventors and breeders to defend their intellectual property rights : some recent legislative evolutions facilitate judicial action (for example the law on fight against counterfeiting, 29 October 2007) or offer plant variety acts holders the ability to assert their rights against farmers (see Council regulation (EC) 2100/94 on Community plant variety rights, 27 July 1994 ; and the laws of 4 August 2008 and 8 December 2011), or deal with the risks of economic possession of their breeding success by competitors. Beyond this, diverse contractual policies initiated by some breeders aim at giving those a sounder monopoly on their innovations as well (according to the practice of ?seed-wrap? or ?bag-tag? licenses). Following the Plant biotechnologies and industrial property recommendation from the Committee on Economic, Ethical and Social Issues of the French High Council for Biotechnology (HCB), on 12 June 2013, this article thoroughly looks into the relationships between industrial property and agricultural biotechnologies in the light of these changes. Firstly, we note serious risks of impediment to plant innovation. Truly, on the whole the evolution of plant varieties acts doesn?t seem to create problems. The notion of EDVs was successfully integrated and seems to produce beneficial effects. The development of ?bag-tag? licenses aimed at preventing reverse engineering however deserves particular attention, because it jeopardizes the breeder?s exemption. But the evolution of patents is the main source of worries. A series of elements could hinder breeding programmes : a proliferation of patents which are, either unknown by some breeders because of a lack of information ; or so wide that they lead to technological lock-in. The legal reach of some of these patents is uncertain, which makes it difficult to decide whether a process or a product can be freely used. The absence of breeder?s exemption, stricto sensu, in patent law, also compromises the future of breeding processes. Moreover, the many patents on plants created through biological processes or native genes and traits can constitute an additional source of blockage. This evolution in industrial property has an impact from the farmers? point of view as well. The issue of farm save seed remains a stumbling block between breeders and farmers. Obviously, a better balance needs to be found between these interests, and this could help maintain a sphere of autonomy for farmers. Finally, the development of new plant breeding techniques puts the farmers at risk of infringement (gene flow, natural presence of a patented element in a crop variety). The law must take this into account.