Issue #1 – 2021

Editorial

More than a year has passed since COVID-19 came into our lives, or to be blunt, took over our lives. We are affected by this unpredictable virus on a global scale,
but the disruption is on a personal level; the loss of loved ones, or living with post-COVID conditions. For many of us this year was a year of revelations. A year where we realized that the big great world could suddenly become so small. A year where we went from being able to travel to the other side of the globe, just because we wanted to, to a situation where we were confined to the limits of our own town. Changes of plans, cancelling of various forms of festivities and an uncertainty about what the future may bring the day after has dominated everyday life. It has also meant working from home through Zoom or Teams, and experiencing a completely different working environment that in a peculiar way includes our colleagues’ living rooms, pets and family members. At times, it has felt and still feels like living inside a big apocalyptic experiment. Reflecting back to this year and what it brought, with the hope if not the certainty that we are heading towards normality makes us wonder what we keep from this experience. Apart from constantly washing our hands, of course! It seems as we will keep that not all meetings need to be “irl”, some of the travelling could be replaced by digital alternatives. But we will above all keep how important these “irl” meetings are, to exchange ideas and debate opinions, to create and brainstorm. How much we miss chatting in the corridors during breaks, the social events at conferences, the warm handshakes and the feeling that you are in a room full of people. Networking and the need to be part of a context, in which you articipate, give and take and as a team produce something new, has been decisive during this year. And although it required more and other efforts, since the natural meeting places, meetings, conferences and coffee breaks were lost, the will to work together, to find new forms of cooperation was obvious. This is also the story of this issue of Stockholm IP Law Review, dedicated to plant intellectual property protection. It is the story of our amazing student editors in chief, Alex Miura and Riana Harvey, who have actually never met “irl”, who have worked closely with us, and with our great student editors, Pia Leonarda Riemenschneider, Anne Boender and Valentine Labaume, all situated in different parts of the world. And it is the story of the authors, who replied to our call for papers and contributed with their knowledge in topical articles. Some of these persons are old friends, others new acquaintances with which we are looking forward to a continued cooperation. You have all made this issue possible. The contacts with the Community Plant Variety Office (CPVO) and its President Martin Ekvad, initially focusing on the contribution to Stockholm IP Law Review, has grown considerably to a formal co-operation agreement according to which students at the Master of Laws (LL.M) programme in European Intellectual Property Law at the Stockholm University Department of Law will be given the possibility to apply for internship at the CPVO, as well as the CPVO will be actively involved in the activities of the Master Programme. It has further led us to yet a new partner, CIOPORA (the International Association of Breeders of Asexually Reproduced Horticultural Plants). Even this co-operation has proven to be multilayered, through which CIOPORA will be involved in the activities of the Master Programme, and where students of the Programme will be able to follow the CIOPORA course modules for a reduced fee. The articles of this issue concern different aspects of protection and exploitation of plant innovation. Martin Ekvad gives an overview of the CPVO and its setting in the legal system of EU plant variety protection. He also shares further insights into the work of the CPVO and personal reflections on plant innovation in the interview of this issue. Further, Edgar Krieger describes the UPOV legal system, the fundamental international convention in the field of plant protection. In her article, Pia Leonarda Riemenschneider analyzes the well-known Pepper case against the background of legal conflicts regarding the patent protection of biological breeding, methods, resulting from the amendment of Rule 28(2) of the European Patent Convention’s Implementing Regulations. Roberto Manno discusses developments in CJEU case-law related to the increasingly important field of Plant Variety Rights, while Marco Baldassarra and Sabino Sernia analyze the impact of shrink-wrap licenses and exhaustion in the same field. Finally, Isabella Katz Migliori brings up the international perspective by providing for a discussion on plant-related IP rights in Brazil. Finally, it seems only natural that an issue published under a pandemic would have a public health and pharma perspective. Iyad Al Khatib discusses points of collision between patent rights and the right to public health at times of pandemics, while Åsa Hellstadius and Håkan Borgenhäll discuss recent case-law from the The Swedish Patent and Market Court of Appeal concerning the possibility of destruction of patent protected products lawfully manufactured outside Sweden. Next issue of the Stockholm IP Law Review will come in December 2021, in what we hope to be a post-pandemic time.

Åsa Hellstadius & Frantzeska Papadopoulou

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Interview with Martin Ekvad

– By Riana Harvey, Alexandre Miura, Pia Leonarda Riemenschneider –

ABSTRACT

Martin Ekvad is President of the Community Plant Variety Office (CPVO) since 2011. Prior to his elevation to the position of President, he held the position of Head of the CPVO Legal Unit from 2003. From 1996 to 2003 Mr. Ekvad worked as a lawyer (Advokat, Member of the Swedish Bar Association) in the law firm Linklaters, in Brussels and in the law firm Magnusson Wahlin Advokatbyrå, in Stockholm. Our Editors had the pleasure of talking with him and getting his opinion on a broad range of topics, from recent case law developments, the current state of Plant Variety Rights (PVR) in the EU, a discussion on the challenges in the registrability of PVRs, and also advice for young practitioners.

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The CPVO and the EU-wide system of plant variety protection

– By Martin Ekvad –

ABSTRACT

The President of the Community Plant Variety Office (CPVO), Martin Ekvad, provides a short presentation of the background to the legal framework of the EU PVR system, the role of the CPVO and the future challenges and possibilities for the system as such.

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Plant Variety Protection under the UPOV 1991 Act

– By Dr Edgar Krieger –

ABSTRACT

The UPOV 1991 Act is widely considered a key milestone in establishing a sui generis system of Plant Variety Protection across the world. In 2021, thirty years after its adoption, 60 countries have joined the 1991 version of the UPOV Convention by depositing their instruments of accession that fulfil the minimum of the 1991 Act’s requirements. While progressive for its time, the UPOV 1991 framework may no longer accommodate the present-day developments of the global horticulture. Following the massive globalization of horticultural value chain, the UPOV system may benefit from a critical evaluation from the contemporary breeders’ perspective that CIOPORA represents. This article will highlight the main provisions of the UPOV 1991 Act and pinpoint the loopholes that may have detrimental effects on protection of breeders’ rights, hence jeopardizing the incentives for innovation.

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Who owns the pepper?

– By Pia Leonarda Riemenschneider –

ABSTRACT

The present article focuses on the recent decision of the Enlarged Board of Appeal in the Pepper case. It examines the impact of the amendment of Rule 28 (2) of the EPC Implementing Regulations on the scope of the exclusion for essentially biological processes for the production of plants in Art. 53 (b) of the European Patent Convention EPC. It further contains an analysis of the internal hierarchy of the institutions within the European Patent Office and focuses in particular on the question, whether the Rules of the EPC Implementing Regulations take precedence over the decisions of the Enlarged Board of Appeal. Furthermore, an assessment of the provisions of the European Patent Convention and the general principles of law should shed light on the question, whether the Administrative Council was empowered to amend Rule 28 (2) of the EPC Implementing Regulations.

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The development of the ECJ case law in Plant Variety Rights

– By Roberto Manno –

ABSTRACT

Plant Variety Rights (or Plant Breeders Rights) involve fundamental aspects of day-to-day life “not limited” to food consumption, access to biodiversity, safeguard of agriculture, incentive of varietal improvement to the benefit of society. The present article will (try to) offer an excursus of the recent developments in the EU case law, assessing the particular regime of Plant Breeders Rights, especially with regard to “traditional” rights as Patents, Trademarks and Designs, with reference to the Judgments of the General Court and the Court of Justice of European Union according to the rules set forth in the EU Regulation No. 2100/94 the International Union for the Protection of New Varieties of Plants.

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End User License Agreement (EULA) on a fruit bag: misleading to consumers?

– By Marco Lonero Baldassarra, Sabino Sernia –

ABSTRACT

Some rumors have recently outspread over a thought-provoking post on social media depicting a sort of “shrink-wrap” license agreement attached to the front of a fruit bag in the United States. As European consumers and professionals, a few questions spontaneously arise: can the above license be deemed as legitimate and, should it be the case, would it be enforceable against final consumers according to Community plant variety laws? Against this background, the paper will preliminary draw comparative views upon US and Community PVR systems, carefully touching upon the exceptions and limitations to the scope of the breeder’s rights, the doctrine of exhaustion and the implications it encompasses within the fruit supply chain, in order to finally take a position on whether or not the licensing trends as the above one may be deemed as solidly grounded from a legal standpoint, in accordance with the applicable PVR law at Community level.

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The current status of plant-related IP Rights in Brazil

– By Isabella Katz Migliori –

ABSTRACT

Brazil is recognized as having an important economic market and, also due to its biodiversity, provides countless opportunities for technological developments in several fields. In the Industrial Property arena, it may be reaching its most favorable period, since the Brazilian PTO (INPI) has developed measures to overcome the backlog of examination of patent applications and could be placed soon together with the countries that have already achieved a mature protection culture. In the agribusiness field, Brazil stands out in level of importance worldwide, and the correspondent increasing technological development has started to be accompanied by its due protection. Specifically, regarding plant-related IP rights in Brazil, plant-related technology may be protected by patent and plant varieties (or cultivars) by plant variety protection certificate. However, in order to take advantage of all the opportunities and achieve the best protection – duly reaping the fruits of the protection culture in the country, being of particular relevance to the Agribusiness field –, one must have in mind that the Brazilian IP legal framework has particularities when it comes to this matter, as well as it may be more restrictive than the legal framework observed in other jurisdictions. Thus, without the intention to exhaust each theme, the present article presents an overview on the main topics concerning plant-related IP rights in Brazil.

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Conflicts between pharmaceutical patents and access to medicine during the pandemic

– By Iyad Al Khatib –

ABSTRACT

The coronavirus pandemic has changed many aspects of life. Revising contemporary laws and legal systems is inevitable to survive the current and future pandemics. The first paramount concerns are human life and health. An associated consideration is the financing of related medical solutions inter alia vaccines, antivirals, and antiretrovirals. These issues conflict with each other in the legal space intersecting between intellectual property (IP) and human rights. Humans have the legal right to ‘access to medicine’. On the other hand, pharmaceutical industries have the right to patent their products, which unfortunately could make medicine prohibitively expensive. During pandemics, choosing to give the medicine/licenses for free sounds like the best ethical solution, but it comes with serious risks like compromising the existence of the sources of research and development (R&D) needed to prepare for future outbreaks. Therefore, a balance is needed. Consequently, more legal research is a requisite. Efforts by policymakers, practitioners, researchers, and related institutions are essential. The investigation tackles these issues on an international level, and it renders special focus on the EU in some sections. This paper locates the relevant problems that need attention, collects related provisions, and propounds recommendations.

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Destruction of patent protected products manufactured outside Sweden

– By Åsa Hellstadius and Håkan Borgenhäll –

ABSTRACT

The coronavirus pandemic has changed many aspects of life. Revising contemporary laws and legal systems is inevitable to survive the current and future pandemics. The first paramount concerns are human life and health. An associated consideration is the financing of related medical solutions inter alia vaccines, antivirals, and antiretrovirals. These issues conflict with each other in the legal space intersecting between intellectual property (IP) and human rights. Humans have the legal right to ‘access to medicine’. On the other hand, pharmaceutical industries have the right to patent their products, which unfortunately could make medicine prohibitively expensive. During pandemics, choosing to give the medicine/licenses for free sounds like the best ethical solution, but it comes with serious risks like compromising the existence of the sources of research and development (R&D) needed to prepare for future outbreaks. Therefore, a balance is needed. Consequently, more legal research is a requisite. Efforts by policymakers, practitioners, researchers, and related institutions are essential. The investigation tackles these issues on an international level, and it renders special focus on the EU in some sections. This paper locates the relevant problems that need attention, collects related provisions, and propounds recommendations.

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