Facts about varieties: propagation, patents and revenues

Many people are curious to know the answers to questions such as ‘How are varieties protected?’ ‘What happens to the money generated by grower's rights?’ and  ‘Does PPO use genetic manipulation techniques to create new mushroom varieties?’ This article will try to provide the answers.

By Anton Sonnenberg, Expertise group leader, PPO

Breeding or propagating new strains is a costly and time-consuming business. Companies that invest in breeding naturally want to see a return on their investment in the form of revenues received when a new product is launched on the market. Just like with new industrial products, investors can protect their new strains with a patent awarding them intellectual ownership of the product. The funding invested in developing the product can be recouped via sale of the proprietary rights or by granting licences for its use. It is very important to protect new products properly to prevent illegal copies being made for which no licence agreement has been reached.

How can products be protected?

The problem of bad protection of intellectual ownership of varieties has long been recognized internationally. To address this issue the UPOV (Protection of New Varieties of Plants) was founded in 1961. The objective of this intergovernmental agency -with its headquarters in Geneva - is to ensure that all affiliated states recognize that propagation or breeding produces new products that must be protected by an intellectual proprietary right. Part of the UPOV’s mission emphasises that an effective system of plant variety protection serves the interests of breeders and encourages the development of new varieties. 36 countries, including the EU member states and the USA ratified the convention at the time. China recognized and adopted the convention in 1999.

The protection of varieties is not organized uniformly all over the world. The systems in the two major regions of Europe and the USA already differ, for example. In Europe protection is arranged via community plant variety right. The head offices are located in Angers, France. Varieties are filed for application there, and subsequently registered for all EU member states. A plant variety right is only awarded if the new variety complies with three special criteria: distinct from existing varieties, uniform and stable (the so-called DUS-criteria: Distinct, Uniform and Stable). Compliance is tested during a period of trial cultivation. Afterwards the plant variety right will be granted with a validity of 25 to 30 years. When the application is filed an interim patent is granted, which is converted into a definitive patent if testing is completed successfully.

In the USA varieties can be protected via a Plant Patent. To obtain registration for a variety it must be described as fully as possible, so the authorities can judge if the variety really is new or not. This description is the sole method used by the US Patent and Trademarks Office to assess whether a variety will be considered for a Plant Patent or not. No trials are carried out. Tests can be carried out at a later date if a breach of patent is reported. The patent is valid for 20 years.

The first hybrid

The PPO research unit filed for grower rights in the Netherlands for two mushroom varieties. These were the very first hybrid mushrooms strains launched on the market. The varieties were tested and complied with DUS-criteria. Rights were granted accordingly. Just six months after these new hybrids appeared, other new mushroom hybrids were introduced. They bore an incredible resemblance to the first hybrids and strong suspicion existed that they were in fact copies.

A drawn out legal procedure, started to contest this breach of grower's right, failed however to result in the variety being banned. Mushrooms only have a very limited number of distinguishing features and are consequently very difficult to describe. This process is far easier with many other types of plants. In addition, the visible characteristics of mushrooms vary from crop to crop, so the few traits may still differ each time and are difficult to use as a standard. At that time there were also no law courts specialised in dealing with this type of dispute.

In the meantime more reliable methods have been discovered. These techniques use DNA testing to compare the genetic make up of the various varieties. DNA remains constant under all circumstances for a particular variety, so cultivation methods have no influence. Tests subsequently run on the mushroom varieties that were the subject of contention at the time later proved that the new varieties available on the market following the introduction of the first hybrids, were in fact copies. In the intervening period the patent on the first hybrid has expired and the use of these methods to describe varieties is still not accepted.

Genetic fingerprinting shows that all current hybrid mushroom varieties are closely related to the first hybrid. The genetic diversity is actually quite restricted. Not a sound state of affairs, particularly if new diseases occur.

Within the UPOV, working parties have long been involved in comparing methods that can be used for better protection of varieties. Two years ago, PPO raised the issue of mushrooms with the UPOV. The problem has been recognized and placed on the agenda. The solution is not yet in sight however, at this stage of the proceedings discussions about which method to use are still on-going. Once a consensus on the subject has been reached, the proposal will be presented to all the associated countries. Members must then decide whether the proposal can be added to the existing convention as an amendment or if a new convention must be drawn up. A procedure that seems destined to take quite some time yet.

Licence revenues

In spite of leaky protection of varieties, revenues were obtained from licenses granted for the first mushroom hybrids. These funds, received from about 1980, were spent on the running costs of PPO. The State received any surplus funds over at the end of each year. At the time Bromyc was founded, a full daughter of CNC, to secure licence fees entirely for PPO for investment into research benefiting the entire sector. Bromyc collects the licence fees and allocates the funds for research.

The agreements valid at the time between the State/PPO have recently been incorporated into a new contract. This revised contract between PPO (WageningenUniversity) and Bromyc more accurately outlines the allocation of licence fees. When PPO took over the activities of the experimental station, the sector ensured all existing agreements were adopted as well. One of these agreements states that Bromyc has the first option on all varieties created by PPO.

Genetic manipulation?

PPO has not developed a single variety using genetic manipulation and has no current plans to do so. PPO can also state with a probability bordering on certainty that there are no varieties on the world market resulting from genetic manipulation or more precisely genetic modification.

Using genetic modification techniques, DNA segments that code certain characteristics are isolated and spliced from one variety into another. New characteristics can be virtually instantaneously introduced into a variety in this way. This technique can also be used to transfer DNA from one type of organism to another. This is impossible via natural methods. One of the most famous examples was the introduction of a human gene into the genetic make up of the bull Herman. There is huge public opposition to this form of genetic engineering in particular. There are numerous pros and cons for this process - too many to investigate in the space of this article.

PPO employs modern means to speed up classic propagation and breeding techniques. So-called molecular markers are used, a technique which maps various segments of genetic material. This technique is used to determine which markers will be inherited with which characteristics. At laboratory level it’s possible to predict which progeny will inherit the required traits. This eliminates the need for trail cultivation and saves considerable amounts of time and money. PPO uses classic techniques such as crossing and isolating spores aided by modern technology.