ILP members may use protected varieties from other ILP members for further breeding under the non-asserts of article 8 of the Internal Regulations, if they meet certain conditions:
- ILP Members are not expected to simply ‘copy’ the patented variety. Therefore, new varieties should be “sufficiently different” from the patented original variety it was obtained from. In order to develop a “sufficiently different” variety, the following needs to be taken into account:
In case an open pollinated (OP) variety (i.e., an in-bred line variety) falls under a Variety patent, the OP first needs to be crossed with a parent that is not a variety of the patent holder; then the result of this cross should be crossed at least once more with a parent that is not a variety of the patent holder. The minimum of two crosses ensures a sufficient difference between the original protected variety and the new varieties developed under the non-assert.
In case an OP falls only under a Committed Patent the OP needs to be crossed at least once with a parent that is not a variety of the patent holder: in case of a trait, other breeders just need one cross for trait introgression into their own germplasm; after the first cross they can continue breeding without using the patent holder’s variety anymore; that’s why in this case the minimum is one cross.
In case an OP is protected both by a Variety patent and a Committed Patent, the criterion for Variety patents applies (two crosses with a parent that is not a variety of the patent holder).
In case of hybrids falling under a Variety patent and/or trait patent, doubled haploids technology or an equivalent technology, including but not limited to pedigree selection and SSD (single seed descent), should be applied to the original variety to produce doubled haploids or equivalent products.
- Before making use of the non-assert, the patent holder needs to be notified. A standard format for such a notification is available for ILP members.
The following is not allowed under both Variety patents and other patents:
- Repetitive back-crossing against a protected variety;
- The use of parent lines that are used in the production of hybrids and which lines are not as such exploited as commercial varieties. E.g. the use of inbred lines which are accidentally or unavoidable contained in a commercial hybrid seed lot is not permitted
If the conditions are met, biological material (including varieties) which is commercially or otherwise legally available for breeding purposes, may be used to develop new varieties. This obviously includes commercial varieties but could also include material that is legally obtained from other sources. However, the fact that material is legally obtained does not make it automatically “legally available for breeding purposes”. One could for example legally obtain material from a depositary institute that hold samples for the purpose of patent applications. However, additional conditions may apply to such material. Those conditions depend on the country and on the rules of the depositary institute itself. Such legislation or rules are not overruled by the conditions of the ILP. Therefore, if such legislation or rules prohibit the use for breeding, the material from the depository institute – although legally obtained - cannot be considered as “legally available for breeding purposes”. Consequently, the non-asserts do not apply to such material.
Regarding Variety patents the newly developed varieties can be freely commercialised provided all conditions of the non-assert are met. Commercialisation of a new variety covered by a Committed Patent requires a license as soon the production of propagating material for commercialisation starts; the non-assert for Variety patents does not imply a license for commercialisation under a Committed Patent.
Sometimes general terms and conditions prohibit or limit the use of a variety for the purpose of breeding and/or development. If such a prohibition or limitation is valid under the applicable national law, the non-asserts can also be used to breed with the variety concerned. General terms and conditions include valid bag tags and general conditions of sale. However, if two ILP members have concluded a specific bilateral agreement that prohibits or limits breeding with one or more varieties, the non-asserts do not apply and does not overrule this agreement.