FAQ

Short answer:

• The founding members of the ACLP are convinced that this platform has potential to benefit the European society by ensuring that patented traits that bring improvements in agricultural crop productivity and sustainability through plant breeding, can be made available to all European breeders, long before the expiration of the patent rights that cover them.
• The platform can bring relevant innovation to European farmers and with that can help meet the objectives of the Green Deal, and the Farm to Fork strategy of the EU.
• It supports transparency and easy access to patented traits.

More elaborate answer:

The purpose of the ACLP is to enable broad access to innovation in plant breeding by guaranteeing access for its members to patented traits in agricultural crops, including those developed by new genomic techniques (NGTs), present in commercial varieties on the open market in the ACLP territory. The ACLP intends to be a collaborative source for plant breeding innovations.

In particular, the ACLP aims to ensure that its members will:

• provide breeding rights (including the right to use markers for identification of traits) for patented traits contained in commercial varieties available on the open market in the ACLP territory by providing a contractual, uniform limited breeder’s exemption across the ACLP territory which doesn’t exist to date;
• with regard to patented traits: commit to grant commercial licenses to other members so they can commercialize the new varieties resulting from that investment in breeding without delay;
• commit to enter data in the Euroseeds PINTO database to ensure transparency about commercial varieties available on the open market in relation to patented traits in the ACLP territory.

Key expected outcomes:

• Traits developed using NGTs and other modern plant breeding methods are promoted and available on fair conditions.
• The development of novel plant varieties is promoted and enabled by information and rights provided under the ACLP to its members.
• Technology transfer is sped up by making it easier for the members of the platform to access relevant traits and utilize those.

The ACLP intends to be a collaborative source for traits resulting from plant breeding innovation, and as such it aims at enabling access to such innovation for seed companies of all sizes, ensuring that European breeders will be able to continue using commercial varieties for breeding, using certain tools to track presence of patented traits. Important benefits to emphasize are:

• the guaranteed and accelerated access to, and freedom-to-operate (FTO) for, breeding with all varieties that are commercially available on the open market in the ACLP territory and that contain patented traits from ACLP members, and for maintaining such traits in progenies; thereby minimizing transaction costs to obtain a commercial license;
• the guaranteed FTO for commercialization in the ACLP territory of member traits contained in newly bred varieties.

Furthermore, some special considerations for small companies have also been built into the system such as free membership to the ACLP during the first 5 years after the incorporation of the platform and a special legal assistance service.

It is worth noting that by joining the ACLP, international agricultural companies are actually giving up their discretionary right to license their IP. At the same time, it is also worth underlining that for smaller companies, apart from eventually paying a membership fee, there are only benefits in joining the ACLP compared to the status quo.

Some voices from ACLP founding members:

“Together with several major potato breeders, we would like to prepare ourselves for when potato traits will be patented. Access to a simple and straightforward licensing platform would benefit potato breeders and complete the necessary transparency about genetic material in Europe.” Gerard Backx, CEO, HZPC

• “The impact of patents on cereal breeding is already emerging and prioritizes managing its co-existence with traditional plant variety rights. We are convinced the ACLP framework will become a crucial part of our toolbox to maintain access to a key resource of ALL breeders – genetic diversity.” Alexander Strube, Managing Director, Elsoms Ackermann Barley (EAB)
• “A seamless, easy access to new innovative breeding material is key for a medium-sized breeding company like ourselves. So, the ACLP helps us to keep the limited breeders exemption in a changing IP landscape.” Justus Böhm, Managing Director, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG

• The founding members of the ACLP are convinced that this platform has potential to benefit the European society by ensuring that patented traits that bring improvements in agricultural crop productivity and sustainability through plant breeding, can be made available to all European breeders, long before the expiration of the patent rights that cover them.
• The platform can bring relevant innovation to European farmers and with that can help meet the objectives of the Green Deal, and the Farm to Fork strategy of the EU.
• It supports transparency and easy access to patented traits.
• Wider choice of more diverse and innovative varieties will be available to farmers through easy diffusion of traits that will allow European farmers to compete with their counterparts at arm’s length across the globe.

Breeders’ will continue to be able to breed and benefit from the germplasm in varieties carrying a patented trait.

One straightforward answer to that is that all breeders are welcome to join the platform and thus gain access to varieties commercialized on the open market in the ACLP territory and containing patented traits from other ACLP members. For the European Union (EU), a limited breeders’ exemption exists in few Member States’ patent laws but even where it exists it is not uniform, so one of the goals of the ACLP is exactly to grant uniform access to patented traits for breeding for all members, regardless of which country within the ACLP territory they operate in. The ACLP is designed to make things simpler and easier, as well as more secure from the legal standpoint. It will ensure that all ACLP members will be able to breed with patented traits of other ACLP members that are present in varieties commercialized on the open market.

Breeders can transfer the gene to the commercial varieties in which they have interest of exploring the trait, respecting the agreements in the contract.

After a breeder has identified the patented trait s/he wishes to use on the PINTO database, s/he can benefit from the trait. There is only a need to complete a Non Assert Notification (template available on ACLP website) to inform the patent holder that its trait will be used for breeding.

It is important to note that for creating a new plant variety under the Non-Assert there is always a need to first make at least one initial cross between the donor variety containing the patented element from a member with some other material.

Otherwise, the term  “breeding” in the ACLP encompasses “the process of crossing and selection of plants with the aim to develop new plant varieties” and should be understood in its broadest sense. This includes classical crossing, genotypic selection as well as all technologies such as random mutagenesis (physical or chemical), in vitro techniques (e.g. protoplast fusion), marker-assisted selection,  eco-tilling or genome wide selection, embryo-rescue, anther-culture, single-seed descent, change of ploidy (naturally or technically), sterility systems (e.g. hybrid systems). While the use of these technologies is permitted under the ACLP, breeders should be aware that they assume all associated risks and this should be done provided they have the appropriate rights to do so.

Yes, they will. The platform will not limit or extend the farmers’ privilege as formulated in the CPVR regulation. Farm-saved seeds are out of scope for the ACLP. Under the EU legislation on patent protection for biotechnological inventions FSS usage is allowed under the same conditions as those provided by the CPVR regulation.

Once becoming a member, companies will be able to benefit from the rights provided through the ACLP. As soon as a commercial variety including a patented trait, that is in the scope of the ACLP, is sold by a member on the open market in the ACLP territory, other members will be entitled to obtain from the patent holder, a so-called non-assert that allows for breeding in the ACLP territory with the patented trait, including using its specific markers. Information on whether a commercial variety contains a patented trait and who the patented trait holder is, will be available via the PINTO database since all ACLP members will have the obligation to provide this information through PINTO.

In order to respect the specific manner how certain crop segments operate in practice, the ACLP also allows for members to obtain earlier access to patented traits through bilateral (germplasm/trait exchange) contracts or crop-specific arrangements (common in cereals or potato). Members of the ACLP will also be entitled to obtain from the patented trait holder, a commercial license for producing and selling in the ACLP territory the varieties bred under the non-assert and containing the patented trait(s).

As far as the licensing is concerned, it can take the form of the Standard License Agreement (SLA) of the ACLP. In this case, only the royalties need to be agreed between the trait holder and the interested member. If the parties cannot reach an agreement on the royalties within the prescribed period of time, a so-called baseball arbitration mechanism will ensure that the most reasonable royalty offer is adopted. The SLA may contain stewardship obligations but those will be uniform for all licensees and the licensor itself.

If both parties agree, there is also a possibility to go for a lump sum payment option in the SLA instead of a royalty.

In principle, all patented traits of ACLP members that are present in agricultural crop varieties which are commercially available for cultivation on the open market in the ACLP territory. There are few exceptions though:

• Transgenic traits are out of the scope of the ACLP, as most of the transgenic traits cannot be cultivated in Europe.
• Traits that are present in varieties that are exclusively disposed of through so-called closed loop systems. Those varieties are not to be considered as commercially available on the open market.
• Traits that the patented trait holder exclusively licensed out before joining the ACLP.

If certain traits require stewardship or regulatory measures, the standard licenses under the ACLP will list these obligations which will apply uniformly to the licensor and all its licensees and will satisfy regulatory requirements, if any, as well as industry standards. The ACLP will therefore provide an opportunity to ensure the sustainable, responsible and durable use of patented traits. It is in the interest of all stakeholders to apply regulatory and stewardship requirements in a clear, transparent, and uniform way for any particular trait within the plant breeding industry.

Under the ACLP stacking will be allowed in principle if no other (third party) rights are affected. An alternative value sharing mechanism may however need to be developed by the ACLP if more traits will be present in one variety.

Transgenic traits are out of the scope of the ACLP, as most of the transgenic traits cannot be cultivated in Europe. It will, however, provide access to traits that can be cultivated in Europe including those developed using new genomic techniques if, for the latter, the current European regulation is modified and permits their cultivation.

These technologies were primarily developed for other industries and are therefore in many cases owned by entities which are not part of the breeding communities including also universities and public institutions. Making these technologies available through a licensing platform for agricultural crops would be very complex. There is a plant breeding community interest here from the trait owners and the ACLP aims to bring together trait owners and breeders into the same platform, which is the priority right now. As a result, traits obtained by a very extensive range of technologies, including but not limited to new genomic techniques, will be made accessible to all members of the ACLP.

To meet the goals of the Green Deal and Farm to Fork strategy, more innovation in plant breeding is urgently needed for which all available means should be used and be easily accessible to the largest possible breeding community. Therefore, breeding new varieties and developing new and useful traits is key. We share the Euroseeds position on IP which supports the co-existence of all Intellectual Property Rights offering “adequate protection for each kind of inventive activities in living matter and results thereof”.

The national and European IP legislations will set forth what is protectable and under what conditions. The ACLP will not change anything in that regard. It only makes available for breeding and licensing those traits that are patented in the ACLP territory.

The ACLP is meant to facilitate access to traits from innovators in plant breeding, whether public or private, willing to join the initiative. While freedom to negotiate tailored licensing agreements will remain, the members of the ACLP will always have the option to conclude a license on the basis of a standard license agreement (SLA) which will speed-up the conclusion of such licenses at a low transactional cost. Although financial conditions remain to be negotiated between the parties, all the other components of the license are standardized. A fast, easy and independent arbitration mechanism (base-ball arbitration) is provided if the parties cannot agree, within a reasonable time frame, on the financial compensation to be paid by the licensee to the patented trait holder.

The ACLP also offers the possibility to members to conclude a lump sum-based standard license agreement, which can be put in place if both licensor and licensee agree.

The aim of the ACLP is to ensure easy and unexpensive access to patented traits from members to all members in general, and for small companies in particular. The ACLP is a platform for open innovation, a collaborative source which aims to ensure access to traits also for small companies, enabling them to continue using commercial varieties available on the open market for breeding and using certain tools to track presence of patented traits, as well as enabling them to easily obtain commercial rights in a standardized framework. As regards membership fees, free membership to the ACLP is provided for small companies during the first 5 years after the incorporation of the platform.

The ACLP is a platform for open innovation and as such, it welcomes any private or public sector organization involved in plant breeding or trait research and development of agricultural crops in the ACLP territory. So, yes, universities and research institutes, whether public or private, are welcome to join. As a further step, once operational and part of its future activities, the ACLP will also look into possibilities of developing a “marketplace” bringing together trait providers with germplasm developers.

The membership conditions are laid down in the founding documents of the ACLP. According to those provisions, the ACLP is open and accessible to all legal entities:

1. that are duly constituted and validly existing in accordance with the laws and practices of their country of origin; and
2. that have a registered office within the ACLP territory either directly or through their affiliates; and
3. that carry out – either directly or through its affiliates – an effective breeding activity and/or a research and development activity for genetic traits in an agricultural crop within the ACLP territory.

The ACLP will be a non-profit organization and the membership fees will be calculated and decided according to the operational needs of the platform. Membership for small company members however will be free of charge during the first 5 years after the incorporation of the ACLP.

In order to ensure continuity and stability within the scope of the platform, once becoming a member of the ACLP, companies will have to stay within the ACLP for 5 years.

In case of leaving the ACLP, non-asserts and SLAs received by the leaving company may be terminated by the licensor. The leaving company itself, will have some surviving obligations. All non-asserts and SLAs granted by the leaving member to other members will remain unaffected. Further on, the leaving member will remain obliged for a period of 5 years after the effective date of the termination to grant non-asserts and commercial licenses to its patented traits that are in the ACLP at the effective date of the termination to any other member that is member at the effective date of the termination of the departing member.

Novel Genomic Technologies (NGTs) are defined as techniques capable to change the genetic material of an organism and that have emerged or have been developed since 2001, when the existing GMO legislation was adopted. In particular, they comprise various so-called gene-editing techniques like CRISPR/Cas or TALEN. For more background please refer to: EC study on new genomic techniques (europa.eu)

PINTO (Patent Information and Transparency On-line) is the online database providing transparency regarding plant varieties falling under the scope of patents or patent applications, administered by Euroseeds.

Each Member of the ACLP shall regularly update PINTO (Patent Information and Transparency On-line) regarding all its varieties once commercialized containing a Patented Trait and approved for cultivation and commercialization in at least one jurisdiction of the Territory.

Access PINTO Database

A trait is phenotypical characteristic of a plant, seed or harvested material, a feature in the morphological, physiological or biochemical make-up or appearance of a plant.

A patented trait is a phenotypic characteristic of a plant, seed or harvested material that is covered by the scope of a patent or a patent application. For the purpose of the ACLP, a Patented Trait is a trait that is covered by a patent owned or licensed by an ACLP member and that is available for licensing within the scope of the ACLP. For further details please refer to the definitions in the official ACLP documents.

A patented trait holder in the context of the ACLP means an ACLP member that owns, controls or is entitled to license a Patented Trait in accordance with the principles of the ACLP.

The breeder’s exemption is the compulsory exception to the breeder’s right (also referred to as plant variety right) according to Article 15(1)(iii) of the UPOV 1991 Convention which provides that the breeder’s right does not extend to acts done for the purpose of breeding other varieties, and commercializing those other varieties (with the exception of essentially derived varieties (EDVs).

Although patent laws usually contain a research exemption they do not explicitly provide for such thing as a breeder’s exemption exists. However, some countries decided to implement in their national patent law an exemption that allows the use of biological material that is covered by the scope of a patent or patent application for breeding purposes. Such limited breeder’s exemptions exist in DE, NL, FR and CH patent laws but their scope and interpretation may differ. A similar limited breeder’s exemption has also been incorporated in Article 27(c) of the Unified Patent Court Agreement. Under any such limited breeder’s exemption, the commercialization of new plant varieties that are still covered by a patent right always require the authorization of the patent holder.

Freedom-to-operate is generally, the ability to use or commercialize a product or process without infringing another party’s valid intellectual property rights, usually patents.

A non-assert is generally an agreement between parties in which one a party agrees not to enforce a patent or other intellectual property rights it may have against the other party or parties.

SLA is the abbreviation for Standard License Agreement which is the contract with standard terms and conditions used by members within the framework of the ACLP to provide a commercial license for patented traits to other ACLP members. The template SLAs will be soon available on the ACLP website.

Stewardship generally means the conducting, supervising or managing of something. In the context of the ACLP stewardship means any practices during breeding or commercial activities or other use of the concerned plants or seeds that are set by the relevant patented trait holder for purposes of the sustainable and compliant use of any given patented trait.

In plant breeding (gene) stacking normally refers to the process of combining two or more genes of interest into a single plant. For the purpose of the ACLP, stacking refers to the possibility of combining a trait licensed under the ACLP with any other trait.

The Common Catalogue is the official list of varieties of agricultural and vegetable crops that are authorized for marketing within the European Union. The Common Catalogue is administered by the European Commission and can be consulted here: https://ec.europa.eu/food/plant-variety-portal/

 The CPVR Regulation is the EU Regulation on Community Plant Variety Rights (Regulation (EC) No. 2100/94).