Note of the Centre for Genetic Resources, the Netherlands on the provisions of the Standard Material Transfer Agreement in relation to patents on native traits as granted by the European Patent Office.
The Centre for Genetic Resources, the Netherlands (CGN) has adopted the terms and conditions of the Standard Material Transfer Agreement (SMTA) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) for all its distributions since March 2007. The provisions of the SMTA include rights and obligations of the provider in Article 5, and rights and obligations of the recipient in Article 6. Article 6.2 contains the following obligation:
“The Recipient shall not claim any intellectual property or other rights that limit the facilitated access to the Material provided under this Agreement, or its genetic parts or components, in the form received from the Multilateral System.”
Moore and Tymowski (2005) have interpreted this provision in their authoritative Explanatory Guide to the ITPGRFA as to mean that no intellectual property rights may be taken out over the material accessed from the Multilateral System that would limit facilitated access to the original PGRFA, or their genes or any parts thereof, in the form received from the Multilateral System (see page 93).
The European Patent Office has granted a number of so-called “patents on native traits”. The claims in such patents may include
- a plant characterized by a specific trait, wherein the plant is obtained through breeding and selection from one or more accessions held by CGN providing such trait, or
- a cultivated plant exhibiting a certain trait wherein said plant contains a genome comprising a certain sequence which contributes to such trait, wherein such sequence has been identified in a CGN accession or in the progeny of a crossing involving this accession.
The interpretation of the claims mentioned above may be that the patents cover all use of the genes encoding for the traits described. These genes have been identified in and occur in CGN accessions. As a result, in such interpretation, enforcement of a patent such as mentioned above may be in conflict with the obligations of a recipient if that recipient has accepted the terms and conditions of the SMTA in order to obtain the accession
- in which the protected trait occurs and has been identified by the patent holder, and/or
- to which the patent holder refers in the patent claims.
 G. Moore and W. Tymowski (2005) Explanatory Guide to the International Treaty on Plant Genetic Resources for Food and Agriculture. IACN Environmental Policy and Law Paper No. 57. IUCN, Gland, Switzerland and Cambridge, UK.