January 2003

Kees van Ettekoven
Managers, Variety & Trials
Naktuinbouw
The Netherlands

After a degree in horticulture, Kees van Ettekoven joined NAKG (now Naktuinbouw) in 1975 in the department of variety registration. He is now heading the Varieties & Trials department of Naktuinbouw and responsible for all testing facilities and for all tests and trials for variety registration, Plant Breeders’ Rights and inspection. Kees van Ettekoven is current chairman of the UPOV technical working party for Vegetables, chairman of the ISF pathogen codification working group and a member of the ISTA nomenclature committee. He assists the Dutch government in meetings at the level of the European Union on technical legislative matters and participates in EU expert missions to advise the new candidate Member States.

Overview of the structure and activities of Naktuinbouw

Naktuinbouw is the Netherlands Inspection Service for Horticulture. As an inspection service, Naktuinbouw is responsible for controling the quality of propagating material on the market. Naktuinbouw inspectors visit the companies to control the processes and take samples that are tested in the Naktuinbouw trial fields and in the Naktuinbouw laboratories. The quality criteria are defined in the European Union (EU) marketing directives which, in turn, are incorporated in the Dutch Plant and Seed law and the rules & regulations of the Naktuinbouw.
Naktuinbouw is a foundation, an independent non-profit organisation under the responsibility of the Dutch Ministry of Agriculture, Nature Management and Fisheries.
As the horticultural sector in the Netherlands is leading in the world, the quality requirements are of a very high standard. Naktuinbouw follows these standards and has highly skilled personnel and first class testing facilities.
The laboratory and trials departments are testing samples on behalf of the inspection departments. Naktuinbouw is the Netherlands' ISTA laboratory for horticultural seeds.
Naktuinbouw is also Europe’s most important testing authority on the DUS tests of new vegetable varieties for inclusion in both the Dutch national and EU obligatory variety list as well as both the Dutch national and European Plant Breeders’ Rights.
Upon request, Naktuinbouw also carries out a number of services.
For the Varieties & Trials Department, these are field tests on varietal trueness and identity, disease resistance tests, testing for suitability of denominations, and - a recent development- Naktuinbouw Variety Tracer, in which we use the unique combination of independent sampling, field tests and DNA fingerprinting to help companies prove infringement cases.
In the laboratories we offer a wide range of disease tests on seed and plant lots, we test for viruses, bacteria and fungi. We also test soil samples for nematodes and fusarium. We conduct seed quality (ISTA) laboratory tests on germination, purity, moisture etc.

Naktuinbouw serves more than just Dutch companies

Naktuinbouw has always been a very industry-oriented organisation. It is only in close cooperation with the industry that we can improve the quality.
Therefore, seed companies feel at home at Naktuinbouw, they know that their problems are recognized and understood, and that together we can find solutions to these problems. We prefer short lines of communication and always try to avoid bureaucracy.
Not only Dutch companies appreciate this, but also foreign companies.
This together with the full package of services that Naktuinbouw can offer ensures that many companies find their way to Roelofarendsveen, where our offices are located.

The management of Plant Breeders’ Rights

The core business of any seed company lays in its varieties. Millions are spent on breeding new, improved varieties to meet the challenges of modern horticultural production. The protection of these varieties is necessary to ensure that the income generated from these improved varieties will return to the owner, thus enabling him to invest in further improvements.
Fortunately, the concept and practice of Plant Variety Rights Protection is spreading in the world. Through the WTO agreements, the recognition of property rights has been introduced worldwide. UPOV, the international organisation on Plant Variety Rights Protection, has welcomed many new member states in the past few years, a trend that is expected to continue. Key countries such as the Peoples Republic of China and India are now members of UPOV and are implementing Plant Variety Rights Protection. A significant development is the creation of the European Community Plant Variety Office that governs the Plant Variety Protection in the whole of the European Union.
Another important development is the renewal of the UPOV Convention, in which the introduction of essential derivation and the extension of the scope of the protection up to the end product have greatly strengthened Plant Variety Protection.
With these developments, instruments have been created to ensure proper protection. The challenge for the future will be to develop tools with which possible infringement cases can be traced, and, once such cases are identified, court cases can be initiated and the proof of the infringement can be established.

Tracing possible infringement

Identifying possible infringements of Plant Breeders Rights is best done by the companies who are holders of the Rights. These companies will notice in the marketplace when material is introduced that resembles their varieties.
Attempts to create an organisation that actively polices the world to find possible cases of infringement have had limited success. Besides the logistical problems of finding such material, there are scores of legal issues that make policing by third parties difficult.

Enforcing Plant Breeders Rights: morphology or DNA fingerprints

Nowadays, we do not solely rely on morphological methods to prove infringement. Such methods are time consuming, heavily dependent on the environment, and only possible if propagating material is available. Furthermore, it is sometimes difficult to uphold a morphological report in court.
The options offered by DNA technology have therefore been welcomed. These methods are fast, independent on the material used, and independent from the environment.
Why then not solely depend on DNA techniques? Well, even these methods have their limitations. Besides being expensive, their main drawback is that so far it is not yet possible to distinguish a mutant from his original variety in cases of a so-called "point mutation". You can imagine the problems in a court room if one party, on the basis of two identical DNA fingerprints, claims two ‘varieties’ to be the same, and the other party shows the material, one with a pink flower and a red mutant.

DNA and Morphology, the best of two worlds

In Naktuinbouw Variety Tracer, we have combined the available techniques in such a manner that watertight cases can be presented. Not only do we combine morphology with DNA techniques, but we also add the sampling as an important element. If you can convince the court but fail to prove the relationship between your results and the material on the market, the court will still rule against you.
Therefore, Variety Tracer is for us a combination of elements, starting with an intensive investigation of the problem: what is the problem? is Plant Breeders Rights valid in the country where the infringement takes place? what legal system are we dealing with? is the other party hostile or can we expect co-operation? can samples be taken? etc.
Once all these elements have been established, the sampling can take place, the material can be included in field trials, and the DNA test can be done. Finally a full report is produced with sufficient content to convince the opponent and, if necessary, the court of law.

The European Catalogue

The countries of the European Union live together in a single market. There is free trade between the Member States, even for seeds and plants.
To ensure transparency, it has been decided that vegetable varieties may be marketed in the whole European Union provided they are tested on Distinction, Uniformity and Stability in at least one of the Member States.
Varieties thus tested are included in the National List of the relevant Member State. All National lists are brought together in the Common Catalogue of vegetable varieties, the European List.
This system also applies for agricultural seeds.

Management of the European Catalogue

The Common Catalogue is managed by the European Commission. Upon a notification from the Member State that has admitted a variety, that variety is included in the Common Catalogue and this fact is published.
Breeders are free to decide in which country they apply.
For vegetable varieties, the majority of applications is done in the Netherlands at Naktuinbouw. France and Spain are also important countries in this respect, whereas the other countries play a less important role. 

Advantages and disadvantages of the European Catalogue for the breeders

For seed companies, this system of Common Catalogues has advantages and disadvantages.
The major advantage is the free marketing. No hassle at the border, no duplicate application if you want to sell a variety in another country. Also this system of compulsory listing works as a protective measure. If somebody gets his hands on one of your varieties, it is very difficult to sell that variety under a different name in the European Union because that variety will have to be tested and, normally, this test will show that the material is not distinct from the original variety and will be rejected.
The major disadvantage is the time it takes to test the variety. To overcome this, there is a system in place that allows the marketing of limited quantities of varieties that are not yet listed. Naturally the costs involved in this listing process are also a disadvantage, as are the strict denomination rules that are imposed.

Enlargement of the European Union

In 2004, the 15 countries of the European Union* will welcome 10 new Member States: Estonia, Latvia, Lithuania, Poland, Hungary, Czech Republic, Slovakia, Slovenia, Malta, and Cyprus. In 2007, two more countries will follow: Romania, Bulgaria.
From the day of their accession, these countries will have the same rights and duties as the present Member States.
This means that the National Catalogues of those new Member States will be incorporated into the Common Catalogues and the free marketing of seed will cover 27 countries. For most of the new member states, this will mean a huge change from the not so distant past when most of them had socialist, state-controlled economies.
For the seed companies, the enlargement has many advantages. As most of the new Member States currently have their own compulsory registration systems, a new variety has to be registered in each country where it is intended to be sold. With the enlargement, registration in one of the 27 Member States will be sufficient.
Also the Community Plant Variety Rights system will cover all Member States, thus providing a wider protection with only one single registration.
*(Finland, Sweden, Denmark, Germany, The Netherlands, The United Kingdom, Ireland, Belgium, Luxembourg, France, Spain, Portugal, Austria, Italy and Greece)

More information about Naktuinbouw is at www.naktuinbouw.nl 
Kees van Ettekoven can be reached at c.v.ettekoven@naktuinbouw.nl 

Sponsored by Jondle & Associates P.C. - Specialists in Intellectual Property Law