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Protected Variety

Volume 301: debated on Wednesday 26 November 1997

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Lords amendment: No. 1, in page 3, line 37, leave out from ("unless") to end of line 39 and insert

("subsection (4A) below applies.
(4A) This subsection applies if, before the product was made, any act mentioned in subsection (1) above was done as respects the harvested material from which the product was made and either—
  • (a) the act was done with the authority of the holder of the plant breeders' rights, or
  • (b) the holder of those rights had a reasonable opportunity to exercise them in relation to the doing of the act.")
  • 7.55 pm

    The Minister of State, Ministry of Agriculture, Fisheries and Food
    (Mr. Jeff Rooker)

    I beg to move, That this House doth agree with the Lords in the said amendment.

    Clause 6(4) provides for the breeder's right to extend to directly made products, in certain circumstances. Basically, if a plant breeder's right has been infringed in respect of harvested material from which the product is made, and he has not been able to act against that infringement, he should be able to act against the product.

    As originally drafted, clause 6(4) came into play only if the product was obtained from harvested material by committing an act requiring the breeder's authority—for example, selling, marketing and importing. It is, however, quite possible for a product to be made from harvested material to which the breeder's right extends, without committing any of the acts that require his authority. The amendment ensures that the breeder can act against infringement of his rights in these circumstances. It also brings the Bill into line with the UPOV convention and the Community regime.

    I shall not detain the House long on this or any other amendment, but I shall raise one or two issues of concern. I realise that the Minister has already participated in a full-length Standing Committee debate this morning and is to reply to the Adjournment debate later. He is clearly earning his salary today, so I do not want to test him more than necessary.

    I am puzzled by the need for the amendment. The Minister will recall that when we considered the Bill in the summer, in the Committee stage which was taken on the Floor of the House, I pressed him particularly on clause 6(1)(h)—the catch-all phrase, as I called it—which refers to
    "any other act prescribed for the purposes of this provision."

    The Minister said that that was necessary to ensure that everything else could be covered, and he gave one or two examples, yet when Lord Carter spoke to the amendment in the other place, he said:
    "It is, however, quite possible for a product to be made from harvested material to which the breeder's rights extend, without committing any of the acts in Clause 6(1)."—[Official Report, House of Lords, 23 October 1997; Vol. 582, c. 827.]
    That is what the Minister has just said, but if that is the case, I do not understand why there is the need for the catch-all paragraph (h).

    I have a further query about the use of material derived, to which the Minister referred. I am grateful to him for arranging for me to receive the notes on the amendments, but unusually, they threw up a question that is more puzzling than the amendment itself.

    I believe that I am entitled to quote from the notes. They refer to an example of a protected variety grown to produce oil, which is used in the manufacture of perfume, although I do not think that the ultimate use of the oil is relevant. It is implied that, effectively, the oil is the end product, and it is the oil to which the breeder's rights would apply. If I have understood that correctly, it casts a very different light on some aspects of the Bill.

    The purpose of the Bill is to ensure that plant breeders' rights are protected where the plants are used for some form of propagation—whether it be vegetative, for seed or whatever—but not where the plants are sown or planted for commercial exploitation. Yet, in this example, the notes imply that, if the breeder is not able to claim breeders' rights on the sowing of the seed—the reason is not explained—somehow he would have some claim against the oil. I am somewhat confused by that point, and I hope that the Minister will be able to clarify the situation.

    8 pm

    I am not sure whether I can clarify those points now. If I cannot do so satisfactorily, I shall write to the hon. Gentleman. Hon. Members will recall that the Committee stage took place on the Floor of the House in one day. Consequently, there was no Report stage and the other place has dealt with some issues. It has provided some clarification on parts of the Bill, which is implicit in other Lords amendments.

    As to the oil issue, I can do no more than refer to the notes on clauses. The hon. Gentleman is perfectly entitled to mention those notes, and I think that it is right and proper that Opposition Members should have the same information that I received about the effects of the proposed changes. I do not seek to put those notes on the record because that would take too long and they are not strictly relevant.

    The amendment comes into play only if Ministers decide to prescribe products. The oil is the end product, but only if Ministers decide that there are grounds for prescribing the oil. Even then, they can act against the oil only if they have not had the opportunity to act at an earlier stage against the propagation of the material or the harvested material. It is a fall-back position in some ways because the material progresses through different stages before it reaches the point where difficulties may arise. If I have not made the situation as clear as I might, I shall be happy to elucidate in writing to the hon. Gentleman.

    Lords amendment agreed to.