Wyłączne prawo do odmiany (breeder’s right) w obszarze własności intelektualnej

Abstract

The concept of intellectual property in the legal systems of individual states is constantly expanded, also because of accession to international conventions, treaties and agreements. Primarily however, the subject scope increases steadily as a growing number of so-called intellectual subjects achieve the status of non-material property, to which exclusive rights apply. The exclusive right to a plant variety, regulated by the Law of June 26, 2003 on the legal protection of plant varieties , on grounds of a model laid down in the International UPOV Convention , is regarded an industrial property law. The breeder’s right should thus be considered a neighbouring right or one related to the rights gathered under the collective title of industrial property. The WTO/TRIPS Agreement creates an international standard of protection for plant varieties, obligating states to protect plant varieties by patents, sui generis rights or a combination of the two. The prohibition of patenting plant and animal varieties within the European Patent Convention, directive 98/44/EC on the legal protection of biotechnological inventions and domestic legislation on protection of industrial property – do not mean that the exclusion refers to plants and animals per se. Exclusion from patenting does not concern microbiological cultivation nor the effects of this which allows patent protection of inventions from the sphere of biotechnology (biotechnological inventions). It appears that the decisive factor, significant for the further development of exclusive rights to variety, is the extent of protection awarded to its cultivator, which at the same time will condition the legal situation of the variety’s user (land possessor).