Plant genetic resources and freedom to operate

The commonly accepted ideology of a “common heritage” for plant genetic resources came under pressure in the 1980s and totally disappeared when the Convention on Biological Diversity (CBD) was adopted in 1992. The new obligations arising from the CBD that subject access and use of genetic resources to prior informed consent and mutually agreed terms on a bilateral basis have rendered the process of access and freedom to operate very cumbersome and unpredictable. Exchanges of genetic resources have reduced considerably, except for the pre-CBD accessions in gene banks. The Multilateral System (MLS) included in the Food and Agriculture Organization International Treaty (FAO IT) on Plant Genetic Resources for Food and Agriculture (PGRFA) will facilitate access to the genera and species included in Annex I of the Treaty. It should bring stability and predictability to germplasm transfers of those crops. However, the most important part for the implementation of the MLS, the Material Transfer Agreement (MTA), is still to be completed and it will be difficult to evaluate the real impact of the Treaty before finalization of the MTA. Modern varieties protected by patents, mainly in the United States of America (U.S.A.), are not available for further research and breeding for the duration of the protection. The only germplasm freely available for further research and breeding today are commercially available modern varieties protected by plant breeders' rights. This situation could evolve in a more restrictive direction due to the development of genetic engineering and the desire of some stakeholders to have stronger protection of new varieties for the first few years of their commercial use.