EXHAUSTION OF RIGHTS (Hansard, 26 November 1997)

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

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this, it will be convenient to discuss Lords amendment No. 6.

§ Mr. Rooker
The purpose of the amendments is to correct the drafting of clause 10. The breeder should be able to exercise rights only once in a cycle of propagation. If a farmer buys wheat seed to produce milling wheat, the breeder's right should be exhausted at the point of sale of the seed. The initial propagation to produce the commercial crop will be authorised in the sale, and the breeder has no rights over the subsequent crop of milling wheat. The breeder's right will not be exhausted, nor will he have authorised any propagation after the initial propagation.
In other words, the breeder's right is not exhausted where there is further seed production. If, for example, certified first generation wheat seed is sold and used to produce certified second generation wheat, the breeder's right applies to the second generation seed. The amendments ensure that clause 10 accurately reflects that position, as it did not when the Bill was before the House.

§ Mr. Paice:
May I press the Minister on that point, because it seems that what he just said, which was close to what appears in the notes on clauses, appears to contradict the answer that he gave to me on Lords amendment No. 1? He just said that if a breeder sells seed to a farmer for the production of milling wheat, the breeder's right is exhausted at that point as long as it is used for the production of milling wheat. If the farmer reuses it to breed CI second generation seed, it is not exhausted, but the Minister made it clear, and I quote from the notes on clauses: The breeder's right does not extend to the product of the seed, i.e. the milling wheat.
However, a few moments ago, on Lords amendment No. 1, the Minister said that the right did extend. I cited the example of oil. He made it quite clear that the right did extend in extremis—I think that the phrase that he used was "a last resort"—to oil in that context. I apologise for pressing the Minister, but the debate has created the question whether the ultimate product carries that liability.

§ Mr. Rooker
I can only repeat—probably at a slower speed—the second paragraph that I just placed on the 1048 record. The hon. Gentleman is right to raise this issue. It is fairly complex, and in some ways esoteric, but it is very important to the breeders and farmers involved. These are draft corrections designed to clarify. The breeder's right will not be exhausted. Nor will he have authorised any propagation after the initial propagation. In other words, the breeder's right is not exhausted where there is further seed production. If, for example, certified first generation wheat is sold and used to produce certified second generation wheat, the breeder's right applies to the second generation seed, but not if it was to produce milling wheat.

§ Mr. Paice
I understand exactly what the Minister has just said, but I am sure that if he reflects he will find that at odds with what he said earlier, because he said quite clearly that the right could apply in the earlier example of the issue of oil as a matter of last resort. That would imply that, in the case of milling wheat, if the breeder had not been able to get his rights before then, they would still lie on the milling wheat. I must press the Minister to be a little clearer about what appears to be a clear contradiction between the answers that he has given on these two amendments.

§ Mr. Rooker
I have obtained further clarification, for which I am extremely grateful. The point is that the breeder's right does not extend to the production of the seed, but if there has been illicit propagation—part of this is the policing process—and the breeder has not had the opportunity to exercise his rights, he may do so later, but only if illegal actions have taken place at earlier stages.