Friday, December 28, 2012

Believe  It Or Not, Plant Breeders Have Rights Too!

By: Nathaly J. Vermette and Juan Alberto Diaz-Wiechers

With science and technology at the forefront of our lives, chances are that in the course of your practice a client has asked you about intellectual property (IP) protection. One of the more obscure and sometimes conflicting IP rights lawyers may not know about is the plant breeder or plant variety right. Yes, plant breeders have rights too!

You may not realize it, but the little-known body of legislation addressing plant breeding plays an important role in your everyday life, from the flowers sitting in your vase to the bread, fruits, and vegetables you put on your table, the medication that helps you stay healthy—and even the fuel you pump into your car. The global expansion of agriculture has encouraged international research projects to develop new plant varieties—some for agricultural and alimentary use, some for medical and industrial use, and others simply for ornamental purposes.

Objectives of Plant Research

Consumers’ desire for more attractive, practical, and economical fruit varieties is one reason for the development of these new breeds. For example, seedless grapes or watermelons were developed simply because they are easier to consume. Other new breeds yield fruit with particular flavors, special growth patterns, or ripening characteristics that facilitate market introduction in specific seasons. Another objective of breeders is to develop crops that will adapt to unique agricultural soil and are able to survive harsh climate conditions in order to feed large populations. Other purposes for new plant breeds can be as simple as producing flowers with a distinctive color or that will flower closer to winter. Yet another reason is to increase crop yields, whether to feed the growing world population or to produce bio-fuels via genetically modified produce. The underlying objectives for plant breeding are endless.
Many research endeavors have altruistic and human welfare at their core, but the stark reality is that financial considerations make or break many projects. The process to obtain and develop plant varieties can be complex and expensive. Research and government grants, as well as funds from the private sector, are required to move plant breeding projects forward in exchange for a return on investment. Governments and other international entities have stepped in to provide researchers with intellectual property protection to give innovators and inventors market lead time, helping to recoup investments and protect breeders’ research.

Protection for New Plant Breeds

To protect research results, it is essential for scientists to secure the exclusive rights to use and market their findings in a given territory. In relation to plants, this accomplished through the registration of new plant varieties in the countries where they will be grown or marketed.
Registration of a new plant variety grants a breeder the right to exclude others from marketing and selling the new variety over a given time period (generally between 15 to 25 years, depending on the country and species), and to sue for damages in the case of infringement. In exchange for such rights, a plant’s breeders must publish the information and documentation relating to their research. Once the protection period has elapsed, the new plant variety becomes available for public use.
Because growing seasons are reversed in the northern and southern hemispheres, many enterprises choose to engage in international agricultural operations in both hemispheres to extend their growing operations year-round.
Chile boasts one of the world’s largest international gardens where many Canadian and foreign companies now cultivate plant varieties that were originally developed in similar weather conditions in the northern hemisphere. For example, fruit varieties developed in Mediterranean-like climates such as California, Spain, or Italy are known to perform well in central Chile’s climatic conditions. The same may be true for varieties developed in New Zealand, Australia, or South Africa. Foreign companies will therefore seek to protect their varieties in Chile. Conversely, Chilean companies often develop new plant varieties from original imports and may wish to protect such varieties in Chile and perhaps abroad to license for growth elsewhere.
At the other end of the spectrum, Canada offers the world gigantic and fertile planes carved out of the glacial passages of the last ice-age. Unlike Chile, Canada’s climate is not as inviting for many crops.  Notwithstanding Canada’s short growing and harvest seasons, its resourcefulness and technological advances in farming techniques have allowed this northern country to grow enough produce to become a valued player on the world’s agricultural stage. However, Canada still imports most of its produce. Therefore, contrary to Chile, plant variety protection is sought in Canada mainly to protect the commercialization and sale of a plant variety or its end products, rather than the agricultural process itself.
The United States’ agricultural productivity has more than doubled since 1948. Nearly one-half of the world’s grain exports originate in the United States, and American breeders seek plant variety protection for both the cultivating process and the end products in foreign countries.

This brief description of the very different agricultural roles played by Chile, Canada, and the United States shows that plant variety protection applies not only to the right to reproduce, develop or grow a particular variety, but also to the rights to sell such produce in a given market and to protect research.
Registration Requirements and Rights

The International Union for the Protection of New Varieties of Plants (UPOV), a United Nations organization established in 1961 with headquarters in Geneva, Switzerland, is the international body that oversees international plant breeders’ rights. UPOV consolidated its work into two different protocols (the 1978 and 1991 UPOV Conventions) that have set a framework within which member countries agree to govern plant breeders’ rights. In addition to the European Union, 63 countries subscribe to the 1978 or the 1991 UPOV Conventions.
It is important to note that, notwithstanding international treaties, national legislation grants rights only in a given national territory. Applications therefore must be filed in each country in which protection is sought. Applications filed in one country may be used, however, as a basis to claim priority for an application filed in a UPOV–member country.
Every country has its own registration requirements, procedures and rights that are graudually being harmonized as more and more countries adhere to the UPOV Conventions.  Prescribed application forms requesting detailed information, including whether or not an international priority is being claimed, and registration procedures may vary from country to country.
Generally, in order to obtain protection for plant varieties, the variety must be considered, after examination and testing, “novel,” “distinctive,” “uniform,” and “stable” to comply with internationally accepted criteria.

After a plant variety is registered, its breeder has the exclusive and enforceable right to exclude others from (1) producing the multiplying material of the variety; (2) selling, offering, or exposing that material to sale; (3) importing or exporting the material; (4) repeating the use of the new variety for the commercial production of other varieties; and (5) using ornamental plants or parts thereof that normally are not commercialized for propagation with the purpose of producing ornamental plants or cut flowers.  Such rights cover all botanic genres and species (except algae, bacteria and fungi in Canada) and in general apply to the complete plant, comprising all kinds of flowers, fruits, or seeds, or any part of the plant that can be used as multiplying material.  Developers or breeders can sue infringers to enforce their rights and recover damages.
So, the next time you bite into a luscious fruit, enjoy the scent of exotic flowers, or fill your gas tank with bio-fuel, remember, plant breeders have rights too!
For more information on and assistance with the registration of Plant Breeders’ Rights (PBR’s) we encourage you to contact a qualified and knowledgeable intellectual property attorney who can assist in the application process.

An earlier version of this article was originally published in the American Bar Association’s Tort Trial and Insurance Practice Section (TIPS) publications: VERMETTE, Nathaly J and Juan Alberto DIAZ-WIECHERS, Believe it or not, Plant Breeders Have Rights Too, ABA, TIPS, TortSource, Winter 2011, Vol. 13, No.2., and again in TIPS Intellectual Property Law Committee’s Newsletter, Spring 2011.

Nathaly may be reached at:

Andrews-Robichaud Inc.
450 rue Saint-Pierre, Suite 105
Montreal, Quebec, Canada
H2Y 2M9
Tel & Fax: (514) 499-7444

Twitter: @CanadianTMLaw
Juan Alberto may be reached at:

Vitacura 2909 Suite 902
Las Condes
Santiago, Chile
Tel. (56-2) 234-3982
Fax (56-2) 234-0290
Cel. (56-9) 84499531

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