Believe
It Or Not, Plant Breeders Have Rights Too!
By:
Nathaly J. Vermette and Juan Alberto Diaz-Wiechers
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
www.AndrewsRobichaud.com
nathalyj.vermette@andrewsrobichaud.com
Twitter: @CanadianTMLaw
Juan Alberto may be reached at:
DíazWiechers
Vitacura 2909 Suite 902
Las Condes
Santiago, Chile
Tel. (56-2) 234-3982
Fax (56-2) 234-0290
Cel. (56-9) 84499531
www.DiazWiechers.com
juanalberto@diazwiechers.com
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