What are Plant Breeder’s Rights?
Plant breeders’ rights constitute a specialised intellectual property system for cultivated plant varieties, namely, genetic resources for food and agriculture.
The International Union for the Protection of New Varieties of Plants (UPOV) promotes plant breeding activities throughout the world and gives incentives for the creation of new and improved plant varieties. It gives plant breeders exclusive commercial rights to market a new variety or its reproductive material for a period of 20 years (25 years for vines and trees). Unlike patents, the criteria for protection under UPOV are less stringent than those required for inventions. An inventive step is not required. Instead, varieties are required to be distinctive, uniform and stable to be commercially novel.
Who may apply for Plant Variety Protection?
Generally anyone who is the owner, breeder, developer, or discoverer of a unique cultivar of a sexually reproduced plant may apply. The applicant may be an individual, a public institution, or a corporation.
Benefits of Plant Breeders Rights
In Australia, the exclusive commercial rights to a registered variety are as follows:
- Produce or reproduce the material
- Condition the material for purposes of propagation (conditioning includes cleaning, coating, sorting, packaging and grading)
- Offer the material for sale
- Sell the material
- Import the material
- Export the material
- Stock the material for any of the purposes described from 1 to 6.
In the US, a grant of a patent for a plant precludes others from asexually reproducing, selling, or using the patented plant.
Protection Available
The rights are a form of intellectual property, like patents and copyrights. In Australia, they are administered under the Plant Breeder’s Rights Act 1994, and in the US under the provisions of 35 USC 161. For protection in Australia, one must show that the new variety is distinct, uniform and stable. These claims must also be demonstrated by comparative test growing, which would include the new variety as well as the most similar varieties of common knowledge. Protection in Australia lasts for up to 25 years for trees or vines, and 20 years for other species.
In the US, Plant Patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. In the US, protection lasts for 20 years from the filing date of the patent application, after which the subject matter of the patent becomes public domain.
Thailand adopted itssui generisPlant Variety Protection in 1999. The law deviates from the conventions set by the International UPOV, and uniquely adapts to the realities and needs of Thailand. It adopts a simplified approach to plant variety protection, and provides for a basic approach in the registration of local domestic plant varieties, which are assigned to local government organisations, and farmers’ groups or cooperatives in the name of the locality, rather than to individuals.
The Government of Malaysia, on the other hand, has formulated the Protection of Plant Varieties Act but this has not come into force. The Act has the following objectives:
- To protect the rights of breeders of new plant varieties
- To give recognition and protection to the contribution made by farmers, local communities and indigenous people towards the creation of new plant varieties
- To encourage investment in and development of the breeding of new plant varieties, in both the public and private sectors.
