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Copy of Plant Breeders Right

Introduction to Plant Breeders Rights
by

Sadananda Ajanahalli

on 27 March 2013

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Transcript of Copy of Plant Breeders Right

Plant breeding is a process that
alters the genome of a plant to
enhance its qualities as a crop Plant Breeding Importance of Plant Breeding Ensuring food security Developing practices of sustainable agriculture Protection of new plant variety There is no single framework for protection of plant breeders. While in countries like US, plant varieties can be protected under the patent system, in the majority of jurisdictions, the protection of plant varieties under the patent legislation is not permitted. Several protection frameworks related to new plant varieties exist at international, European and national level Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give them exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years. Plant Breeders' Rights Article 27.3(b) of the Agreement states that countries must "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof". Plant Protection under TRIPs The sui generis system (roughly translated as self-generating) means any system a country decides on, provided it grants effective Plant Breeders’ Rights. International Union for Protection of New Plant Varieties (UPOV) UPOV is an intergovernmental organization and not a 'treaty' as such. Countries are not obliged to join UPOV as a result of their affiliation with any other organization or the ratification of any specific treaty. Membership is purely voluntary. Each member of the organization becomes bound to the UPOV Convention. The Convention requires member countries to provide an intellectual property right specifically for plant varieties International Union for Protection of New Plant Varieties (UPOV) The plant breeder is granted a legal monopoly over the commercialization of his/her plant varieties Protection allows the breeder to try to recover the costs associated with the development of the variety The rights granted are for a specific time only (depending on the plant variety), and upon expiration of the time period, the protected variety passes into the public domain International Union for Protection of New Plant Varieties (UPOV) Requirements for Protection Novelty Novelty - A variety is new if it has not been commercialized for more than one year in the country of protection Distinctiveness Uniformity Stability Distinctiveness - A variety is distinct if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc Uniformity - A variety is uniform if the plant characteristics are consistent from plant to plant within the variety Stability - A variety is stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties International Union for Protection of New Plant Varieties (UPOV) The UPOV Convention has been revised three times. Spain and Belgium are bound by the original Convention (1961) Notable UPOV members bound by the 1991 convention are – Australia, Germany, Israel, Japan, Korea, Russia, Singapore, Switzerland, United Kingdom, and United States of America Notable UPOV members bound by the 1978 convention are – Brazil, Canada, China, France, Mexico, and New Zealand International Union for Protection of New Plant Varieties (UPOV) Main differences in the two latest conventions Requirements Protects Duration of Protection Breeder's Exemption Distinct, Uniform and Stable Distinct, Uniform, Stable, New Commercial use of reproductive material of the variety All plant varieties and products including plants that are derived 15 years from application date for most species. 18 years for trees and vines 20 years from application date for most species. 25 years for trees and vines Yes. Acts for breeding and development of other varieties are not prohibited Optional. The decision to include an exemption is dependent on each member’s national legislation. UPOV Convention 1978 1991 International Union for Protection of New Plant Varieties (UPOV) Protection Protection confers the right to exclude others from: producing or reproducing propagating offering for sale selling or other marketing exporting importing stocking the protected variety for any of the above purposes International Union for Protection of New Plant Varieties (UPOV) Exemptions Breeders' exemptions Farmers' privilege Breeders' exemption allows the breeders to use the protected varieties for research purposes and for breeding new varieties Farmers' privilege allows the farmers to use their own harvested material of the protected variety for sowing the next crop on their own farm Protection in Different Countries Plant Variety Protection Certificates (United States) Plant Breeder's Rights (Australia) Community Plant Variety Rights (European Union) A sui generis system (India) Plant Variety Protection Certificates (United States) United States is bound by the TRIPs Agreement and is also a UPOV member In the U.S. the UPOV Convention is implemented by the Plant Variety Protection Act, 1970 Changes were made by Amendments in 1994 to extend statutory protection to first generation (F1) hybrids and tuber propagated plants to bring US into compliance with the 1991 UPOV Convention Plant Variety Protection Certificates (United States) The requirements and term of this protection offered are exactly the same as those outlined in the UPOV Convention PVPC should not be confused with plant patents, which are limited to asexually reproduced plants (not including tuber propagated plants) U.S. Department of Agriculture issues Plant Variety Protection Certificates (PVPC) for qualifying plant varieties Plant Breeder's Rights (Australia) Similar to US, Australia is both a WTO and UPOV member Plant varieties are protected in Australia by a Plant Breeder's Right (PBR) under the Plant Breeder's Rights Act (1994). The requirements and term of this protection offered are exactly the same as those outlined in the UPOV Convention PBRs are generally obtained much faster than a patent due to the lack of examination and are also much cheaper to obtain Community Plant Variety Rights (European Union) Plant variety protection in the European Union is a result of the European Convention (Regulation 2100/94/EC), which is based on the 1991 UPOV Convention It was introduced in order to harmonize and streamline the method of plant variety protection available throughout Europe. The Community protection of plant varieties (CPVR) enables applicants, on the basis of one application, to be granted a single intellectual property right which is operative throughout all countries that are members of the European Union Community Plant Variety Rights (European Union) A CPVR can only be transferred or ceased within the EU Community on a uniform basis. That is, a CPVR can only be valid (or cancelled) across all EU countries, not selected individual countries The CPVR exists alongside individual European countries' national plant protection legislation as an alternative form of protection It is not possible to hold protection for the same plant variety under both the Community and a national system at the same time Where a CPVR is granted in relation to a variety for which a national right has already been granted, the national right is suspended for the duration of the CPVR. The CPVR confers protection to all 'new' botanical genera and species, including their hybrids, provided that the varieties meet the requirements as outlined under the UPOV Convention A sui generis system (India) Many developing countries have an agricultural economy that is geared towards the domestic as opposed to the export market Developing countries with such an economy want to acknowledge the rights of farmers arising from their contribution to crop conservation and development and the sharing of their knowledge on adaptive traits As a result, some developing countries have chosen a sui generis system of plant protection that is not compliant with UPOV in that it allows farmers to improve and adapt the seed in order to make it more successful in the local conditions A sui generis system (India) The Plant Variety Protection and Farmers Rights Act, 2001, is the Indian sui generis legislation The Act has 4 main features Breeders’ Rights Farmers’ Rights Researchers’ Rights Protection of Public Interest A sui generis system (India) Breeders' Rights A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability A non-novel extant variety can be registered if it conforms to the other three criteria. An extent variety is a variety available in India, which is (i) notified under section 5 of the Seeds Act, 1966; or
(ii) farmers’ variety; or
(iii) a variety about which there is common knowledge; or
(iv) any other variety which is in public domain; A sui generis system (India) Breeders' Rights On registration of a particular variety, the plant breeder has rights of commercialization for the registered variety either in his/her own person or through a designated person These rights include the right to produce, sell, market, distribute, import or export a variety, in short, full control over formal marketing. The time period of protection would be: 18 years from the date of registration of the variety, in case of trees and vine
15 years from the date of the notification of that variety by the Central Government under section 5 of the Seeds Act, 1966, in case of extant variety
15 years from the date of registration of the variety, in other cases
A sui generis system (India) Breeders' Rights Violation of the breeder's right can be construed at several levels. It applies to the variety itself as also to its packaging Infringement will be established if the packaging is the same or even similar, such that the package could appear to be that of the Breeder Anyone other than the breeder cannot use the registered name or denomination The use of the same or similar name in any way, by action or even suggestion, will constitute a violation and will be punishable A sui generis system (India) Breeders' Rights The breeders’ rights have been strengthened to the extent that if there is mere suspicion of violation or infringement, the onus of proving innocence is placed on the alleged violator Penalties can range from Rs. 50,000 to Rs. ten lakh as well as a jail term ranging from three months to two years, depending on the severity of the damage caused A sui generis system (India) Farmers' Rights The Act recognises the farmer not just as a cultivator but also as a conserver of the agricultural gene pool and a breeder who has bred several successful varieties There are provisions for such farmers' varieties to be registered with the help of NGOs so that they are protected against being scavenged by formal sector breeders The law allows the farmer to sell seed in the way he has always done, with the restriction that this seed cannot be branded with the Breeder's registered name In this way, both farmers and breeders rights are protected A sui generis system (India) Farmers' Rights The breeder cannot threaten the farmers' ability to independently engage in his livelihood, and supporting the livelihood of other farmers The Act provides farmers the right to sell (not save, not exchange, but sell) seeds. This is of pivotal importance. If the farmer were to be denied the right to sell, it would not only result in a substantial loss of income for him but far more importantly, such a step would displace the farming community as the country's major seed provider. A sui generis system (India) Farmers' Rights Apart from the right to sell non-branded seed of protected varieties, the rights of farmers and local communities are protected in other ways too. Breeders wanting to use farmers’ varieties for creating Essentially Derived Varieties (EDVs) cannot do so without the express permission of the farmers involved in the conservation of such varieties An essentially derived variety is one that is distinguishable from the initial variety, but that retains the essential characteristics of the initial variety. For example, a new apple variety developed from an existing variety. If the new variety differs from the existing variety only in cosmetic features such as leaf colour or shape, but produces fruit that is identical in shape, colour and taste to that of the existing variety, it may be considered an essentially derived variety. Any one is entitled to register a community's claim and have it duly recorded at a notified center. This enables the registration of farmer varieties even if the farmers themselves cannot do this due to illiteracy or lack of awareness A sui generis system (India) Farmers' Rights The 2001 Act seeks to ensure that breeders' seeds are of good quality, or at least the farmers are adequately informed about the quality of seed they buy The Act seeks to protect farmers from exaggerated claims by seed companies regarding the performance of their registered varieties The breeder is obliged to disclose to farmers the performance of the variety under given conditions If the material fails to perform according to this information, farmers may claim compensation from the breeding company In addition, safeguards are provided against innocent infringement by farmers. Farmers who unknowingly violate the rights of a breeder are not to be punished if they can prove that they were not aware of the existence of such a breeder's right A sui generis system (India) Researchers' Rights The Act has provisions for researchers’ rights which allow scientists and breeders to have free access to registered varieties for research The registered variety can also be used for the purpose of creating other, new varieties The breeder cannot stop other breeders from using his/her variety to breed new crop varieties except when the registered variety needs to be used repeatedly as a parental line. In that case authorisation is required. A sui generis system (India) Protection of Public Interest To secure public interest, certain varieties may not be registered if it is felt that prevention of commercial exploitation of such variety is necessary to "protect order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment" The Act also provides for the granting of compulsory license to a party other than the holder of the Breeders certificate if it is shown that the reasonable requirements for seeds have not been satisfied or that the seed of the variety is not available to the public at a reasonable price Plant Breeders' Rights Recap Protection Under TRIPs
UPOV Convention
Plant Variety Protection Certificates
Community Plant Variety Rights
Sui generis system Plant Breeders' Rights ghgh
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