But introducing Plant Breeders’ Rights legislation in a country, within or outside the UPOV framework, is only a first step to guaranteeing the protection of your variety. At least as important is a system to enforce the laws. Especially in large countries or countries with a less-developed (legal) infrastructure, this is indispensable.
In countries without Plant Breeders’ Rights legislation, a variety is more or less a free variety: everybody can multiply and sell that variety. When countries have Plant Breeders’ Rights laws, this strengthens the position of breeders and recognises the importance of new breeding material. It also makes it possible to ask for a royalty for the energy and money that breeders spend on developing new varieties.
Starting a system
Countries that want to start a Plant Breeders’ Rights system can either develop their own legislation or recognise the UPOV system. When a country opts for the latter, it can apply to become a so-called “UPOV member”. After a harmonisation period for alignment of local legislation to the UPOV rules, membership can be confirmed.
“Introducing Plant Breeders’ Rights legislation in a country is only a first step to guaranteeing the protection of your variety”
Sceptics of enforcing Plant Breeders’ Rights often point to countries like China or India. How to control all the farmers, of which there are millions, in all corners of these countries? Indeed, there is still a lot to do there but the countries are developing very fast, there is a big demand for food and the need for agricultural modernisation is recognised. This is where it all starts: awareness.
For that matter, this is exactly how the Plant Breeders’ Rights system started in the western world. It took 46 years after the first UPOV convention came into force in 1968 to reach the level we are now. And still not all companies or farmers respect Plant Breeders’ Rights laws. A group of nine Dutch, German, French and Danish potato companies even saw the need to establish the Breeders Trust in 2008 to support monitoring the enforcement of Plant Breeders’ Rights and detecting and eliminating illegal production and trade in seed potatoes.
Plant Breeders’ Rights and patents are distinct from each other but share several characteristics: exclusive commercial rights to holders of a plant variety, and reward for an inventive process, both granted for a limited period before they pass to the public domain. Protection under UPOV is granted for developed (or discovered) plant varieties that meet the following DUSN claims:
- Distinctness requires that the variety should be clearly distinguishable from any other commonly-known variety at the time of filing the application.
- Uniformity implies the variety remains true to the original in its relevant characteristics when propagated.
- Stability: a variety is stable when it remains true to its description after repeated reproduction or propagation.
- Novelty: a variety is new if it has not been sold or otherwise disposed of for purposes of exploitation of the variety.
The novelty claim under Plant Breeders’ Rights differs from the patent law and is defined in relation to commercialisation and not by the fact that the variety did not previously exist. Under UPOV, in order to be able to still meet the novelty claim, a variety cannot have been commercialised in the country where the application for Plant Breeders’ Rights is filed for more than a year before the application and in other member countries for more than four years.
For HZPC and its associated breeders, the protection of Intellectual Property, namely varieties, is of major importance. It makes it possible to have more control over varieties and to receive remuneration, which can be used to re-invest in research and variety development. At this moment, 665 Plant Breeders’ Rights are in force or under application for 114 HZPC varieties, spread over more than 60 countries!
HZPC commends the fact that more and more countries are introducing Plant Breeders’ Rights laws or, even better, are joining UPOV. Joining UPOV means “speaking more or less the same language” as the other members, resulting in more uniformity in legislation, easier procedures for application, DUS testing, granting of rights, and exchange of documents between the members.
But even within UPOV there is still room for improvement; the scope of protection is not yet the same across all countries, largely due to the fact that not all countries have signed the 1991 Act yet. Quite a few countries still only have protection periods of 15, 18 or 20 years. Developing new varieties is becoming more expensive; we want to know much more about a variety before releasing it, so new and costly techniques are used etc. These short protection periods hardly justify such investment. HZPC would like to see the protection in all countries changing to at least 30 years.
HZPC recognises the difficulties in countries that recently implemented a Plant Breeders’ Rights system. But implementing the law is only the first step and HZPC is confident that, with further development in these countries and the necessity for food security, awareness will grow and further steps will be taken.