Plant variety protection

Plant variety management relates to the conservation, use and commercial exploitation of plant varieties by farmers, commercial breeders, governments and relevant international organisations. Plant variety protection is one subset of this broad field which focuses exclusively on knowledge which can be commercially exploited. In other words, plant variety protection relates to intellectual property rights over plant varieties which guarantee rights holders exclusive commercial rights for a specific period of time.

The usual rationale for introducing exclusive intellectual property rights in specific fields of technology is that an individual or legal entity that devotes significant resources to the development of new technologies should be rewarded with a temporary exclusivity. This is linked to the idea that certain forms of knowledge can easily be copied. In such cases, individuals who have not contributed to the development of an invention would be in a position to benefit from the fruits of the invention if no exclusive right was offered to the inventor.

In the agricultural field, inventiveness was traditionally based on the sharing of biological resources and related knowledge among farmers in most parts of the world. This changed slowly in the early part of the 20 th century in certain OECD countries where a private sector seed industry slowly developed. The development of the private sector in this field led to calls for a form of intellectual property rights protection over plant varieties to give sufficient incentive to private sector actors to enter the seed business. However, while in most fields of technology, the preferred mode of legal protection for inventions was patents, in the agricultural field, an alternative form of intellectual property rights, plant breeders’ rights (PBRs) was developed. Several factors led to the development of this alternative form of intellectual property protection. On the one hand, it was progressively recognized that a form of intellectual property rights was necessary to foster private investment in the seed sector. On the other hand, there were two forms of resistance to the extension of patent rights in this field. For a while, the industry argued that the notion of inventiveness which characterized patents would be diluted if plant varieties were brought onboard because a new plant variety was seen more as an improvement on an existing product of nature than as a ‘scientific’ invention[1].  Other actors argued , and in some cases still argue , that seeds had always been part of the common heritage of humankind and were freely exchanged among farmers and farming communities[2].  The different positions expressed with regard to the introduction of plant breeders’ rights have assumed added significance in the wake of the adoption of the TRIPS Agreement. Indeed, while a number of OECD countries had progressively adopted a form of PBRs before 1994 to foster the development of their private seed industries, most developing countries had not introduced any form of intellectual property right protection in the agricultural sector.

At a general level, PBRs have been linked to the progressive commercialisation of the agricultural sector and have mainly been the preserve of developed countries which progressively felt they needed to give further incentives for the development of a private sector seed industry. In other words, it became progressively accepted that breeders should be given specific legal rights to the varieties they develop in a bid to foster the development of new varieties that could easily be reproduced by farmers or competing breeders. As a result, PBRs as they exist today have been developed for the specific contexts and needs of developed countries. The legal regime for PBRs is quite uniform thanks to the fact that most countries having introduced PBRs have either joined the International Union for the Protection of New Varieties of Plants (UPOV) regime or modelled their legislation after the UPOV regime. The following paragraphs consequently analyse PBRs as they have developed in the UPOV context.

PBRs can generally be described as patent rights with some missing attributes. PBRs share a number of characteristics with patent rights: they provide exclusive commercial rights to the holder, reward an inventive process, and are granted for a limited period of time after which they pass into the public domain. Over time, the criteria for PBR protection have been strengthened.

To be more specific, PBRs protect plant varieties. Plant varieties can only be protected by PBRs if they fulfil the four basic criteria of novelty, distinctness, stability and uniformity or homogeneity. Each of these characteristics is given further content by UPOV itself. The concept of novelty requires further elaboration because it differs from its acceptation under patent law. Under UPOV, a variety is novel if it has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety[3]. Novelty is thus defined entirely by commercialisation and not by the fact that the variety did not previously exist. UPOV gives a specific time frame for the application of novelty. To be novel, a variety must not have been commercialised in the country where the application is filed more than a year before the application and in other member countries more than four years (six years in the case of trees and vines). The criterion of distinctness requires that the protected variety should be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application[4]. Stability is obtained if the variety remains true to its description after repeated reproduction or propagation[5].  Finally, uniformity implies that the variety remains true to the original in its relevant characteristics when propagated[6].  

Over time, the definition of protected variety has evolved insofar as so-called ‘essentially derived varieties’ were not protected in the early days of plant variety protection. The latest revision of UPOV has introduced protection for such varieties[7]. Protection as ‘essentially derived variety’ is obtained if the variety is predominantly derived from the initial variety and retains its essential characteristics. It must also be clearly distinguishable from the initial variety while confirming to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

The rights conferred to plant breeders differ from patent rights insofar as they provide much more extensive exceptions to the rights conferred than patents. Breeders have exclusive rights to produce or reproduce protected varieties, to condition them for the purpose of propagation, to offer them for sale, to commercialise them, including exporting and importing them, and to stock them in view of production or commercialisation[8]. These rights are restricted by a number of exceptions that are compulsory in the UPOV context. The rights of breeders do not extend to acts done privately and for non‑commercial purposes, to acts done for experimental purposes, to the use of the protected variety for the purpose of breeding other varieties and the right to commercialise such other varieties as long as they are not essentially derived from the protected variety. While the previous exceptions are compulsory, there exists a set of further exceptions which have been progressively reduced over time. The so-called farmer’s privilege falls into this category. Under UPOV-1978, the rights of breeders were circumscribed in such a way that PBRs did not interfere with farmers’ use of the legally obtained protected variety for propagating purposes on their own holdings. Under UPOV-1991, the rights of breeders have been extended to the harvested material of the protected variety and the farmer’s privilege has been made optional.

With regard to the duration of PBRs, their first characteristic is to be time-bound. The period of protection has evolved over time but always with the idea that the rights conferred expire at the end of a specific period of protection. Under UPOV-1978, the period of protection is of a minimum of 15 years. For vines, forest trees, fruit trees and ornamental trees, the minimum is 18 years[9]. UPOV-1991 extends the minimum period from 15 to 20 years. For trees and vines, the minimum is of 25 years[10].

PBRs were at first conceived as an alternative to patent rights and it was accepted that the two kinds of intellectual property rights should be kept separate. Thus, under UPOV-1978, member states can only offer protection through one form of intellectual property rights[11]. The grant of a PBR on a given variety implies that no other intellectual property right can be granted to the same variety. Under UPOV-1991, this restriction has been eliminated and double protection is now allowed.

Sui generis protection systems

The question of sui generis intellectual property right protection for plant varieties has become a matter of great importance following the adoption of the TRIPS Agreement. As a result of a negotiating compromise, TRIPS requires the introduction of plant variety protection in all member states but it does not impose the introduction of patents. Article 27.3.b specifically requires all member states to ‘provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof’[12].  The introduction of the sui generis concept reflects two broad elements. First, a number of countries in the North and the South rejected the compulsory introduction of plant patents. Second, negotiators did not manage to agree on one specific alternative to patents. As a result, TRIPS gives member states a wide margin of appreciation in determining how to implement their obligation to introduce plant variety protection.

The question of the introduction of plant variety protection is one that concerns mostly developing countries. Indeed, most developed countries had already introduced either plant patents or PBRs before the adoption of TRIPS. Developing countries that are member of WTO were left with the choice of either adopting the existing regime proposed in UPOV or to devise their own plant variety protection system adapted to their specific situation. A few countries have joined UPOV since 1994 but the majority has decided to adopt their own plant variety protection laws. In a number of cases, these laws draw directly and significantly from the UPOV regime and generally most existing proposals introduce PBRs. In cases where PBRs are adopted only as part of the regime, the regime is completed by the introduction of a form of farmers’ rights. In fact, existing sui generis options can be generally defined as regimes introducing both PBRs and farmers’ rights.

The prominence of the UPOV Convention in the debates concerning sui generis plant variety protection is in part linked to the fact that the interpretation of the concept of ‘effective’ sui generis system in Article 27.3.b TRIPS remains problematic. The only generally agreed upon interpretation is that UPOV is an effective suigeneris protection regime under TRIPS. This has led some countries like the member states of the African Intellectual Property Organization to simply adopt a regime modelled after UPOV-1991 and at the same time to commit themselves to join the UPOV Convention[13].

Some countries like India have decided to implement plant variety protection regimes which seek to provide protection to commercial plant breeders and to farmers. Thus, the Indian plant variety protection regime introduces both PBRs and farmers’ rights[14].  While a number of countries have attempted to draw up their own sui generis plant variety protection regimes, the member states of the Organization of African Unity have taken a unique initiative in adopting a Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources[15].  The model legislation is premised on the rejection of patents on life or the exclusive appropriation of any life form, including derivatives. Its provisions on access to biological resources make it clear that the recipients of biological resources or related knowledge cannot apply for any intellectual property right of exclusionary nature. The model legislation focuses mainly on the definition of the rights of communities, farmers and breeders. Community rights recognized include rights over their biological resources and the right to collectively benefit from their use, rights to their innovations, practices, knowledge and technology and the right to collectively benefit from their utilization. In practice, these rights allow communities the right to prohibit access to their resources and knowledge but only in cases where access would be detrimental to the integrity of their natural or cultural heritage[16].  Further, the state is to ensure that at least fifty per cent of the benefits derived from the utilization of their resources or knowledge is channelled back to the communities. The rights of farmers are to a certain extent more precisely defined. These include the protection of their traditional knowledge relevant to plant and animal genetic resources, the right to an equitable share of benefits arising from the use of plant and animal genetic resources, the right to participate in decision making on matters related to the conservation and sustainable use of plant and animal genetic resources, the right to save, use, exchange and sell farm-saved seed or propagating material, and the right to use a commercial breeder's variety to develop other varieties. The breeders’ rights defined under the model legislation generally follow the definition given in the UPOV convention and the duration of the rights is modelled after UPOV 1991. One specificity of the plant breeders’ rights regime under the model legislation is the rather broad scope of the exemptions granted. Exemptions to the rights of breeders include the right to use a protected variety for purposes other than commerce, the right to sell plant or propagating material as food, the right to sell within the place where the variety is grown and the use of the variety as an initial source of variation for developing another variety[17].

The development of sui generis plant variety protection is still in its infancy. Until now, efforts have been made by developing countries to balance their obligations under Article 27.3.b of TRIPS with their specific needs and conditions. Since UPOV is the only model which is generally recognized as fulfilling the criteria of an ‘effective’ sui generis plant variety protection regime, a number of states that have not had the time or resources to devise a completely separate sui generis protection regime have decided to take PBRs as a basis for a plant variety protection regime. In addition to the PBR system, there seems to be a growing trend towards recognising farmers’ rights alongside and to provide for different compensation mechanisms (benefit-sharing). Other sui generis protection regime s will probably be developed in years to come, in particular by least developed countries which still have until 2005 to implement their plant variety protection regimes. Further, even countries classified as developing countries may amend their legislations over time as further sui generis models evolve. Sui generis protection is evolving and significant innovations can be expected in years to come.