by Pedro Moreira
March 01, 2009
On October 2008, the press reported that the Ministry of Agriculture, Livestock and Supply (MAPA) had announced a raise in agribusiness exports from US$ 23.4 billion in 1997 to US$ 58.4 billion in 2007, verifying a growth of 149% in ten years. Projections for 2008 call for a 27% increase, achieving US$ 74 billion.
MAPA forecasts that world food demand will double by the middle of this century. Currently, Brazil is already considered as a world power in agribusiness and, in order to meet the growing demanding, MAPA has signaled that the increase of productivity is crucial for the country. In addition, businesses and farmers are already aware that the development and use of new technologies are key issues to the industry’s future and success.
In Brazil, plant varieties are object of intellectual property rights in accordance with Plant Variety Protection Law 9,456/97 (PVP Law). Regulated by Decree 2,366/97, the law guarantees plant breeders intellectual property rights for plant varieties, which are also called cultivars.
Since enactment of the PVP Law on April 25, 1997, 1,135 Provisional Protection Certificates and Protection Certificates have been issued so far, according to the last update of the MAPA’s database on November 12, 2008. The number of protected plant varieties has risen 62% in the last three years.
Among this total, 381 certificates have been issued for soy, 81 for wheat, 80 for rosebushes, 77 for sugarcane, 60 for potatoes, 59 for rice, 59 for cotton and 42 for corn. Presently, the National Service for Plant Variety Protection (SNPC) recognizes protection for 90 plant varieties (17 agricultural, 1 forestal, 14 forage, 18 fruitful, 12 oleraceous and 28 ornamental).
In this scenario, on September 2008, MAPA submitted to the National Congress a proposal to amend the PVP Law, the following being pointed out:
1. Number of species encompassed (Articles 2 and 4 of the PVP Law):
> Current – The plant species susceptible of protection are those whose descriptors have been published in the Official Gazette (currently, these comprise the 90 plant varieties mentioned above).
> Proposal – All plant species would be susceptible of protection.
2. Scope of rights (Articles 8 and 9 of the PVP Law):
> Current – Protection covers plant variety’s propagating material.
> Proposal – Protection would be extended to the crop’s commercial product, or any product produced directly from it, if it results from an unauthorized use of the protected plant variety’s propagating material.
3. Exceptions of rights (Article 10 of the PVP Law):
> Current – Any farmers may reserve and plant a protected plant variety’s propagating material for their own use.
> Proposal – Only small, income taxexempt farmers would be allowed to produce the propagating material for their own use, except in the case of ornamental plants.
4. Term of protection (Articles 11 and 12 of the PVP Law):
> Current – Counting from the date of granting of the Provisional Protection Certificate, the term of protection of a plant variety is 18 years for grapevines, fruitful, forestal and ornamental trees, including their graft-holder in each case, and 15 years for other plant varieties.
> Proposal – The term of protection would be increased from 18 and 15 years to 25 and 20 years, respectively.
5. DHS Tests – Distinctiveness, Homogeneity and Stability (Articles 2, 4 and 14 of the PVP Law):
> Current – DHS tests are conducted by obtainers and must be presented upon the filing of the application for a protection certificate.
> Proposal – If the certificate application contains a complete DHS, the application’s information would be analyzed, the abstract of the application would be published and the protection certificate would be issued. If the certificate application contains an incomplete DHS or none at all, the application’s information would be analyzed, a partial abstract of the application would be published, the complete DHS data would be presented, the application complement would be published and the protection certificate would be issued.
6. Compulsory Licensing (Article 31 of the PVP Law):
> Current – The request for compulsory licensing is decided by the Administrative Council of Economic Defense (CADE).
> Proposal – The request for compulsory licensing would be decided by a Presidential Decree.
7. Sanctions/Penalties (Article 37 of the PVP Law):
> Current – Whoever sells, offers for sale, reproduces, imports, exports, packages or stores for these purposes, or assigns in any way propagating material of a protected plant variety, with or without the correct denomination, without the authorization of its owner, is in violation of breeder’s rights. The current penalties include compensation of the owner, seizure of the material and payment of a fine based on the seized material’s commercial value.
> Proposal – The penalties would be detention and a fine, which is higher for infringement committed by third parties with privileged access to the protected plant variety. The infringement would be characterized by the commercialization or storage with the intent to sell the protected plant variety or parts thereof, with the aim of planting or sowing, with or without use of its correct denomination, without authorization of its owner.
This proposal for amending the PVP Law was presented by the SNPC/MAPA on August 2008, at the XXVIII Intellectual Property National Seminar of the Brazilian Intellectual Property Association (ABPI).
*Pharmacist and technical consultant for Dannemann Siemsen