by Pedro Moreira
December 01, 2005
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With the current Industrial Property Law (IPL), Law 9,279/96, Brazil ratified its position on the patentability of biotechnological material of vegetable origin, according to articles 10 (IX) and 18 (III) of the IPL, which do not allow the patentability of plants, in whole or in parts, either natural or transgenic.
The Law stipulates that a plant per se is not patentable, but processes for manipulating it and its genetic material are, provided they produce characteristics normally unachievable in natural conditions as a result of direct human intervention (inventiveness).
Therefore, according to the IPL and the interpretation adopted by the Brazilian Patent and Trademark Office (BPTO), plants, seeds, cells, and progenies are not patentable. However, plant genes, nucleotide and peptide sequences, and proteins, as well as processes for manipulating plants (preparation, modification, extraction etc.) are patentable, provided they are new and inventive.
Plant varieties, not protected by the IPL, became objects of Intellectual Property rights, according to the Plant Variety Protection (PVL), Law 9,456/97. Regulated by Decree 2,366/97, the PVL guarantees inventors, the so-called ”plant breeders,” Intellectual Property rights for these plant varieties, the so-called ”cultivars.”
Cultivar is a variety of any superior plant genus or species, as well as the component lineage of hybrids. To be susceptible of protection, the cultivar must be new, homogeneous, and stable; it must have its own denomination and distinctiveness and it must be useful.
The protection of a cultivar applies to the vegetative reproduction or multiplication material of the whole plant and ensures to its holder the rights to commercial reproduction in the Brazilian territory. Third parties are prevented, during the period of protection, from producing the cultivar propagation material for the purpose of sale, from offering it for sale or from commercializing it, without the authorization of the holder.
Counted from the date of grant of the Provisional Protection Certificate, the term of protection is eighteen years for grapevines, fruit trees, forestal trees and ornamental trees, including, in each case, their graft-holder, and fifteen years for the other cultivars.
The National Service for Plant Variety Protection (SNPC) is competent for the protection of the cultivars and rests within the jurisdiction of the Ministry of Agriculture and Supply.
The definitions and procedures of the PVL were based on the International Union for the Protection of New Varieties of Plants (UPOV). Brazil became a member of the UPOV on April, 1999, adopting its modified version of 1978.
Created in 1961 and with headquarters now in Geneva, Switzerland, the UPOV is an international organization that works together with the WIPO (Word Intellectual Property Organization). By means of an international convention, the UPOV disciplines the protection of cultivars in around 59 member countries.
Joining the UPOV, an automatic reciprocity between Brazil and other member countries was established. All UPOV members commit to protecting Brazilian plant varieties. Likewise, Brazil commits to protecting cultivars from these countries, facilitating the exchange of new material generated by Brazilian and international research.
According to the Ministry of Agriculture and Supply, 699 certificates among Protection Certificates or Provisional Protection Certificates were published between January 1st, 1998 and July 6, 2005. From this total, 304 certificates for soybean, 67 for wheat, 52 for sugar-cane and 46 for cotton. The SNPC currently grants protection to 54 plant varieties (13 agricultural, 1 forestal, 7 forage, 7 fruitful, 6 oleraceous and 20 ornamental), and these numbers may be increased in view of the UPOV listing.
It is important to note that the rights conferred by the PVL do not exclude those conferred by the IPL and vice-versa. The Intellectual Property rights provided by the IPL and the PVL are complementary, i.e. Letters Patent (invention) and Protection Certificates (cultivar) protect distinct materials and are governed by different rules. A plant (cultivar) may be protected by the PVL, whereas a gene inserted therein may be protected by the IPL. These forms of protection complement each other; they do not represent a bar to each other.
Both forms of protection are recommended in order to preserve full Intellectual Property rights, thereby promoting greater and more effective financial return.