Protecting Cultivar Rights in South America
by Moeller IP Advisors
It goes without saying that the agribusiness sector is one of the most developed in South America. Investments in R&D in this sector are common and in order to protect them, a satisfactory legal framework has to guarantee the security of those economical efforts.
Infringements of Cultivar Rights
New plant varieties are not patentable neither in Brazil, nor in Argentina, but they receive a similar protection through the Brazilian Plant Variety Protection Law (Law 9456), enacted in 1997 and the Argentine Seed Act (Seed Act No 20247), amended in 1994. Both laws permit the breeder to grow and commercialise the plant variety, provided it fulfills the requirements of novelty, stability, uniformity and distinctiveness. The duration of the protection can vary. In Argentina, the National Cultivar Property Register can grant the Property Certificate up to twenty years, depending on plant species. In Brazil, the protection lasts generally for fifteen years, and is extended to eighteen years for grape vines, fruit trees, and ornamental trees.
However, the legal framework would not be complete if the breeders were not given effective instruments to protect their rights from potential infringers, preventing third parties from commercialising the plant variety.
In Brazil, the PVP Law introduced a new body, the National Service for the Protection of Cultivars Serviço Nacional de Proteção de Cultivares (SNPC), responsible for the protection of breeders’ rights. Also, the PVP Law establishes that an infringement occurs when someone sells, offers for sale, reproduces, imports, exports, packs or holds in stock for these purposes or helps the spreading of the protected plant variety without the authorisation of the owner. In the case of a supposed infringement, the owner can file a suit against the infringer in a civil court.
In Argentina, very similarly, the infringement takes place when a party doesn’t obtain the authorization of the breeder for production, reproduction, supply, sale, export, import, advertising, any kind of commercialisation, or even the storage of the plant variety for the purpose of commercialisation.
Protecting Cultivar Rights in Practice
However, how is it possible to assess, in practice, whether the plant variety registered for protection and the variety which has been commercialised – and is potentially infringing the owner’s rights – are the same? This can be particularly complex, especially if the variety that is being protected is a hybrid crop.
The analysis is carried out by confronting the morphological and molecular markers of the two plant varieties and examining in which measure they overlap. Not only do the breeders need to attach relevant, updated scientific evidence to their claim, but also the Courts and the technical experts appointed by them need to possess the technical expertise to evaluate it.
In South America, the case law on cultivar rights infringements is still very limited. In a recent interesting case, Fibria, one of the major producers of eucalyptus pulp, brought an action against the company Eldorado Brasil Celulose for infringement of an Eucalyptus clone. In the decision handed down in 2015, the 4th Civil Court of Três Lagoas, Brazil, confirmed the report provided by the technical expert. The report, relying on DNA testing, concluded that there was a chance of 99.99999981% that the eucalyptus trees cultivated by Eldorado were genetically identical the variety owned by Fibria.