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Thursday 10 June 2010


Plant varieties and seeds in Argentina

One of the topics touched on in "Intellectual Property - Argentina: IP rights and new technologies", the most recent contribution to International Law Office by Carlos O Mitelman and Daniel R Zuccherino (Obligado & Cia), is that of plant breeders' rights. Regarding plant and seed varieties the authors outline the position in Argentina:

"Plant breeders' rights are recently acknowledged rights whose importance has developed concurrently with the biotechnological revolution and plant improvement techniques. They are rights related to innovations obtained in plant varieties (eg, new varieties with increased resistance to pests or weather, or with enhanced nutritional capacity).

Plant breeders' rights have similarities with patent law and also share the aim of encouraging new investment in research and development activities. However, despite these similarities, within the Argentine legal framework plant varieties are not patentable. Article 6(g) of the Patent Law (24,481) establishes that "all kinds of live material and pre-existing substances in nature" are not considered invention, thus excluding the possibility of patenting them. Furthermore, in many cases the obtaining of new plant varieties does not, strictly speaking, mean the creation of an invention, but rather the result of relatively gradual and mechanical stages or steps".
After explaining that plant varieties protection can be excluded from patent protection under TRIPS they add
" ... plant varieties can be protected under the Seeds Law (20,247) and the International Union for the Protection of New Varieties of Plants (UPOV) Agreement 1978 (Argentina has been a member of UPOV since 1994).

... The Seeds Law and Regulatory Decree 2183/91, which adapts the Seeds Law to the requirements of the UPOV Agreement and was approved in Argentina by Law 24,376, establish the protection of rights over plant varieties".
The full text of this article is available here.




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11 June 2010 at 09:37 delete

There is a permanent misunderstanding with regard to the protection of plant varieties by patents vs plant breeder's rights and the TRIPS provisions.
A plant variety is a single combination of genes that is heritable, relatively homogenous and stable over generations. There can be, and there are many varieties in one single species. The most easily understandable examples come from the horticulture industry, see e.g. roses.
Patent laws (except US law) do not allow the protection of plant varieties with patents. But most jurisdictions have a sui generis system to protect plant varieties (Plant Breeders rights), according to the TRIPS requirement.
The problem which is somewhat delicate to understand by persons not familiar with this technical field is that certain gene technologies can nowadays be integrated into plants to provide them with certain desired features (tolerance to certain pests, or nutritional qualities). This is what GMOs are. Those gene technologies are themselves patentable, and plant varieties containing them can be protected by Plant breeder's rights. However, once introduced into a plant variety, such Gene technology can easily be transferred by classical selection processes into another variety of the same species. One can therefore easily understand that the system of plant breeder's rights is not adequate in preventing the (mis)use of the gene technology by third parties. Developers of such gene technologies can therefore only rely on patents to protect the research investments. A typical patent claim covering such technology in plants is "A plant containing the gene technology", which is a legitimate claim if the said gene technology is novel and inventive. However, many countries (like Argentina) have introduced into their patent laws the exclusion of plants or plant varieties from protection, and most of them consider that such claims can therefore not be accepted. However, jurisdictions like the European Patent Office (EPO) have understood the issue in a decision from its Enlarged Board of Appeal (G01/98). The EPO also excludes plant varieties from protection, and the EU has its own Plant breeder's rights system to protect plant varieties. However, in that decision G01/98, the Board has recognized that a particular gene technology is applicable to all plants (i.e. many plant varieties), and has acknowledged that a claim on "Plants" in general is not a claim on a plant variety, thereby allowing it. This enables developers of plant varieties to protect their varieties with Plant Breeders Rights, and developers of Gene technologies applicable to plants to protect their inventions properly. Countries like Argentina do not enable this latter protection, which is a great concern for developers of Gene technologies for introducing those technologies in these countries.