Can Plants be Protected under Intellectual Property Law in South America?
South America owns an incredible natural plant variety and its climate is dominated by extended and relatively warm regions which favour cultivation. No wonder South America’s crop accounts for around the 10% of the world’s produce. In the region, Brazil and Argentina are the main exporters, given their large production of oil seeds and grains.
Building upon the natural variety of plant life, commercial farms in the region have further invested in precision agriculture and plant breeding, in order to improve the production both quantitatively and qualitatively.
Is this investment in plant breeding protected by IP law in South America? In other words, can plants be patented?
Patent is not an Option
The short answer is no, at least for the major players in the area. Neither Argentina Patent Law, nor Brazil Patent Law provides patentability of crops and plants.
In particular, Argentina Patent Law No. 24.481/96 provides, at article 6, letter g, that “all living material and substances pre-existing in nature” are not to be considered inventions, and the corresponding regulation states that “Plants, animals and the essentially biological processes for their reproduction shall not be considered to be patentable material”.
Similarly, Brazil Patent Law No. 9,279 expressly excludes plants from being protected by patents: article 18 prohibits the patenting “of the whole or part of living beings, except transgenic microorganisms”.
And by transgenic microorganism, the Brazilian system means bacteria, mildews, yeasts, fungi, virus, but not transgenic plants, cells or even seeds.
So, how to protect the economic investment that tech companies and farmers have put into plant breeding?
How to Protect Plant Variety
The good news is that both Argentine and Brazilian legal systems provide plant breeds a protection similar to patent law.
Brazil enacted the Brazilian Plant Variety Protection Law in 1997; the law subsequently incorporated the provisions of the 1978 revisions to the International Union for the Protection of New Varieties of Plants (UPOV) Convention. Under the PVP, a new plant variety or a plant variety essentially derived from another cultivar can be protected if it is novel. The variety should also be distinguishable from any other variety, sufficiently uniform among individuals and stable after repeated reproduction.
The plant variety is protected for fifteen years from the date the PVP certificate is granted, except for grapevines, fruit trees, and ornamental trees that are protected for eighteen years.
The PVP gives the breeder the exclusive right to produce and commercialize the plant variety in Brazil: third parties need to obtain a previous authorization from the right’s owner. There are some exceptions: no authorization needs to be required if the seeds are planted for personal use; if the product obtained is used or sold, except if for reproduction purposes; if the plant variety is used as source of variation in genetic improvement or scientific research; and finally, if seeds are multiplied by a small rural producer for donation or exchange.
Argentina was the first country in South America to protect plant breeds. The Law No. 20.247 so called Seed Act, was enacted in 1973 and modified in 1994 and adopted the UPOV convention. Similarly to the Brazil PVP Law, the Seed Act grants the owner the right to produce and market a breed in Argentina for 20 years, provided that this is distinctive, homogeneous and stable and new or recently exploited. Again, there are exceptions to breeders’ rights: farmers can plant seeds for production on their land without authorization, although they can’t deliver it to third parties for reproduction; plant breeders can use plant varieties to develop new ones, without authorization; and finally the breeder’s rights do not extend to the use or sale of crops and products.