Plant Variety Protection Analysis

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Table of Contents

Abstract
Introduction
Importance of Protect the Plant Variety: Legal View
Patent Protection through TRIPS
Alternatives to Plant Variety Protection
Meaning of Protect Plant Variety
Conclusion
Bibliography
Footnotes

Abstract

The legal notice of 1970 provides that all new varieties of plants be protected through patents in order to give the owner some legal rights. The 1970 legal act is an American intellectual property law that aims at protecting American farmers from malicious damage on their plant varieties. The law suggests that a breeder has an exclusive right over control of a new species for at least twenty-five years. Any new variety that is distinctive, consistent, or stable sexually is to be protected under the law. The Plant Variety Protection Act was instituted to augment the already existing plant patents, but its provisions were different in various aspects. Other existing plant patents are usually restricted to asexually reproduced plants meaning that they do not cover tuber-propagated plants. Plant variety supervision is directly related to preservation, utilization, and profitable use of plant varieties. The use of plant protection laws is simply one of the subsets that are often employed in protecting plant reproduction technologies that individuals or organizations produce¹. The protection is related to intellectual property rights over specific plant varieties. The copyright is intended to guarantee continuity and commercial rights to the right owners for a specified time². It is always believed that individuals dedicating their resources, energies, and time towards development of a certain technology should be given particular exclusive rights to enable them reap maximally from their efforts. Technologies generated through research are usually copied, which might perhaps interfere with the quality of the original product. If no exclusive rights are given to the innovator, some individuals, who might not have contributed in the generation of the technology, might benefit illegally through copying and duplication³.

Introduction

The idea of plant variety protection was introduced in the 20^th century following the development of private sector seed development. This was because giving the private sector some rights over their technologies would encourage innovation. This would further act as an incentive towards business development. Many countries preferred the issuance of patents to plant technologies and varieties, but intellectual property rights through plant breeders were adopted and developed with time. The use of intellectual property rights was adopted as an alternative to the existing system, which utilized patents mainly. This was because the new system would promote private investment in the seed sector. Issuance of patents to plant varieties was viewed with contempt since scientists argued that the inventiveness was not possible in the agricultural sector since the development of a new breed was seen an improvement to the already existing variety. In this regard, intellectual property would resolve all these issues. Some scientists argued that seeds are products of nature and they have always existed in their natural forms hence no individual should be given patent over them. Due to disagreements among farmers, the international union in charge of intellectual property rights and patents in the agricultural sector has introduced TRIPS Agreement to resolve all these issues⁴.

This paper discusses the legal perspective of protect the plant variety. It assess whether protect the plant variety provision is of any importance as far as innovation in the agricultural sector is concerned. Additionally, the paper evaluates the role of patent protection of plant species through TRIPS Agreement. In this section, some of the international provisions are discussed. In the third section, the article paper evaluates the applicability of patent in protecting plant species. In this regard, plant varieties should not be protected if patents cannot offer adequate protection. Lastly, the paper offers a brief definition of protect plant variety. In this case, it is argued that plant varieties ought to be protected to encourage development and innovativeness in the agricultural sector. In other words, protecting technologies in the sector play a critical role in offering incentives to farmers and breeders.

Importance of Protect the Plant Variety: Legal View

Before the introduction of plant variety protection in various parts of the world, the public sector undertook the supply of seeds to farmers while the private sector played a marginal role. From a legal viewpoint, plant variety protection is an issue of great concern that needs to be resolved, even though various acts, including Protection of Plant Varieties and Framers’ Rights Acts, have been ratified based on the TRIPS regulations⁵. It is believed that plant variety protection serves a different purpose other than serving as an incentive to farmers and the private sector. Apart from the TRIPS Treaty, other protection treaties exist, including Biodiversity Convention and the International Treaty on Plant Genetic Resources for Food and Agriculture. Even though plant variety protection serves a great purpose of encouraging innovation, it also exists to conserve biological resources. In this regard, plant variety protection should be embraced globally since it exists to promote the interests of farmers and the environment in general. Plant variety protection proposes that the proposal of information and data distribution among various stakeholders in farming organization is unacceptable. One of the greatest importance of protect the plant variety is enhancing food security. In fact, protection of plant varieties is directly related to food security. Its justification is because it encourages massive production of food⁶. Due to the existence of the law on the protection of plant varieties, the world has a stable supply of food. Locally, food is available since each organization is allowed to maintain and sustain its seeds in the market.

Studies show that food supply at the global level is at threat because of the diminishing farming fields. This is a major concern for governments at the local and international level. At the domestic level, any state needs a competent food distribution structure, as well as sufficient capital to bring in or produce food. The distribution system should also be efficient to ensure that food reaches all people in the country. Studies on food security suggest that food security at the household level is achieved when the family has enough resources to buy food or produce it through cultivation. The issue of food security is of concern to any organization, including the powerful governments because it is related to agro-biodiversity, which in indeed critical as far as promotion of resilience in faring is concerned. If diversity is reduced through farming malpractices, such as monoculture farming, vulnerability to natural forces tends to be high, particularly concerning pest/weed attack. Farmers are encouraged to adopt agro-biodiversity since it enhances income generation, as well as food security among households. Through biodiversity, issues to do with ecological unit services, such as pollination, productiveness, nutrient augmentation, and infection management are improved, which encourages industrious farming and reduces the number of peripheral inputs required in farming. Agro-biodiversity offers natural reserves, also known as the inherited pool, for various biotechnology investigations and growth. Studies suggest that multiplicity has some dietary and social significance meaning that plant multiplicity might have several nutrients and fitness benefits⁷.

Small-scale farmers and other traditional farmers are known to engage in customary farming practices that are aimed at conserving and enhancing agro-biodiversity. For this purpose, such farmers have to maximize productivity through minimization of risks. This is better done through selection in order to preserve treasured varieties, invent new ones, and adapt the existing varieties with desirable qualities. This would definitely encourage agro-biodiversity. The promotion of traditional farming plays a critical role in ensuring food security at the local level. In this regard, farmers ought to have control over plant varieties in order to continue with their innovation programs, improve the existing varieties, and adapt some of the varieties with desired qualities. This would perhaps help them in adopting the changing agricultural needs and environmental challenges. National policies play an important role in promoting feed security⁸. The state has the role of engaging proactively in activities and programs aimed at strengthening access to food. In this regard, the state is supposed to facilitate lad transformation, encouraging physical and financial access to credit, facilitating new technologies, and providing precise rights to farmers through legislation. Through plant variety protection, cash crops cannot replace the food crops, which are the backbone of any economy regarding feed security. The private sector should not be allowed to institute policies that will interfere with the lives of farmers through seeking patents to some of common technologies.

From a legal perspective, plant variety protection can be viewed from both a narrow and broader perspective. From a narrower viewpoint, plant variety protection serves the major objectives of business-minded breeders, as well as the demands of the biotechnology production. A broader perspective underscores the fact that several stakeholders in plant variety management exist. When instituting policies related to plant variety protection, all stakeholders must be incorporated. Each of the stakeholders has a role to play, as others are involved in innovation whereas others are actively engaged in agro-biodiversity management. States have various reasons for introducing Plant Variety Protection organizations domestically. Article twenty-three, section three, subsection B of the TRIPS Agreement suggests that all countries must introduce some form of intellectual property protection as regards to plant varieties⁹. However, the provision is very clear since it does not talk about the introduction of patents. This allows each country in the international system to come up with its own legal framework, which is referred to as the Sui generis. States are faced with the problem of dealing with bio-piracy at the global level whereby a country is forced to seek patent over a certain knowledge that might be misused at the global level. Intellectual property rights might not necessarily play any significant in genetic engineering as regards to bio-piracy, but it has a role in raising the profile of customary knowledge, which is a subject of discussion and protection in the international law. Introduction of intellectual property rights aiming at protecting plant varieties is an attempt to privatize resources and knowledge, which was previously deemed freely accessible to all persons and countries¹⁰.

Necessity can perhaps justify plant variety protection. Countries find themselves being automatic members of the international treaties on plant varieties if they subscribe to the provisions of the World Trade Organization. From a commercial breeders’ perspective, plant variety protection is very important as it promotes food security. Application of genetic engineering is known to offer people a chance to increase significantly crop yields in the future given the fact that world food crisis is looming. Protection of plant varieties plays a role in ensuring that food security is enhanced, which might consequently resolve the issues of food shortages in the long-term. The government has various options as regards to plant variety protection. For instance, it might decide to protect only commercial breeders through introduction of patents. Consequently, this will help a state in complying with the TRIPS agreement. Another alternative is to initiate plant breeders’ rights, together with establishing some exclusion that support domestic breeders and farmers. Granting rights to breeders only and introducing a profit-sharing scheme is an additional option available to the government. The scheme will have the responsibility of ensuring that biodiversity is enhanced. Finally, the government has an alternative of protecting all relevant stakeholders in the field of agriculture. This means that all farmers, locals, state corporations, and other concerned bodies will be consulted effectively. Under the last option, the government takes into account the provisions of TRIPS, as well as other international and local treaties.

Patent Protection through TRIPS

A number of legal ratifications have been set in place to provide patents to plant varieties, both domestically and globally. The state has been adopting various legislative instruments aimed implementing some of these international commitments, including TRIPS. The country is a member of several agreements that protect plant varieties. Some of these agreements aim at conserving and sustaining the use of biological resources. Some are meant to protect the traditional knowledge regarding farmers’ rights while others are expected to offer intellectual property rights as far as commercial usage of plant varieties are concerned. The country is a member of the Biodiversity Convention that offers the legal framework for the maintenance and usage of biological resources. Biodiversity Convention shows the country’s sovereignty to the utilization of biological resources. India is able to control its resources through the introduction of common concern conception. This implies that protection of biodiversity is not only of interest to the country, but also to the international community. The treaty on Biodiversity shows the country commitment to bolster food security. The major provision of the Convention is that the government should always preserve traditional knowledge while at the same time enabling its applicability. Recognition of traditional knowledge does not necessarily aim at benefiting the locals, but instead it meant to give local farmers an advantage pertaining to production of food crops. The benefits from biological resources are shared among various stakeholders meaning that the treaty does not favor just one group. The treaty suggests that donor countries should be compensated for their contribution in the generation of technology and knowledge¹¹. The access to information is often based on reciprocally approved terms and in most cases, it is based on preceding informed permission of the contributor country. Countries that produce certain microorganisms, plants, or even animals, which are used for commercial purposes, have the right to benefit from the use of technology or breed. Article sixteen of the Biodiversity Convention suggests that intellectual property rights are not meant to weaken the provisions of the convention. Based on this, the management of biological resources ought to be in line with the intellectual property rights provisions.

The country pledges its loyalty to PGRFA agreement, which is an accord that is known to assume the principle of Biodiversity Convention to some degree, as well as scrutinizing the consistent goals of conservation, sustainability, and profit allocation¹². The major aim of the PGRFA treaty is to promote sustainability in the agricultural sector, as well as ensuring adequate supply of food to the population. Through the accord, it is achievable to change any legal provisions of the plant inherent resource fundamentally in the global law. The previous instruments, including the International Undertaking of 1983, supported equitable distribution of plant genetic resources¹³. However, the new treaty is different in a number of ways as it affirms the sovereignty of any state. Moreover, the treaty allows the application of intellectual property rights¹⁴. PGRFA accord serves a great purpose in the global legal structure since it centers on the situation of farmers, their contribution in conservancy agendas, such as agro-biodiversity, and the privileges that breeders have over their material goods, including seeds and conventional acquaintances. From this perspective, it is established that PGRFA treaty is concerned with recognizing the efforts of farmers as far as conservation and enhancement of plant genetics is concerned¹⁵. Under the treaty, each member state is charged with the responsibility of ensuring that certain plant variety and technology is protected. For instance, each member state is expected to establish the type of traditional knowledge to be protected. Unfortunately, the treaty does not talk about the rights of farmers in relation to property. Farmers are simply entitled to the usage, saving, exchange, and disposal of their farm-saved seeds. PGRFA treaty is considered important owing to the fact that it does not only provide a legal framework for conservation of the plant variety and its sustenance, but also describes a clear system for access and benefit sharing. In this regard, the treaty offers an indirect and direct link to intellectual property rights mechanisms¹⁶.

The country is one of the founding members of the World Trade Organization. In this case, it is expected to implement the provisions of the TRIPS Agreement. The treaty offers some form of intellectual property rights, even though at a minimum level. All member states are expected to implement TRIPS Agreement, which has a special provision on the intellectual property rights. Consequently, countries have been forced to readjust their patent laws in order to meet the requirements of the international treaty, which is compelling¹⁷. The provisions of the TRIPS Agreement differ greatly with the requirements of the Patent Act of 1970. The state is has been forced to adopt the introduction of plant variety protection, which is compulsory under article 27, section three, subsection B of the TRIPS Agreement. The article gives countries an option of either choosing Sui generis or embarking on patents. In this regard, states are supposed to introduce patents regarding protection of plant varieties or alternatively, they can adopt plant breeders’ rights. Plant breeders’ privileges comprise of the intellectual property rights, which are perhaps directly related to copyright, although they were classified under the UPOV principle¹⁸. The UPOV Convention suggests that commercial breeders should be granted exclusive rights over their inventions, even though the some exceptions have to be instituted to differentiate them from patents. The exceptions are meant to protect the interests of farmers and other breeders, particularly those operating at the local level. PBRs offer an alternative to patents while Sui generis is an option with various provisions. Under Sui generis, a country is allowed to come up with various provisions that will best protect the interests of its breeders, farmers, and the community in general¹⁹. Sui generis plays an important role in understanding TRIPS Agreement since it permits each country to explore an option to patent as opposed to what articles seven and eight suggest in the TRIPS Agreement²⁰.

Generally, the international legal perspective in relation to plant variety protection and management is mired by inconsistency and confusion. On one hand, the accords on biodiversity and PGRFA present answers as regards the association between intellectual property rights and ecological protection. The TRIPS Agreement on the other hand talks about intellectual property rights without addressing the issue of environmental conservation and protection of traditional knowledge. Since there is no single treaty that addresses the issue of plant variety protection, various treaties ought to be understood from an implementation perspective.

Alternatives to Plant Variety Protection

Apart from the use of patents in protecting new varieties of plants, the issuance of exclusive marketing rights is perhaps viewed as an alternative. However, issuance of patents is the most valid and reliable way of protecting the circulation of plant variety without the knowledge of the owner. It is established that the use of patent is not the only way to protect the variety of a plant. In this regard, the plant variety is to be kept a secret. The technique to be chosen in shielding the plant variety depends on the benefits attached to it and some of the restrictions. Moreover, the cost of the method matters since some methods are very expensive as compared to others. Many breeders prefer the use of plant variety protection as opposed to the use of patent. The 1930 plant patent act was the first method applied in protecting the interests of farmers, particularly in relation to innovation an generation of new knowledge. However, the use of patents was unsuccessful mainly because of the opposition from various stakeholders. Patents were used in protecting asexually reproduced plants, such as cultivars, apart from tubers. In the subsequent years, especially after 1960, some of the countries in Europe came up with the breeders’ rights laws, which were aimed at giving some farmers an advantage. It was established that sexually reproduced varieties of plants were homogeneous and constant enough to be incorporated into the laws. In early 1970s, the Plant Variety Protection Act was instituted, with the main purpose of encouraging the development of new plant varieties, particularly those that reproduce sexually. The proprietors of new plant varieties were given elite marketing privileges in the United States. However, the new way of protecting the plant variety had some requirements. For instance, the plant had to be homogeneous, established, and separate from other plant categories. Accordingly, some plant crossbreeds, such as toadstool, microorganisms, and those considered of first age group were disqualified from the PVP Act. Additionally, plant species that were in the market in the United States for over a year were not included in the act.

After the date of issuance, the official document of security under the plant variety protection is considered valid for at least eighteen years. The possessor of the knowledge or the breeder has some privileges to sell the plant variety or knowledge, but only as a group of specialized seeds. The Federal Seed Act of the United States has clear definitions of the process of acquisition. The owner does not have any right once he or she receives payment of the technology. The law on marketing suggests that the farmer has the right to retain the seed if he or she plans to use it for domestically. Alternatively, the farmer might decide to seed the seed to the neighbor, but on small-scale since he or she does not have exclusive rights over the breed. It is concluded in this section that, even though the plant variety can be protected through the issuance of marketing rights, only the patent can protect plant varieties better.

Meaning of Protect Plant Variety

As already discussed in the previous sections, protection of plant variety serves a number of purposes with the most important being promotion of food security. The farmers and the local community should be allowed to retain some of their traditional technologies, which play a role in promoting the production of food crops as opposed to cash crops. Plant variety is a word used in legal terms to refer to the recognition of cultivated plant as a variety that should be protected in order to give the breeder some advantage in the market.

Conclusion

Necessity can, perhaps, justify plant variety protection. Countries find themselves being automatic members of the international treaties on plant varieties if they subscribe to the provisions of the World Trade Organization. From a commercial breeders’ perspective, plant variety protection is very important as it promotes food security. Application of genetic engineering is known to offer people a chance to increase significantly crop yields in the future given the fact that world food crisis is looming. Protection of plant varieties plays a role in ensuring that food security is enhanced, which might consequently resolve the issues of food shortages in the long-term. The government has various options as regards to plant variety protection. For instance, it might decide to protect only commercial breeders through introduction of patents. Consequently, this will help a state in complying with the TRIPS agreement. Another alternative is to initiate plant breeders’ rights, together with establishing some exclusion that support domestic breeders and farmers. Granting rights to breeders only and introducing a profit-sharing scheme is an additional option available to the government. The scheme will have the responsibility of ensuring that biodiversity is enhanced. Finally, the government has an alternative of protecting all relevant stakeholders in the field of agriculture. This means that all farmers, locals, state corporations, and other concerned bodies will be consulted effectively. Under the last option, the government takes into account the provisions of TRIPS, as well as other international and local treaties.

Bibliography

Biswajit Dhar, Sui Generis Systems for Plant Variety Protection (1st, Quaker United Nations Office, Geneva 2002) 32

Carl F. Jordan, ‘Genetic Engineering, the Farm Crisis and World Hunger’ [2002] 52 BioScience 523

CBD, ‘Access to Genetic Resources’ (cbd.int 1997) Web.

Deputy Director general (Operations), ‘World Food Summit: Rome Declaration and Plan of Action’ (fao.org 1996) Web.

EconomyWatch, ‘Indian Economic Survey 2002-2003 Highlights’. Web.

F. Cullet & R. Coluru, ‘Plant Variety Protection and Farmer’s Rights Towards a Broader Understanding’ [2003] 24 Delhi Law Review 41.

FAO, International treaty on plant genetic resources for food and agriculture (FAO, Rome 2009) 55

FAO, The State of Food Insecurity in the World (4th, Food and Agriculture Organization of the United Nations, Rome, 2002) 5

International Convention for the Protection of New Varieties of Plants, as revised at Geneva 1991.

International Covenant on Economic, Social and Cultural Rights 1966 s 2200A(XXI)(Art. 8).

INTERNATIONAL UNDERTAKING ON PLANT GENETIC RESOURCES 1983 s 8(83)(5).

José Falck-Zepeda, Biotechnology and sustainable livelihoods – findings and recommendations of an international consultation (International service for national agricultural research (ISNAR), The Hague 2002) 11

Lori Ann Thrupp, ‘Linking Agricultural biodiversity and Food Security: the Valuable Role of Agro-biodiversity for Sustainable Agriculture’ [2000] International Affairs 265

Regine Andersen & Tone Winge, Realising Farmers’ Rights to Crop Genetic Resources Success Stories and Best Practices (Routledge, Oxford 2013) 240

Martin Swaminathan, ‘Ethics and equity in the collection and use of plant genetic resources: Some issues and approaches. ‘ in Consultative Group on International Agricultural Research (eds), Ethics and equity in conservation and use of genetic resources for sustainable food security: proceedings of a workshop to develop guidelines for the CGIAR, 1997, Foz do Iguaçu, Brazil (IPGRI, Cornell 1997).

New Policy on Seed Development 1988 s 11(71)(88.SD.I) CBD, ‘Technical and Scientific Cooperation’ (cbd.int 1997) Web.

The right to adequate food 1999 s 12(11)(5).

Trade-Related Aspects of Intellectual Property Rights 1994 s Annex 1(C)(319).

United Nations, Achieving Sustainable Development and Promoting Development Cooperation Dialogues at the Economic and Social Council (1st, United Nations, New York 2008) 312.

United Nations, ‘Convention on Biological Diversity ‘ (1992) Web.

WTO, ‘MARRAKESH DECLARATION OF 15 APRIL 1994’ Web.

Footnotes

1 – Trade-Related Aspects of Intellectual Property Rights 1994 s Annex 1(C)(319)
2 – Carl F. Jordan, ‘Genetic Engineering, the Farm Crisis and World Hunger’ [2002] 52 BioScience 523
3 – WTO, ‘MARRAKESH DECLARATION OF 15 APRIL 1994’ Web.
4 – The right to adequate food 1999 s 12(11)(15)
5 – Often as consequence of fall in commodity prices brought about by wide spread industrialised farming and agricultural subsidies in the north, small farmers in developing countries are forced to abandon cultivation of food crops and switch to cash crops, in order to eke out a reasonable living. In fact, failure by the State to regulate individuals or groups so as to prevent them from violating the right to food amounts to a violation of its obligations. (See F. Cullet & R. Coluru, ‘Plant Variety Protection and Farmer’s Rights Towards a Broader Understanding’ [2003] 24 Delhi Law Review 41).
6 – Regine Andersen & Tone Winge, Realising Farmers’ Rights to Crop Genetic Resources Success Stories and Best Practices (Routledge, Oxford 2013) 240
7 – Deputy Director general (Operations), ‘World Food Summit: Rome Declaration and Plan of Action’ (fao.org 1996) Web.
8 – United Nations, Achieving Sustainable Development and Promoting Development Cooperation Dialogues at the Economic and Social Council (1st, United Nations, New York 2008) 312.
9 – Lori Ann Thrupp, ‘Linking Agricultural biodiversity and Food Security: the Valuable Role of Agro-biodiversity for Sustainable Agriculture’ [2000] International Affairs 265
10 – New Policy on Seed Development 1988 s 11(71)(88.SD.I)
11 – CBD, ‘Technical and Scientific Cooperation’ (cbd.int 1997) Web.
12 – United Nations, ‘Convention on Biological Diversity ‘ (cbd.int 1992) Web.
13 – INTERNATIONAL UNDERTAKING ON PLANT GENETIC RESOURCES 1983 s 8(83)(5)
14 – Martin Swaminathan, ‘Ethics and equity in the collection and use of plant genetic resources: Some issues and approaches. ‘ in Consultative Group on International Agricultural Research (eds), Ethics and equity in conservation and use of genetic resources for sustainable food security: proceedings of a workshop to develop guidelines for the CGIAR, 1997, Foz do Iguaçu, Brazil (IPGRI, Cornell 1997).
15 – FA0, International treaty on plant genetic resources for food and agriculture (FAO, Rome 2009) 55
16 – CBD, ‘Access to Genetic Resources’ (cbd.int 1997) Web.
17 – EconomyWatch, ‘Indian Economic Survey 2002-2003 Highlights’ Web.
18 – International Convention for the Protection of New Varieties of Plants, as revised at Geneva, 1991 s L(192)(64).
19 – Biswajit Dhar, Sui Generis Systems for Plant Variety Protection (1st, Quaker United Nations Office, Geneva 2002) 32
20 – FAO, The State of Food Insecurity in the World (4th, Food and Agriculture Organization of the United Nations, Rome, 2002) 5

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