Brazil: Main Aspects Of Plant Protection In Brazil And Its Changes Over These Twenty Years

Plant variety protection (PVP) was discussed in Brazil for the first time in 1976 with the intention of drafting a law that would regulate intellectual property concerning plant breeding since the Brazilian Patent Law never permitted and until now it does not permit protection for any kind of plant. At that time, the matter was restricted only to the people that worked in the Ministry of Agriculture, without greater involvement of the Government and social sectors.

Some years after, due to the advance of the used techniques for planting and the increased investment in agricultural researches, new vegetable species and improved seeds were obtained. In view of this, there was a real need in establishing a regulation that would guarantee some benefit to the breeder/creator to continue investing in this area. Within this context, the Cultivar Protection Law (LPC) was created and promulgated entering into force on April 25, 1997. On this date, Brazil ratified its option by using a sui generis protection mechanism, promulgating the first legislation that ensured the rights to the breeders - Law No. 9456 (Plant Variety Protection - LPC), regulated by Decree No. 2366 of November 5, 1997. In addition to the implementation of the LPC, the National Congress approved, through Legislative Decree No. 28 of 19 April 1999, the text of the International Convention for the Protection of New Varieties of Plants, as Act of 1978. Then, the President of the Republic promulgated the Convention by Decree No 3109 of 30 June 1999, confirming the Brazil's accession to the International Union for the Protection of New Varieties of Plants (UPOV). Subsequently, the National Plant Variety Protection Service (SNPC) was created and the responsible body for the management of administrative and technical aspects related to this theme became the Ministry of Agriculture, Livestock and Food Supply (MAPA). In summary, from that date on vegetable varieties have been protected in Brazil as cultivar.

Cultivars are species of plant that have been improved by changing or by artificial introduction of features that the plant previously did not have and based on their productive characteristics, appearance or other that make it interesting for cultivation. The used technique for plant breeding encompasses from traditional techniques of crossing and selecting between plants until the use of genetic engineering. For granting protection, it does not matter whether the method of obtaining a plant involved rudimentary, conventional or modern and complex techniques. The most important is the result itself, i.e., the emergence of a new cultivar, which accredits the breeder to require its protection.

More specifically, the Brazilian LPC defines that it is liable of protection a novel plant variety or a plant variety essentially derived from another cultivar provided that they meet the conditions of novelty.

The cultivar is considered novel if it has not been offered for sale in Brazil for over twelve months of the date of the request of protection and that; with due regard to the term for commercialization in Brazil, has not been offered for sale in other countries, authorized by the breeder, for over six years for trees and vine species and for over four years for any other species. In other words, the applicant has until one year counted from the first sale in Brazil to request the protection and four or six years if the first sale has been carried out abroad. This first date of trading is a decisive factor for defining whether the cultivar is novel or not.

The cultivar should further present as characteristic distinctness, homogeneousness (uniformity) and stability (DUS).

A cultivar is considered distinct if it presents any characteristic that clearly distinguishes it from other similar plants of the same species. The cultivar should present in culture and should maintain, during the process of propagation, a single set of characteristic that clearly distinguishes it from other similar plants of the same species.

The cultivar is considered homogeneous if when used in planting, on a commercial scale, it presents a minimum degree of variance as to the descriptors, which identify the same. That is, the set of plants used in planting cannot present discrepant characteristics among themselves.

The cultivar is considered stable when reproduced on a commercial scale, maintains its characteristics preserved throughout successive generations.

Once the plant variety meets the requirements explained above (novelty and DUS), protection is granted. The protection of intellectual property rights regarding plant varieties is performed through the granting of a PVP certificate, which is considered a commodity for all legal purposes and it is the only form of protection for plants in Brazil. The cultivar protection generally takes fifteen years counted from the date of granting of the Provisional Certificate of Protection, except for grapevines, fruit trees, and ornamental trees, including in each case, the rootstock thereof, for which the term of protection is eighteen years.

The protection ensures its owner the right to market reproduction in the Brazilian territory, being prohibited third parties, during the period of protection, of producing for commercial purposes, offering for sale or commercialization the propagation material of the plant variety, without authorization of the owner. That means, currently, the scope of protection of a plant variety falls upon the reproduction or vegetative multiplication material of the whole plant (seeds, seedlings, tubers, cuttings, sprouts and clones). The Brazilian cultivar law also guarantees the rights to small producers (farmers). This right is already internationally established, allowing the guard, exchange and use of seeds for the next harvest, which ensures a minimum autonomy for small producers.

Nevertheless, the cultivar definition presupposes the possibility of the plant varieties are multiplied by successive generations. Once available in the market, a protected cultivar is liable to be easily reproduced without the knowledge of its owner.

It is common knowledge, for example, that to produce a new violet seedling, one should only plant a leaf on the ground and water it. In this way, we can create identical seedlings to the plant from which the leaf was removed. However, if the initial plant was a protected cultivar and the obtained plants were intended for trade, the planting moment of the leaf would already be considered a clear violation of right owner protection. If the plants were kept only on the domestic sphere, however, this situation would be considered an exception that would not hurt the right owner.

Owing to Brazil's size, it is very difficult to control and eliminate seeds piracy. It has been a hard task. With the objective of reducing the vulnerability of the protected species that has its reproduction based on vegetative propagation, the Brazilian Congress has discussed a proposal for amending the cultivar law extending the protection to the whole plant and not only until its reproductive structures. In this case, the property right would be extended to any activity with the protected plant (production, marketing, exportation or storage of part or the whole plant) as well as would prohibit the marketing of the harvested products without authorization of the owner of the protection rights. The only exception to this rule would be the members of traditional groups, communities, family and small farmers who make use in their own establishment and donate or exchange between themselves with the only intention of subsistence.

Another important point under discussion is the term of protection. The proposal suggests that grapevines and trees in general have protection for 25 years and the other species for 20 years instead of 18 and 15 years as today. The extension of the protection term is justified by the fact that the current term would not reward the years of researches and spent investments in the project of a new variety since certain plants have a long growth cycle and the gain of the owner after the granting would be small since the cultivar would fall into the public domain quickly.

The new proposal also mentions that any vegetable specie could be protected and not only the species that have their respective minimum descriptors disclosed by the SNPC.

The enforcement of the LPC regarding sanctions on violation of the established rules is also a big concern for agents involved in the seed production system. There is only one article of the LPC that mentions administrative, civil and penal sanctions, limiting understanding and applicability of the provisions. LPC does not establish criminal sanctions or penalties for those who violate breeders' right. In order to strength those rights, the proposal under discussion splits this article so as to better define the administrative, civil and criminal offenses and establish penalties to be applied.

All these changes in the Cultivar Protection Law are important to rectify the divergent themes indicated above through refinement of the control systems and improvement of the technical and administrative provisions, strengthening the Brazilian PVP system and maintaining high levels of incentive for technological innovation so as to bring benefits to all the sectors involved. Moreover, all these changes provide the country with important instruments to insert the agriculture into the global economy context, thereby increasing the technologic interchange with developed countries and the diverse economic blocks.

Source: IPPro Patents, issue 11.

To view the article in full click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.