By: Héctor Chagoya

The Law on Plant Varieties: Main Scope.

As of October 26, 1996, the Law on Plant Varieties provides protection to the breeders of novel, distinct, stable and homogeneous plant varieties during a term of 18 years for perennial species and 15 years for other species. The scope of the law is within the provisions of the International Convention for the Protection of New Varieties of Plants (UPOV Convention). Therefore, it is possible to claim priority within 12 months as of the filing date of an application in any other country that is a party of the Union for the Protection of New Varieties of Plants (UPOV). In addition, it is important to consider that applications for all species are accepted.

Trends for Plant Protection in Mexico.

Plant Varieties are expressly excluded from patent protection in Mexico according to the Industrial Property Law. Therefore, the only possible protection for plant developments is by means of the Law on Plant Varieties. However, there are patent applications related to transgenic plants that are being studied at the Mexican Institute of Industrial Property (IMPI). The criterion in regard to the patentability of transgenic plants has not been yet established in Mexico, although the trend is towards the grant of such patents according to the criteria recently set forth by the European Patent Office. Meanwhile, the only possible protection for plants is given by means of the Law on Plant Varieties with the disadvantages of the scope of the protection provided by the UPOV Convention.

By October 1999, 279 applications of 30 different species had been filed before the National Service of Inspection and Certification of Seeds (SNICS) all of which have been published in different official publications.

The main species for which protection is sought in Mexico are rose, maize, strawberry, cotton and sorghum, which considered as a whole, cover approximately 75% of the applications. In regard to companies, Asgrow Mexicana, S. A. DE C. V., Bear Creek Gardens, Inc., Delta and Pine Land Company, Meilland Star Rose and Pioneer Hi-Bred International, Inc., considered as a whole, have filed about 55% of the applications.

In regard to the countries that generated the varieties for which protection is sought in Mexico, 33% of the applicants reside in Mexico, 43% in the USA, 14% in France and the rest in the Netherlands, Italy, Canada, Cuba, Israel and Japan.

Implementing Plant Protection.

All of the applications for Breeder Title of Plant Varieties are pending. Prosecution of said applications has been very slow due to administrative problems in the implementation of the law.

The SNICS received a considerable number of applications from the IMPI since the latter acted as the receiving office of any application related to plants before the issuance of the Law on Plant Varieties. The reception of the applications by the IMPI was made according to the administrative proceedings of the Industrial Property Law. Likewise, the first applications received by the SNICS were filed according to said proceedings as well, since the Law on Plant Varieties established that such proceedings were to be applied for as long as the corresponding regulations were pending.

In addition to the administrative requirements, other issues such as the functions of the members of the Committee of Qualification of Plant Varieties, which is in charge of the technical examination of the applications, as well as other necessary definitions were expected to be included in the regulations.

The regulations of the Law on Plant Varieties were issued until September 25, 1998 and were in force a day after. However, these regulations were still silent in regard to almost all of the administrative requirements previously defined in the Industrial Property Law, and therefore, there are contradictory requirements for applications filed on or after September 25, 1998 in regard to those filed before said date. Unfortunately, the Authorities have not defined yet their criteria in respect to the majority of the administrative requirements.

For instance, the formalities required for Powers of Attorney and other legal instruments coming from foreign countries have not been established yet. If the criterion for these documents is not set out, foreign applicants will have to furnish a legalized power of attorney. In the case of Legal Persons, a copy of the document in which the person who signs the power of attorney is given authorization to do so would be required also. Additionally, translations by authorized translators of any document in a language different to Spanish should be provided.

As it is easily concluded, this practice would increase considerably the costs of the applications, and would delay the prosecution of the same, since not even the times for furnishing such documents are well defined in the law. In addition, there are no authorized translators for these purposes in Mexico. The SNICS is analyzing these facts and is expected to set forth the criteria in this regard in the next months.

As a consequence of the aforementioned problems, other provisions of the law have not been complied with as well. For instance, according to the law, a Certificate of Appliance should have been given to any applicant after 120 natural days as of the filing date of the application. This provision is clearly included in the law in order to comply with Article 13 of the UPOV Convention. However, there is not any Certificate of Appliance issued as yet.

The officers in charge of the prosecution of the applications have been working in technical aspects as administrative criteria are discussed. Therefore, an expedite issuance of the corresponding Certificates of Appliance, or even of the Breeder Titles, is expected once said criteria are finally defined.

"The content of this article is intended only to provide general guidelines related to this particular matter. For your specific circumstances, full specialist advise is recommended"