Intellectual property law protects plant varieties under the rights of the plant breeder, which grants legal protection to individuals or corporations that obtain a plant variety through plant breeding procedures. For this to be applicable, the plant variety must be new and adhere to the technical requirements of "distinction,uniformity, and stability" (DUS).
A plant breeder´s rightis a recognition by the State of individuals or corporations that have discovered or created a new plant variety; this new variety is then set out in a plant breeder certificate granting the plant breeder the exclusive right to use said plant variety for growth and cultivation during a fixed period. Once that period ends, the plant variety becomes public domain.
Provisions relating to the requirements of protection, rights, and limitations on new plant varieties are detailed in the International Convention for the Protection of New Varieties of Plants (UPOV Convention, 1978). In the Andean Community, such regulations are set out in the Common Regime on the Protection of the Rights of Breeders of New Plant Varieties (Decision 345). Ecuador also has a specific legal body to govern such matters, which is the Organic Law of the Social Economy of Knowledge, Creativity, and Innovation and its corresponding Regulation.
The protection period granted depends mainly on the group to which the plant variety belongs to. To this end, two groups have been established: the first group includes vines, forest trees, and fruit trees (including their rootstock); and the second group includes all other species. The UPOV Convention, ratified by Ecuador in May 1997, provides that the protection of plant varieties is granted beginning on the date of approval and lasts at least eighteen (18) years for species in the first group and fifteen (15) years for species in the second group.1 Decision 345, meanwhile, grants protection for a period of twenty (20) to twenty-five (25) years for species in the first group and fifteen (15) to twenty (20) years for all other species. These terms are always counted from the date the plant variety is approved.2
Ecuador's legislation has certain discrepancies relating to the type of protection and the time at which it is granted. Its Intellectual Property Law, which was repealed in 2016 but is applicable to all requests presented before this date, allows for a period of protection equal to that set out in the community regulation. However, it contradictorily determined that the protection granted would begin from the date plant variety is requested.3 Current legislation corrected this error, providing protection from the date the right is granted. Nevertheless, the period itself is more restrictive, establishing eighteen (18) years for varieties in the first group, and fifteen (15) years for the second.4
To this effect, a plant breeder that protects a plant variety in the first group in Peru, Bolivia, or Colombia, will obtain a minimum protection of twenty (20) years for a variety belonging to the first group, while in Ecuador, the same variety will not be protected for more than eighteen (18) years, thereby contradicting the supranational regulation.
The Treaty Creating the Court of Justice of the Andean Community imposes upon member states the obligation to adopt measures to enforce the laws in its legal system and the commitment to avoid adopting measures that are contradictory or that could create obstacles to its application.5 The bylaws of said Court considers infringing conduct to be the enactment of internal norms that contradict the Andean legal system.6
For this reason, the provisions of the Organic Law of Social Economy of Knowledge, Creativity, and Innovation, which contradict the community regulation, constitute an infringing conduct which could be considered lack of compliance by Ecuador. Consequently, the National Intellectual Rights Service should draft a bill to correct the aforementioned inconsistencies and send it to the National Assembly via Ecuador's president for processing.
1 International Convention for the Protection of New Varieties of Plants Varieties, Article 8 Duration of Protection, 1962
2 Common Provisions on the Protection of the Rights of Breeders of New Plant Varieties; Chapter IV, Registration, Article 21.
3 Intellectual Property Law, Book III, Section II, Registration Procedure, Article 268.)
4 Organic Law of the Social Economy of Knowledge, Creativity, and Innovation, Title IV; Plant Varieties; Section V, Rights and limitations, Article 485.
5 The Andean Community Treaty Creating the Court of Justice, Article 4.
6 Bylaws of the Andean Community Justice Tribunal, article 107, second paragraph.
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