Posted by: Aura Torrez | Associate at Alvarado y Asociados.
According to Law No. 318 Plant Variety Protection Law, establishes as a Plant Variety the set of plants of a single botanical taxon of the lowest known rank, which regardless of whether or not it fully meets the conditions for the granting of a breeder’s right, you can:
- Be defined by the expression of the characteristics resulting from a certain genotype or a certain combination of genotypes.
- Be distinguished from any other group of plants by the expression of at least one of said characters, and
- Be considered as a unit, taking into account its ability to propagate without alteration.
The Breeder is the natural or legal person who, either by natural means or genetic manipulation, has created or discovered and developed a new plant variety.
What is the breeder’s right of a plant variety?
The breeder’s right is considered as an intellectual property right, which is marketable, transferable and inheritable. The right holder may also grant third parties exploitation licenses for the use of protected varieties. The Breeder’s Right is applicable to varieties of all plant genera and species that have been developed and obtained through an improvement process inherent to the genus and species in question.
The breeder’s authorization will be required for the acts carried out with respect to the reproduction or multiplication material of the protected variety in the cases of production or reproduction, preparation for reproduction or multiplication purposes, commercialization, export, import and donation, and the breeder may establish conditions and limitations to that authorization.
The Breeder’s authorization will not be required when it constitutes a source or research inputs to contribute to the genetic improvement of other plant varieties; when the farmer uses for purposes of reproduction or multiplication on his own farm, the product of the harvest that has been obtained by the crop; when the harvest product is used or sold for human or animal consumption or as a raw material.
In order to be granted a breeder’s right for a plant variety, it must have the following characteristics:
- Novelty
- Distinction
- Homogeneity
- Stability
- Has received a denomination (generic designation of the variety)
The breeder’s right is acquired through registration in the Intellectual Property Registry of the Ministry of Development, Industry and Commerce and the granting of the breeder’s title. This right, counted from the date of granting of the protection title, will have a duration of 20 years for all species. This right will remain in force by paying the annual maintenance fee. Once the period of protection of the plant variety has expired, its use and exploitation pass into the public domain.
The free exercise of the exclusive right granted to the breeder of plant varieties can only be limited for reasons of public interest, in which compulsory licenses can be used for the exploitation of plant varieties, in which case the competent authority will set an equitable remuneration that the beneficiary shall give to the breeder.
A pre-existing denomination of a variety of the same or similar botanical species must be different from any denomination that designates it in the national territory or in any State. It is forbidden to register the denomination of any plant variety as a trademark.