When it comes to the application of plant variety regulations we must recognize that they are not commonly discussed or applied in our professional practice at a general level and are instead known to be practiced by a limited number of people who are directly related to the area of study, however it becomes contradictory when most of us at a certain moment of our lives have become the consumers of products that have completed a process of genetic modification either by natural causes or by manipulation through specialized technology.
These modifications can be made by natural persons or legal entities that result in the creation or discovery of a new plant variety, which are properly regulated by our legislation since 1990.
The Law on Protection of New Plant Varieties and its Regulation determines the rules that have to be followed in order to obtain the protection of the rights of such persons who are recognized by the law as plant breeders.
The breeder’s right is applicable to varieties of all plant types and species that have been developed and obtained by a process of improvement. The breeder’s right is marketable, transferable and inheritable.
The rightful authority to register and address an application for registration of plant varieties is the Ministry of Development, Industry and Trade, through the Intellectual Property Office (RPI for its initials in Spanish “Registro de Propiedad Intelectual”).
According to Nicaraguan Law a Plant Variety is a set of plants from a single botanical taxon of the lowest known rank which must met the following conditions for the granting of a breeder’s right,: A) be established by the expression of the characteristics originating from a particular genotype or combination of genotypes. B) be different from any other plant grouping by the expression of one of these characters and C) Considered as a unit, taking into account that it can spread without alteration.
The owner of a plant variety, also known as a breeder can be a natural person or a legal entity. In the specific case that a group of people create or discover a variety, the right of ownership shall belong to all of them, unless is agreed between the co-breeders, that their rights will be shared in equal conditions. If the breeder is an employee of a company proven by a work contract previously concluded, the request to have the breeder’s right; is governed by the employment contract where the variety it’s created or discovered in accordance with the law applicable to the contract.
To obtain the rightful protection it is essential that a plant variety complies with the following characteristics:
E) Has received a particular denomination, meaning a generic designation of the variety.
The duration of the protection given to a plant variety and to a breeder starts on the date the authority issues the protection title or the registration certificate and has a duration of 20 years for all species. Once the period of protection of a plant variety expires, its use and exploitation passes on to public use or domain.
It is important to note that Nicaragua is part of the UPOV international treaty of Plant Variety Protection, whose initials make up the name “International Union for the Protection of New Varieties of Plants”. This system started when the International Convention for the Protection of New Varieties of Plants took place in Paris December 2nd 1961 and from this moment on there has been a recognition to the intellectual property rights of a breeders over their varieties. This is relevant in Nicaragua when submitting the application to the Intellectual Property office to claim the priority of an earlier application indicating the Member State of the UPOV that received the application and the filing date.
Even though in Nicaragua there is a Law and its regulations with other international instruments it is essential for the proper development of this area to strengthen and promote research together with the appropriate infrastructure, modern technology, equipment and proper education to consumers about the risks and benefits obtained by the consumption of products derivative of new technology, since all efforts in this area would be focused on obtaining new plant varieties characterized by higher performance, higher quality, greater resistance to pests and diseases which undoubtedly would ensure higher performance, lower costs on productivity and quality of products in agriculture, forestry and others, helping to minimize wear and waste of natural resources.