Protecting Plant Varieties
Introduction
Plant varieties are excluded from patent protection by the Intellectual Property Code (“IP Code”)[1] but are protected instead as a sui generis proprietary right under the Philippine Plant Variety Protection Act (R.A. 9168).
This article outlines the salient features of the Act.
Applicant for Plant Variety Protection
Any breeder
Co-breeders (two or more persons)
Employer or Employee (if there is a written agreement).[2]
Subject matter
Any plant variety can be covered by the plant variety protection. Plant includes terrestrial and aquatic flora, while a variety may be represented by seed, transplants, plants, tubers, tissue culture plantlets, and other forms.
“Variety" means a plant grouping within a single botanical taxon of the lowest known rank, that without regard to whether the conditions for plant variety protection are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant groupings by the expression of at least one (1) characteristic, and considered as a unit with regard to the suitability for being propagated unchanged.[3]
Conditions for Grant
The Certificate of Plant Variety Protection is granted to varieties that are new, distinct, uniform, and stable.
A plant variety is deemed new if it has not been sold or shared for commercial purposes without the breeder’s permission:
In the Philippines: for more than 1 year before filing the application; or
In other countries: for more than 4 years, or 6 years for trees and vines, before filing.[4]
A plant variety is deemed distinct if it is clearly different from all known varieties. Once an application to protect or register a variety is filed in the Philippines or another country, the variety becomes public knowledge—as long as the application is eventually approved or registered.[5]
A plant variety is deemed uniform if its relevant characteristics are consistent, allowing for expected variations due to propagation.[6]
A plant variety is considered stable if its relevant characteristics remain the same after repeated propagation or at the end of each propagation cycle.[7]
Terms of Protection
Trees and vines: 25 years
Other plant types: 20 years[8]
Rights of Holders of Plant Variety Protection
For propagating materials, holders of plant variety protection enjoy production, conditioning, commercial, and stocking rights.[9]
The above rights extend to all harvested materials if they were produced through the unauthorized use of the propagating materials, unless the rights holder had the reasonable chance to enforce those rights.[10]
Coverage of Protection
The rights of a holder extend to plant varieties that are:
essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety;
not clearly distinct from the protected variety; and
varieties whose production requires the repeated use of the protected variety.[11]
Exceptions to Plant Variety Protection
The protection does not apply to the following::
1. People using the protected variety for noncommercial and experimental purposes.
2. Breeders developing other plant varieties from the protected variety, subject to special rules.
3. Small farmers who save, use, exchange, share, or sell their farm produce from a protected variety, as long as it’s not for large‑scale commercial reproduction. They may also exchange or sell seeds among themselves for reproduction or replanting on their own land.[12]
Exhaustion of Plant Variety Protection
The Certificate of Plant Variety Protection does not extend to acts concerning the protected variety or any material derived therefrom that has been sold or marketed with his consent in the Philippines, unless it involves:
Additional propagation of the protected variety,
Export of the protected variety, which enables the propagation of the variety, into a country that does have plant variety protection, except where the export is for final consumption. [13]
Acts constituting Infringement
There is infringement when the protected variety, without authority, is commercialized, exported or imported, sexually multiplied, used to produce hybrid or different variety, or propagated using protected seeds.[14]
Summary
The protection of plant variety comes in the form of a long-term Certificate of Plant Variety Protection. Infringement acts are discouraged or penalized by damages, imprisonment, and injunction—remedies that are substantive enough to protect the right holders.
[1] Section 22.4, IP Code
[2] Sections 17-19, R.A. 9168
[3] Section 3 (i) and (m), R.A. 9168
[4] Section 5, R.A. 9168
[5] Section 6, R.A. 9168
[6] Section 7, R.A. 9168
[7] Section 8, R.A. 9168
[8] Section 33, R.A. 9168
[9] Section 36, R.A. 9168
[10] Section 38, R.A. 9168
[11] Section 39, R.A. 9168
[12] Section 43, R.A. 9168
[13] Section 44, R.A. 9168
[14] Section 47, R.A. 9168
