By Adrian Gonzalez. Patents Engineer.
The proposal of the Argentine National Government for a package of laws and reforms includes a change in the Argentine Seed Law from UPOV 78 to UPOV 91. This implies significant changes in the Argentine Seed Law in favor of the breeder, which would be controversial if adopted, considering the current exceptions for farmers.
A comparative table between UPOV 78, UPOV 91 and Patent Laws is attached:
Provision |
UPOV 1978 |
UPOV 1991 Act |
TRIPS compatible Patent Laws |
Protection coverage |
Varieties of species / genera as listed. Minimum of fi ve on joining. 24 after 8 years | Minimum of fi fteen on joining. 10 years later, must protect all plant genera and species |
Inventions |
Requirement |
Novelty (variety must not have been commercialized) | Novelty (variety must not have been commercialized) | Novelty (invention must not have been published) Distinctness Distinctness Non-obviousnes |
| Distinctness | Distinctness | Non-obviousness (Inventiveness) | |
| Sufficient uniformity having regard to the particular features of the variety’s propagation | Sufficient uniformity having regard to the particular features of the variety’s propagation | Industrial applicability (usefulness) | |
| Stability | Stability | ||
Protection term |
Minimum 15 years (18 years for trees and vines) | Minimum 20 years (25 years for trees and vines) | Minimum 20 years (TRIPS) |
Protection scope |
Production for commercial purposes and offering for sale, marketing and repeated use for the commercial production of another variety | Commercial transactions with propagating material. Harvested material protected only if produced from propagating material without breeder’s permission and if breeder had no reasonable chance to exploit his right over it. | Making the patented product, using the patented process or using, offering for sale, selling or importing for those purposes the patented product obtained by the patented process |
Breeders’ exemption |
Mandatory. Breeders free to use protected variety to develop new variety | Permissive but Essentially Derived Varieties can only be marketed with the agreement of the breeder | No |
Farmers’ privilege |
Minimum scope of protection allows farmers’ privilege | Each member country can define a farmers’ privilege suitable for its condition | No |
| Any species eligible for PBR protection cannot be patented | This Act is silent on this question: countries may choose to exclude plant varieties from patent protection | Many countries exclude plant varieties as such from patent protection |
https://www.fao.org/3/y5714e/y5714e03.htm
The Argentine Seed Law of 1978 established a series of rights for farmers, such as the right to use their seeds for subsequent planting. However, the Argentine Seed Law of 1991 could restrict these rights.
The main difference between the Argentine Seed Law of 1978 and 1991 are as follows:
UPOV 91 could:
- Restrict farmers’ rights to freely use their seeds.
- Allow varieties to be patented.
- Extend breeders’ rights to “harvested material” in case of unauthorized use of the propagation material.
- Require anyone using a PVP (Plant Variety Protection) variety in breeding to make major changes so tha the “new” variety is not considered “essentially derived” and falls into the ownership of the first breeder.
The Argentine Seed Law is a complex issue with important implications for farmers, breeders and the food industry in general.
