Eligibility for protection

UPOV vests breeders' rights on new, distinct, uniform and stable varieties. Article 6 of UPOV deems a variety as 'new', provided that, 'at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety' (UPOV, 1991). Thus, novelty is determined solely by prior sale or disposal of the application material. Public knowledge is not a bar to determine whether a variety is new. Similarly, plants already cultivated or discussed in reference collections or in publications will qualify as new varieties. Varieties already known may still become eligible for protection as new variety.

A variety fulfilling the novelty test should still be distinctive, stable and uniform to be eligible for protection. Under art. 7 of UPOV, a variety is distinct if 'it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application' (UPOV, 1991). Under art. 14 of UPOV, a variety is 'a matter of common knowledge' if it has been the subject 'of an application for the granting of a breeder's right' or 'has been entered in the official register of varieties, in any country' (UPOV, 1991). Thus, the only feature required to qualify as distinctive is the ability to be distinguished from another variety either entered in the official register or for which an application has been made.

Interestingly, application material that is well known or is itself a matter of common knowledge (including by prior registry or application for PBRs) can pass the test of distinctiveness, provided the material is distinguishable from another that is a matter of common knowledge. Hence, common knowledge of the application material does not affect the distinctiveness of the variety. That the application material is indistinguishable from materials commonly cultivated or that are well known is not a bar to distinctiveness. Both commonly cultivated and well-known varieties (even if commonly known) that are indistinguishable from other well-known species will continue to qualify as 'distinct' so long as closely related varieties have not themselves become commonly known by registry or by application for breeders' rights. Thus, the distinctiveness requirement in UPOV is a highly diluted version of the novelty and non-obviousness requirements of the utility patent system. This results in allowing both well-known varieties and those trivially different from them to be considered distinct. In essence, a commonly cultivated and well-known variety can be novel and distinct under UPOV, provided it has not been sold or disposed of, and is distinguishable from other varieties that appear in a registry or for which an application has been made.

For example, berry A is a commonly cultivated plant in remote parts of the world, and it can be deemed new provided it has never been disposed of or sold. That berry A is commonly exchanged between people will not bar novelty. For example, the tulsi plant is a commonly found herb in India. Owing to its abundant availability, it is rarely sold, although it is commonly found in most backyards. Similarly, because of social faiths and beliefs, tulsi plants and leaves are commonly exchanged between people. Hence, under UPOV, tulsi will be qualified as new.

Berry A will also qualify as 'distinctive' under art. 7 of UPOV provided it is distinguishable from a variety for which an application has been made or has been entered in the official register. Berry A will pass the distinctiveness test even if it is indistinguishable from a commonly cultivated and well-known berry B, provided no application for protection or registry has been made for berry B. In essence, common knowledge, use or even cultivation of the application material is not an impediment for qualifying as new and distinct under UPOV. The current definition of distinctiveness in UPOV enables breeders to protect known varieties of plants that farmers have cultivated or used for a long time. The low standard for distinctiveness in UPOV allows minuscule innovations in plants to be elevated to the level of an invention. Protecting minuscule innovations results in unjust enrichment to the breeders and depletes prior art, which in this case is biodiversity material. Breeders may, in essence, monopolize genetic material from the public domain and protect such material as a premium innovation.

Attempts to monopolize well-known varieties and the resulting deprivation from the public domain are already rampant. The patenting of ayahuasca, a brew known as the yage or yaje in Colombia, Equador, Peru and Brazil prepared from a plant called the vine banisteriopsis caapi, serves as an example. US Plant Patents 5751 and 5752 (issued on 17 June 1986) on Ayahuasca to Loren Miller of the International Plant Medicine Corporation were revoked in 1999 (Long and D'Amato, 2000). The patents on turmeric and neem, both used in India for several years, substantiate the need to plug loopholes that enable protecting well-known varieties. These loopholes in UPOV showcase its inability to appropriately identify creativity in plant breeding. The loopholes skew UPOV towards breeders to the detriment of farmers' rights, which are of significant importance for developing nations. That some or all of these patents may be revoked on appeal does not negate UPOV's highly diluted eligibility requirements. Furthermore, the transaction costs and economic resources required from already poor economies for the appeal processes to revoke protection of biodiversity materials can be avoided if UPOV's eligibility requirements are strengthened. Thus, the loopholes demonstrate UPOV's inability to be 'an effective sui generis' system as required under TRIPS.

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