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 Main subject - july/aug 2006
Protecting the Property
Dr. Silmar Peske
peske@ufpel.edu.br
Dr. Orlando Lucca Filho
Dr. Antonio Carlos Barros
Dr. Paulo Dejalma Zimmer
The central subject of this SEED News edition approaches one of the seed bases the seed business, that is, intellectual protection of the processes that generate and develop new and improved varieties and/or hybrids. For that, International Seed Federation seminars about this subject that took place in Berlin in 2004 and Copenhagen in 2006 were the source.
Why to protect?
There are several reasons to justify the obtaining of more and improved foods or fibers, and all of them pass by the need for innovation and by the natural trade rule, so called competition. These are the motors for both economical and social growth, which provide us better life quality than our ancestors and a better one to our children, more fortunate than us. Most of the inventions fail, and the investment made on these failed inventions mean losses. So, successful innovations must be compensated, otherwise investments on new technologies will be even more incipient. To avoid this, competition must be moderately limited. So, the protection system to be used must have a balance between innovation and imitation, as well as exclusivity and competition. The difficulty is finding the suitable balance.
Obtaining high performance seeds involves several and critical business decisions, in which the long and complex way from germplasm to seed the farmer will use, includes the following steps:
1. Prioritizing long-term investments on research capacity and market development;
2. Allocating resources for research projects that have higher success potential;
3. Developing varieties or hybrids with special characteristics. This is the most critical and long stage;
4. Producing commercial seeds keeping genetical quality, with high physiological and health quality;
5. Seeds marketing and sales to farmers. Average performance materials will be hard to sell because the farmers look for high productivity materials, which provides a good return for their investments.
This way, obtaining profits that match the efforts in research and development will perpetuate this cycle via reinvestment in germplasm and process technologies. Commercial varieties and hybrids do not happen by chance. Innovative schemes for plant selection and several scientific research tools are compulsory requirements.
Trade globalization caused countries to adopt intellectual plant protection mechanisms according to the agreement known as TRIPS (Trade Related Aspects of International Property Rights). Currently, more than sixty countries have a kind of protection, and in developed countries, where competition is higher, protection mechanisms are even stronger.
Countries in which plant protection is weak or does not exist, it can be considered that first line materials will exist no more, or the delay in having them will be significant. For example, Monsanto has developed a special oily rich variety of soybeans, which is good for health and is marketing it in countries in which variety protection is robust. So, countries that do not have such protection will not access such kind of material. The consequence is that, price per price, market will prefer healthier soybeans grains instead of other ones. As a result, the country that does not have a suitable variety protection system will be commercially marginalized.
How to protect?
There are several forms of commercial protection, either through an obtaining process for a given material, which can be a variety or a specified event, introduced into a variety. Variety protection is usually made by means of the UPOV, according to the rules established by the conventions of 1978 or 1991. In USA, asexual propagation materials (general fruitful plants) can be patented since beginning the 20th century. By the other hand, the protection of a process or event by means of patent is used almost over the whole world. There is also the protection for commercial secrets, very used for pure lines of hybrids and for the registered trademark identifying it, usually a class of product.
Analyzing the strength of one of these ways of protection, patent is the best; however it can be polemic under some aspects. It has been causing protection through UPOV's conventions to be common.
Details of the main characteristics of each protection form will be given as follows:
UPOV's conventions
There are two UPOV conventions under which materials can be protected: 1978's and 1991's, respectively. On both, to protect a material it must reach three essential characteristics, namely: it must be different, stable, and homogeneous.
The 1978's convention, in which South American countries are signatory, contemplates the protection until the seed, that is, the farmer who buys seeds of a protected variety can save part of its harvest for sowing in the next crop. This is the great inconvenience of the convention. On the other hand, UPOV's 1991 convention contemplates variety protection until the harvested material, such as grain, that is, if the farmer wants to save part of its harvest to the next crop, even so he will have to pay royalties, that is, paying for plant breeders rights, which normally oscillates around 5% over the seed value.
An important aspect of UPOV's convention is that every country that has a material protected by a convention will have reciprocity in another country, which makes exchange easy. Currently, there are more than 60 countries affiliated to UPOV. Today, if a country is willing to become a member it will have to adopt 1991's convention. A significant increase in the number of countries affiliated to UPOV signatory of 1991's convention is expected, especially in face of the tendency that countries that are signatory on 1978's convention start using 1991's.
Other aspect of UPOV's convention is the exception given to the melhorista, that is, he can enter a field in which a recently launched variety is being produced and collect samples for his breeding program. However, the rule states that every variety, to be protected, must be different, and such difference must be great and valuable, otherwise it will be considered essentially derived and its use will only happen with the permission of its initial obtainer.
With regards to an essentially derived variety, there is some uncertainty as to its similarity level to be used in the divisor; however it seems that there is a consensus that molecular markers in a number of 100 to 200 should be used. In case similarity is superior to 90%, the material will be considered essentially derived. Recently, it has occurred, in Europe, the case of an essentially derived wheat cultivar. It caused the involved parties, including UPOV and ISF, to work in accelerated rhythm as to define such suitably feature.
For obtaining a new variety the breeder must have access to a genetical variability database. Such need served as basis to UPOV to the breeders for giving free access to enter production fields, and collect materials. Improvement is obtained by increasing the performance of the varieties through compositions and combinations of favorable genes. Anyway, there is a consensus that it is necessary a balance between access and protection due to the risk of stopping genetical advance or the creation of monopolies - both undesirable situations.
page 2 ->> Protecting the Property
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