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 Main subject - july/aug 2006
continuation: Protecting the Property
Patents
We should understand as patent, the property with financial purpose, with temporal, territorial, and leasing validity. This is why patent is the strongest one and can only be obtained if the material is an innovative one, with industrial use, and not obvious. Innovation must somehow be original, that is, unknown and not used previously. Industrial use means it must be useful; however, some countries have a wider interpretation, involving technical aspects. A patent must also be more than a natural or routine process or an inevitable development of something already known.
An important requirement to patent something is demonstration. The fundamental idea of the patent system is that the inventor explains, in his patent request, how to obtain and to use the innovation to receive, in exchange, a temporary protection. In the event of plants and processes to obtain a given performance or function, seed is used as a deposit.
In this kind of protection, the most important is specificity of the subject that is being protected, it cannot be either too wide or too specific. With regards to amplitude, there is the inconvenience that when analyzing the request it can be interpreted as full of financial interest, and with regards to specificity, there is the inconvenience of an unsuitable protection. The way to apply for protection is the key for success, involving technical-scientifical, law, and market aspects. Patent is not a quality guarantee, either an official technology seal, or an ethical seal for approval or disapproval.
The patent of a variety is not allowed in several countries, including Brazil (in USA it is allowed) with the justification that it is an essentially biological process or, in other words, living organisms cannot be patented. On the other hand, processes for obtaining a variety with specific function can be patented, with a set of genes that provide the formation of a higher quantity of oleic acid in a soybeans variety, for instance.
A variety can have several patents, as the mechanism for gene introduction, kind of transformation, inhibitor, vector, molecular marker, gene silencer, among others. The so-called golden rice has more than 70 patents and soybean RR has more than 10 patents. It means a material, to be marketed under such conditions, must have the allowance by means of a pool of patents.
We have previously remarked that patent is the strongest protection system, and it is due to two factors: the first relates to seed saved by the farmer, which in the patent system the farmer must pay the royalties to the obtainer, and the second one relates to the breeder exception, who in the patents system does not have the privilege of using the protected material in his breeding program.
It must also be remarked the consensus among the interested ones that the advances in the biotechnological area, that someway help a variety's performance, can be patented. It includes a gene characterization and its respective function. Another aspect is that hybrids can be patented, as well as their parental lines, as long as they are used exclusively for obtaining hybrids. We can have both UPOV's and patent protection in the same material. The variety is protected usually according to UPOV's convention, while the event, causing the variety to be bug attack resistant, to be protected by the patent. So, to market that material, protection owners must agree.
Implementation
Plant protection systems involve royalties charging, either regarding variety through cultivars protection rule, using UPOV's convention, or an event (processes) through patent rule. Let's see the Brazilian example, where cultivars protection rule is being used based on UPOV's 1978 convention, which predicts royalties charge for the use of protected varieties seeds. Due to that, the seed sector is being through hard times because of royalties over seeds. On the other hand, royalties referent to soybeans RR patents have been received almost in full, reaching 98% of the total. The difference is in the implementation, because patent gives the obtainer the right to collect his royalties even at the industry or, as in Brazil, at the moment when the farmer delivers his grain to be sold.
Control and inspection by competent organs are very important so that piracy can be minimized; by the other hand, if every one paids, the amount of royalties incident on grain could be reduced, which would benefit both obtainer and farmer.
Situation in Brazil
Brazil has its cultivars protection based on UPOV's 1978 convention, in which variety protection reaches seeds only. The farmer can save its own seed even if it is a protected variety, independent on the area cropped. It is causing great inconvenience to seed business and agriculture as a whole because the new materials are having their launch delayed. With this, every one loses.
With regards to patents, the country does not allow living organisms to be patented, including varieties, so allowing patenting processes that lead to the creation and development of new varieties. Currently, an important patent is being explored, which involves a pool of patents, soy beans RR. Royalties charge on soybeans RR is, in general, 2% on the grain produced, charged when the product is delivered for sale. Such operation is already functioning for two years, involving the farmer, seed producers, cereal dealer, obtainer, and an agency of external control.
Asian Rust Resistant for Soybeans
Breeding programs over the world are working hard in order to develop Asian rust resistant varieties for soybeans, which only in Brazil caused a loss over 1 billion dollars in the crop year of 2005/06. In countries where it is not possible to patent a variety, the protection provided by UPOV's convention will not be enough to guarantee economical return to the obtainer of such important success, mainly due to two main factors: as previously mentioned, the right given to the farmer to save its own seed and breeder exception, which soon, with the current tools, might have a variety with the same features with no charges to pay. It must serve for reflecting, because in a globalized world as ours, the less prepared ones will hardly evolve.
Some situations to reflect about
Protecting something we have, constitutes an auxiliary mechanism for obtaining better life quality. When we consider as satisfactory the current cultivars protection system in Brazil it does not mean it is not prone to changes, because advances can be achieved in something that is working out fine. So, we dare to ask attention of our readers to some situations:
1. Equality of protection for materials from a germplasm bank or through biological processes - An elite variety has a suitable matching of genes, which is hard to get, especially due to the high number of genes a given species has. So, when we get such matching, the material must be protected so that others do not make use of our efforts. We heard from a lecturer that in a cards game - poker, to be specific - the chance to have a Royal (a sequence of five cards from the same type, from 10 to Ace) in a 52 cards set, is one in over 100,000 chances. So, wonder the chance of having an elite variety with a large genes number;
2. Equality on the protection for autogamous and hybrid species - Hybrids already have a natural protection and, further to this, they are likely to be patented, while varieties are not allowed to be patented in most countries. Unfair conditions cause other alternatives to be searched and many times results are unpredictable;
3. Balance between varietal protection and germplasm access - For advancing in obtaining elite materials it is necessary to access banks with genetical variability. It can openly coexist, involving the participation of countries with germplasm origin center, in the benefits sourced by using the new materials;
4. Behavior and protection - Ethical aspects and behavior code may not be valuable in a law process; however they can be of political strength to the seed industry needs. Each country is autonomous to decide for its path;
5. Capable professionals in technical-scientifical area - Protection is very important to be treated as ordinary by intellectual property departments, which several times look only at legal aspects of the processes. Intellectual protection on plants is much more than that;
6. Globalization - We can have local, regional, national, or multinational seed companies, all of them someway acting synchronically to provide the farmer a superior seed. In case this chain is broken, the farmer will not use the best available and with this he will lose competitiveness in a globalized world, and there will be no subsides to solve the situation. It is known that market restriction leads to delay.
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