Elza-Durham Elza-Durham

Elza-Durham is the patent Analyst of Daniel Advogados. Daniel Advogados provides Intellectual Property services, having solid foundations in technical knowledge, professional experience and tradition in Brazil.
    Editor's note:Patent protection plays a key role as an important means in the fierce global agrochemical market competition. There has been worldwide concern over the Protection of Intellectual Property Rights(IPRs) on agrochemicals and plants /seeds . Especially in Brazil, the Plant Breeding Law has been actively promoted as people’s awareness raising. Recently, Elza-Durham, Patent Analyst from Daniel Advogados, contributed to an article for the AGROPAGES, which introduces the overview and development of Brazil’s Plant Breeding Law and Patent Law, to help readers better understand the IPRs protection situation of Brazil agrochemical market.

    In Brazil, the increase in agriculture production was significantly pushed by the Plant Breeding Law, which is in force since 1997 and allowed national and foreign plant breeders to suit third parties that sell protected plants without authorization of the plant breeder. In fact, in 2013, Brazil had the first final decision of an enforcement concerning Plant Breeding rights.

    Previously, a rose variety called “Versilia Pink” was being commercialized without authorization of the plant breeder, which was a foreign company. In the end, the Court decided that the rose was really misappropriated (pirated) and the condemned local farmers should pay for the material and moral damages caused. This indicates that our legal system starts to see and understand the legal and monetary value of plant breeding rights and, consequently, IP rights.

    Other legal suits involving agrochem industries and IP rights are coming up and many of them raise the same question: IP Law and Plant Breeding Law could be applied to the same plant? It seems, from initial Court decisions, that Brazilian judges are starting to have a common understanding that “double protection” to plants and seeds, specially GM, is possible. However, in their opinion, the patents should be restricted to the genetic constructions inserted in a living being, while the plant breeding protection can be applied to plants/seeds itself, only if they are distinguishable, homogeneous and stable when compared to other cultivars already known in the state of art.

    The Brazilian Agricultural Research Corporation (Embrapa) is a national public company which is devoted to research on agriculture, being strongly associated with the development of new seeds. It is one of the greatest applicants in the ranking of plant breeding protection, sharing the top with a foreign company, Monsanto. Both companies have GM and natural varieties filed before SNPC (Plant Breeders´ Rights Office) and, moreover, patents/patent applications filed before INPI (Brazilian Patent and Trademark Office). Furthermore, they often do business with each other, being one of the main examples of interaction between public and private companies in Brazil. Recently, in 2013, they were notified by the Administrative Council for Economic Defense (CADE) about their intention to make an agreement regarding the commercialization of two new rice varieties of plague resistant GM rice (RRFlex and BGII/RRFlex). The Council approved the partnership and is now analyzing a Monsanto´s license allowing Bayer Crop Science to produce GM soy. Certainly, this type of cooperation conveyed in profits to our society, allowing our country to reach a prominent place between the larger countries that produces inputs products for exportation.

    There is also a tendency in Brazil to suit foreign companies through collective legal actions, showing that Brazilian farmers are beginning to get organized to better understand the intellectual property rights issues related to its day-by-day business. In some actions, farmers are questioning the reason and the value paid to seeds in the moment of the purchase of the plant/seed and the clarity of contracts firmed between the breeder and the farmer in the same moment, a condition that they considered as “imposed” by foreign companies. Therefore,we can expect, in a near future, contracts between breeders and farmers explicitly describing the intellectual property rights associated with the specific plant/seed (patents, cultivars) that is being sold and the extension of its protection (for example, the final term of a granted patent), avoiding possible future misunderstands regarding the breadth of the IP rights associated with that product.

    The Brazilian reality in biotechnological field associated with agrochemical products and process is a reflection of our political options made few years ago. We can surely say that the implementation of the Plant Breeding Law and Intellectual Property Law in late 90´ was one of the main instigators of agrochemical industries investments in our country. However, this benefit will only be sustained in the next years if the law will be properly applied and if the Brazilian citizens understands that patents and cultivars brings benefits to the whole country.