Implementing Plant Protection
The Law on Plant Varieties, which came into force on October 26 1996, provides protection for breeders of novel, distinct, stable and homogeneous plant varieties. This protection lasts for 18 years for perennial species and 15 years for other species. The scope of the law lies within the provisions of the International Convention for the Protection of New Varieties of Plants (UPOV Convention). Therefore, it is possible to claim priority within 12 months of application in any other country that is a member of the Union for the Protection of New Varieties of Plants (UPOV). In addition, applications for all species are accepted.
Trends for Plant Protection in Mexico
Plant varieties are expressly excluded from patent protection in Mexico according to the Industrial Property Law. Therefore, the only possible protection for plant developments is by means of the Law on Plant Varieties. However, patent applications relating to transgenic plants are currently being studied at the Mexican Institute of Industrial Property (IMPI). The criteria for the patentability of transgenic plants have not yet been established in Mexico, although it appears likely that patents will be granted in accordance with the criteria recently set forth by the European Patent Office.
By October 1999 279 applications for 30 different species had been filed with the National Service of Inspection and Certification of Seeds (SNICS). All were published in different official publications.
The main species for which protection is being sought in Mexico are:
- roses;
- maize;
- strawberries;
- cotton; and
- sorghum.
These species account for approximately 75% of the applications. The following companies have filed about 55% of all applications:
- Asgrow Mexicana, SADE CV;
- Bear Creek Gardens, Inc;
- Delta and Pine Land Company;
- Meilland Star Rose; and
- Pioneer Hi-Bred International, Inc.
Thirty-three percent of the applicants reside in Mexico, 43% in the United States, 14% in France, and the rest in the Netherlands, Italy, Canada, Cuba, Israel and Japan.
Implementing Plant Protection
All of the applications for breeder title of plant varieties are pending. Processing of these applications has been very slow due to administrative problems in the implementation of the law.
The SNICS received a considerable number of applications from the IMPI, since the latter acted as the receiving office of applications related to plants before the issuance of the Law on Plant Varieties. The IMPI received applications in accordance with the administrative proceedings of the Industrial Property Law. Likewise, the first applications received by the SNICS were filed in this way, since the Law on Plant Varieties established that these proceedings were to be applied for as long as the corresponding regulations were pending.
In addition to administrative requirements, issues such as the functions of the members of the committee of qualification of plant varieties (which is in charge of the technical examination of the applications), and other necessary definitions were expected to be included in the regulations.
The regulations of the Law on Plant Varieties were issued on September 25 1998 and were in force the next day. However, these regulations said nothing about the administrative requirements previously defined in the Industrial Property Law. Therefore, there are contradictory requirements for applications filed on or after September 25 1998 in regard to those filed before this date. Unfortunately, the authorities have not yet defined their criteria for the majority of the administrative requirements.
For instance, the formalities required for powers of attorney and other legal instruments from foreign countries have not yet been established. If the criteria for these documents are not set out, foreign applicants will have to provide a legalized power of attorney. In the case of legal persons, a copy of the document in which the person who signs the power of attorney is given authorization to do so would also be required. Additionally, translations by authorized translators of any document in a language other than Spanish should be provided.
This practice would considerably increase the costs of applications and delay their prosecution, since even the times for furnishing such documents are not defined in the law. In addition, there are no authorized translators for these purposes in Mexico. The SNICS is analyzing these facts and is expected to publish the criteria for dealing with them in the next months.
As a consequence of this confusion other provisions have not been followed. For instance, according to the law a certificate of appliance should be awarded to any applicant 120 days after application. This provision is clearly included in the law in order to comply with Article 13 of the UPOV Convention. However, no such certificate has yet been issued.
The officers in charge of processing the applications have been working on technical aspects while administrative criteria are discussed. Therefore, a swift issuance of the certificates of appliance, or even of the breeder titles, is expected once the criteria are finally defined.
For further information on this topic please contact Patricia Becerril or Héctor Chagoya at Becerril, Coca & Becerril SC by telephone (+ 525 55 254 0400) or by fax (+525 55 254 5152) or by e-mail ([email protected]).
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