What is the importance of plant breeders' rights in Peru?
How are plant breeders' rights legislated for in Peru?
What requirements exist in order to obtain protection for plant varieties in Peru?
What is the process for obtaining protection for plant varieties in Peru?
What remedies are available to an owner of a plant variety right that has been infringed?
What is the importance of plant breeders' rights in Peru?
Breeders' rights are important as they provide protection to new plants or plant varieties that are obtained through investment in research and experimentation carried out by companies, universities, research centres, producer associations and natural persons (both foreigners and Peruvian nationals), among others.
They are also important because they:
- provide the exclusive right to market material for reproduction, propagation or multiplication (eg, seeds or cuttings);
- enable the holder to grant user licences. This provides income for breeders (eg, multinational companies, institutes of research or agricultural universities);
- encourage investment in plant breeding; and
- give access to (improved) varieties for use in plant breeding programmes.
How are plant breeders' rights legislated for in Peru?
Plant breeders' rights enable the holder to enjoy the right of exclusivity for the exploitation of the varieties for a defined period of time.
They are legislated by:
- Decision 345 of the Commission of the Cartagena Agreement;
- Supreme Decree No. 008-96-ITINCI; and
- Law 28,126, which penalises violations of breeder rights.
What requirements exist in order to obtain protection for plant varieties in Peru?
The variety must meet five requirements:
- novelty – the novelty is lost if exploitation started:
- more than one year ago within the Andean Community (CAN);
- more than four years ago outside the CAN; and
- more than six years ago in the case of trees or vines, other than by the Department of Oil and Gas.
- distinguishability – the plant variety must differ clearly from any other variety whose existence was commonly known at the date of presentation of the application or priority;
- homogeneity – the plant variety must be sufficiently uniform in its essential characteristics, taking into account predictable variations according to its method of reproduction, multiplication or propagation;
- stability – the plant variety must keep its essential characteristics without alterations in each generation or at the end of each particular cycle of reproductions, multiplications or propagations; and
- proper generic name – the plant variety must have a name by which is known during the validity of the breeder's certificate. This name must be registered as a trademark and must be different from any previously registered names.
What is the process for obtaining protection for plant varieties in Peru?
The steps of the procedure are as follows:
- The applicant presents the application.
- The application completes the National Institute for the Defence of Competition and the Protection of Intellectual Property (Indecopi) form.
- The application is transferred to the National Institute of Agricultural Innovation (INIA).
- The INIA carries out a preliminary technical examination.
- A naming test is performed.
- A publication order is issued by the Directorate of Inventions and New Technologies.
- The opposition period ends.
- The INIA carries out a complete technical examination, which comprises:
- the completion of a distinctness, uniformity and stability (DUS) exam;
- the completion of a DUS exam in the breeder's specific field;
- the validation of the breeder's DUS exam; and
- the approval of the DUS exam, if carried out abroad.
- A registrability report is compiled and sent to the INIA.
- The Indecopi issues a decision to grant the rights:
- for 25 years, for vines, forest trees and fruit trees, including their rootstocks; and
- for 20 years, for other species.
- An Indecopi breeder certificate title is issued.
What remedies are available to an owner of a plant variety right that has been infringed?
The owner can file a complaint for infringement of plant breeders' rights with Indecopi.
To file such a complaint, the owner must:
- make an official request;
- provide evidence of the infringement; and
- pay the official fee.
For further information on this topic please contact Oscar Mago at OMC Abogados & Consultores by telephone (+51 502 6467 or +51 628 1238) or email ([email protected]). The OMC Abogados & Consultores website can be accessed at omcabogados.com.pe.