Introduction to Plant Variety Protection

Malcolm Superville

Plant variety protection is a form of intellectual property right which grants protection to the breeders of new varieties of plants.[1] Plant breeding allows for the discovery or creation of genetic variation in plant species and the selection from within those variations of plants with desirable traits that can be inherited in a stable fashion.[2] In other words, in a world shaped by increasing population growth and environmental degradation, the ability to sustainably produce more food is of utmost importance. 

The best way to ensure the creation of more plant varieties is to incentivise plant breeders to produce improved varieties of a wide selection of plant species without the risk of any unauthorised exploitation.[3]The result is a sui generis regime tailored to the characteristics of plant varieties that also satisfies the needs of breeders, growers, and traders.[4]

The plant breeder’s rights

According to s.3 of the Protection of New Plant Varieties Act of Trinidad and Tobago Chap. 82:75 (Plant Varieties Act), for a variety to become the subject of a plant breeder’s right, it must be new, distinct, homogenous, stable, and given a variety denomination which is acceptable for registration. 

Novelty 

Under s.4 of the Plant Varieties Act, a variety is new if it has not been offered for sale or marketed with the approval of either the breeder or their successor in title in Trinidad and Tobago for longer than one year before the date on which protection is sought, or abroad for longer than four years prior to the date the local breeder files for protection. 

Three features of this novelty requirement are significant. The first is that novelty is not lost by previous use of the variety, but only by previous sale or disposal.[5] This means that a plant can be grown in someone else’s garden for years prior to application and the application can still succeed. It can be put forward that this is done to greater incentivise the discovery and breeding of new varieties.[6]

The second notable feature is that the novelty provisions allow for substantial grace periods – that is, they allow for periods during which the applicant can commercialise the plant prior to grant without prejudicing the application.[7] In Trinidad and Tobago, under s.4(2) of the Plant Varieties Act, a person can sell vines, forest, fruit and ornamental trees, including their root stocks for up to six years before the effective national filing date (the date when they apply for a plant variety right). 

The third notable feature is that only disposals or sales taken into account when considering the novelty of a particular variety are those made by the applicant themselves, or their successors in title.[8] This means that the sales of material by third parties who have independently developed the same variety will not destroy the novelty of the variety in question.[9]

Distinct

Under s.5(1) of the Plant Varieties Act, a variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing. By s.5(2) of the Plant Varieties Act, common knowledge may be established by numerous factors, such as the exploitation of the variety already in progress, the grant of a breeder’s right in the variety, entry of the variety either in a catalogue of varieties admitted to trade or in the register of varieties kept by a recognised professional association, or inclusion of the variety in a reference collection. 

Distinctiveness may arise through visible differences in outward appearance (such as height, size of leaves, or leaf colour), or through physiological differences associated with the variety’s particular chemical or biological structure (like the resistance to disease or ability to withstand certain conditions).[10] Under s.5 of the Plant Varieties Act, it seems any difference will suffice, so there will be no need for the distinguishing feature to confer any particular aesthetic or economic advantage. It can therefore be put forward that distinctiveness will be a comparative test and may require the claimed variety to be compared with similar varieties.[11]

Homogeneity 

Under s.6 of the Plant Varieties Act, a variety is homogeneous if its plants are sufficiently uniform in those characteristics that make it distinct. This means that nearly all samples of the variety must bear the characteristics that define that specific variety of plant. 

Stability 

Under s.7 of the Plant Varieties Act, a variety is stable if its relevant characteristics remain unchanged after repeated propagation. While first generations of a variety may be distinct and homogeneous, when a second generation is grown, a large number of deviants can appear.[12] This means that the variety must be assessed on its capacity to remain true to its original characteristics irrespective of however many variants arise.[13]

Why this all matters

On one level, the reason why protection for plant variety is important is because it facilitates greater agricultural productivity, which allows for higher food production with less wastage.[14] However, on another level, the development of new, improved varieties with higher quality increases the value and marketability of crops in the global market.[15] The breeding and exploitation of new varieties capitalise upon rural income to stimulate overall economic development. This is of particular significance and substantial economic importance for the territories within the Commonwealth Caribbean which could use the competitive advantage gained by exporting high quality agricultural products to excite their infant economies. 

Conclusion

To summate therefore, the protection of plant varieties is born from an intellectual property right granted to plant breeders for the purpose of stimulating economic and environmental benefits. The reason why the regime is of particular importance to Trinidad and Tobago is that it ultimately gives the much needed impetus required to stimulate its agricultural industry. 

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[1] Bently, Sherman, Gangjee and Johnson, Intellectual Property Law (Oxford University Press 5th edn, 2018), 697. 

[2] UPOV, ‘Introduction to Plant Variety Protection Under The UPOV Convention’ (2003), 1.

[3] Bently, Sherman, Intellectual Property Law (n 1) 698.

[4] Ibid. 

[5] Ibid, 701.

[6] Ibid. 

[7] Ibid. 

[8] Ibid. 

[9] Ibid. 

[10] Ibid, 702. 

[11] Ibid. 

[12] Ibid.

[13] Ibid. 

[14] Ibid. 

[15] UPOV, ‘Introduction to Plant Variety Protection’ (n 2), 3.