2024-02-03 21:08:52
In the debate of whether or not to adhere to UPOV 1991, since National Seed Institute (INASE) It was indicated that the Act in question does not prohibit the own use of seeds or plant varieties, but rather opens the possibility of doing so through state regulations and then the exercise is in the hands of an agreement between the parties. It was indicated that the concept “own use” does not appear in UPOV 78.
INASE stressed that the generation of investments and the improvement in genetic and technological matters of the seeds used for crops in Argentina are a condition without which progress could not be made in the need for local production to grow, and even double. grain productivity, as is the government objective today.
“This is an essential component, and clearly it is not the only one”acknowledged Claudio Dunan, Agricultural Engineer and president of INASE about the government proposal promoted by the administration of Javier Miley to stimulate investments and the generation of new technologies through adhesion to the 1991 Act of the International Union for the Protection of New Varieties of Plants, known under the acronym UPOV, a position resisted by entities of the Liaison Table.
In a report given to the program “Country Air”of radius ProfileDunan commented that “the Secretary of Agriculture, Fernando Vilella, together with his team, aim to double exports in the coming years for which Argentina needs to increase productivity per hectare, diversify crops and address climate volatility, which will bring more profitability for the local producer.”
“In this scheme, having a germplasm industry, which makes the best technologies available for production, generating investment in this area, is absolutely key, and today it is not happening: it has not happened in Argentina for twenty years,” commented the head of INASE.
He added that “we are behind in the yield offered by larger crops, we are out of the market for very important crops such as legumes, and we need to have crops with greater nutrition for the population such as fruits and vegetables. All this does not happen because we do not have a balance between the opportunity for own use and respect for intellectual property for these investments to occur.”
For this reason, Dunan stated that “that is why Fernando Vilella’s team proposed joining UPOV 91.”
Acta 1991 de UPOV
Laura Villamayor, lawyer and coordinator of Institutional Relations at INASE, explained that the “UPOV 91 agreement, as well as the same agreement, the 1978 Act, is an intellectual property document that recognizes the improvement that is made on a plant or a plant variety that gives it a distinction and homogeneity, stability and through it the owner of this variety is recognized for a period of time an exclusive right. But unlike other intellectual property systems, such as the patent system, it has exceptions and is more flexible in the use of material covered by intellectual property.”
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“That is why we say – explained Villamayor, who is also president of the Administrative and Legal Committee of UPOV and technical secretary of CONASE (National Seed Commission) – that the best system to protect varieties is to allow the use of germplasm, without as many restrictions as The patent system is the plant breeder’s right system.
He added: “In UPOV 91 we have concepts that were not in UPOV 78. The latter talks about the possibility of patenting, while the 1991 Act does not talk about that possibility and leaves each country the possibility of how to protect. And we have already decided how to do it through a Patent Law, which says that we do not patent plants, but rather that we directly protect plant varieties by breeder’s right.”
On the topic of “own use”, Villamayor explained that “UPOV 78 does not talk about own use, but there is a part that mentions the limitation of the breeder’s right for reasons of public interest. And to explain today that a producer’s own use is of public interest, it is very difficult to frame that concept or interpret that extreme.”
He added that “UPOV 91 creates an optional exception to the breeder’s right that the producer or farmer can make use of a variety with certain conditions. Although these conditions are not set by UPOV, but rather by the country. Therefore, there is the possibility of adhering to UPOV 91, and in the regulations all the sectors involved in the chain come together to regulate the scope of self-use, how it will be limited and who will pay and who will not pay. The need to go to UPOV 91 has to do with the need to clarify concepts and create legal certainty for the breeder and for the producer,” he said.
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Regarding how long intellectual property is recognized, Villamayor explained that the 1978 Act speaks of 15 to 18 years, it depends on each species, and today the Argentine Law protects for 20 years, and UPOV 91 protects for 20 years, except in trees and vines, which protects for 25 years. “This way, the term for trees and vines will only be extended by five years.”
Regarding the lack of a definition on own use proposed by UPOV 78, where it would not be prohibited by not mentioning it, the president of the UPOV Legal Committee commented: “There, the country can interpret that it does not have it, just as opportunely did France, and other countries, that adhered to UPOV 78 at the time said that there is no such thing as own use because the agreement does not contemplate it: there they had a whole legal problem in France with those who wanted to make their own use and were not allowed to do so, and They had to go to court. Today, France, like most UPOV countries, 60 out of 78 are in UPOV 91. Therefore, it is important that this exception is in the agreement.”
INASE Position
The president of INASE, Claudio Dunan, assured that “own use is allowed with adherence to UPOV 91, own use is onerous, and the only thing that remains to regulate what size of producer is the one that does not have to pay for that use. It is a clarification that would allow local and international companies that want to invest in Argentina, including SMEs or INTA or Obispo Colombres Station, to say that the legal framework is clear.”
“Since the only thing UPOV 91 does is say the breeder that these are the rules of the game set by the State, that INASE will apply them and that companies come and compete. Only one chapter of the current Seed Law is modified, which clarifies this in great detail.”
He also clarified that “today Argentina has a Seed Law, and UPOV 78, which creates an ambiguity” in legal matters due to self-use.
He also clarified that the only thing that is modified in the seed law is chapter 5, the rest of the law remains the same.
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