ENGLISH VERSION ONLY
Plant Breeders’ Rights also called Plant Variety Protection (PVP), is a form of Intellectual Property Rights (IPRs). It is an exclusive right granted to breeders of new varieties to exploit their varieties and has features that are in common with patents for industrial inventions. Both forms of protection grant to their holders a form of exclusive right to pursue innovative activity.
PVP may also be compared with copyright, as PVP enables the reproduction (copying) of protected plant varieties to be constrained by the owner of the protected variety. PVP is an independent sui generis form of protection tailored for the purpose of the protection of new plant varieties. It has certain features that are common with other IPRs but have, at the same time, fundamental differences.
Since the early 19th century, in agriculture and forestry, the introduction of new varieties is an essential component to maintain and sustain good and high crop productivity and quality. New varieties are constantly being bred for higher yields, for better agronomic traits like taste, for resistance against pest or diseases, for tolerance to saline or drought conditions etc.
The Malaysian government has realized the importance of PVP for the development of the country. Malaysia, a member of World Trade Organization (WTO) and a signatory to the TRIPS Agreement, which under Article 27.3 (b), stipulates that member countries shall provide for the protection of plant varieties by a patent or by an effective sui generis system or by any combination thereof. As such, Malaysia is able to fulfill its obligation of Article 27.3 (b) for the TRIPS Agreement with the introduction of the PVP legislation.
With the PVP legislation, growers are in a better position to have access to new and improved varieties for commercial growing. Temperate flower growers in Malaysia, for example, are facing problem in getting new varieties from Netherlands and other countries which bred these varieties. The extension of rights to harvested material further complicates the issue. The objective of the Act is to provide for the protection of the rights of breeders of new plant varieties, and the recognition and protection of contribution made by farmers, local communities and indigenous people towards the creation of new plant varieties; to encourage investment in and development of the breeding of new plant varieties in both public and private sectors; and to provide for related matters.
The Department of Agriculture (DOA) has been registering fruit clones since the early 1930’s and was officially as to be the National Registrar of Varieties in 1994 by the Ministry of Agriculture. The responsibility in implementing the PNPV Act 2004 has been entrusted to the DOA Malaysia.
The PNPV Act is a pan-Malaysian by nature, which is applicable to all plants but excludes microorganisms. IPR protection of new variety is granted via a registration process based on validation of plant characteristics that distinguishes it from other varieties.
Under this PNPV Act, the scope of a breeder’s right extends to acts carried out on a commercial basis including producing or reproducing, conditioning for the purpose of propagation, offering for sale, marketing, exporting, importing and stocking the material for the earlier activities. Hence, unauthorized conduct of such acts will constitute an infringement under the PNPV law.
However, there is a limitation to breeder’s right under this Act. The limitation include any act done privately on a non-commercial basis or for an experimental purpose or any act done for the purpose of breeding other plant varieties, propagation by small farmers using harvested material of the registered plant variety planted on their own holding, exchange of reasonable amount of propagating materials among small farmers and the sale of farm-saved seeds in situations where non-usage is beyond the control of the farmer.
The person who may apply for registration of new plant variety and grant a breeder’s right are a breeder, the employer of the breeder, the successor in the title of the breeder, a farmer or group of farmers, local community or indigenous people who have carried out the functions of a breeder and any government or statutory body which has carried out the functions of a breeder. However, if the applicant’s ordinary residence or principal place of business is outside Malaysia or if the applicant is a group of farmers, the applicant should appoint an agent who is a resident or who has a registered office in Malaysia. Besides that, if the applicant is a local community or an indigenous people, the authority representing the local community or indigenous people shall be the agent.
The condition for registration of new plant varieties and the granting of breeder’s right is that the plant variety is new, distinct, uniform and stable. Notwithstanding, where a plant variety is bred, or discovered and developed by farmers, local community or indigenous people, the plant may be registered as a new plant variety and granted a breeder’s right if the plant variety is new, distinct and identifiable.
The plant variety is new if on the filling date of application for registration and grant of a breeder’s right the propagating or harvested material has not been sold or otherwise disposed off on a commercial basis by or with the consent of the breeder earlier than one year within Malaysia, and in other countries, are earlier than six years in respect of trees and vines and earlier than four years in respect of other plant varieties.
Apart from the Procedure and Conditions for Application of Registration of New Plant Variety and Grant of Breeder’s Right, Rights, Limitations and Duties of a Holder, the Protection of New Plant Variety (PNPV) Act 2004 provides for :
Establishment and management of the Malaysian Plant Varieties Board to govern the overall granting of breeder’s rights;
- Issuance of Compulsory Licence;
- Invalidation, Revocation, Surrender and Assignment or Transmission of right;
- Setting up of an Appeal Board to hear appeals from aggrieved parties;
- Infringement and process for claims for damages;
- Offences and penalties; and
- Enforcement and investigations