2013 CIOPORA Chronicle

IP protection
Since 1995,
when Colombia
became a UPOV
1978 Act member,
the Colombian
Agricultural
Institute (ICA) has
received a total of
1786 applications
from all over the
world in all the
fields of plant
breeding. Out of
these applications,
a total of 1140
certificates of
protection
were issued by
December 2012.
by Andres Rincon
Colombia’s PBR system
faces unsolved problems
A
closer look at the numbers
shows that asexually reproduced
varieties, especially
ornamentals, have benefited greatly
from the system. This is quite plausible
as 44% of the total applications
originate from the Netherlands
and 47% of the grants belong
to rose varieties, followed by 14%
Chrysanthemum, 11% carnation,
11% Alstroemeria and only 20%
for other varieties.
Unsolved challenge
Although the system has proven
to be effective in granting Plant
Breeder Rights (PBR), an unsolved
challenge remains with the international
community, which is to demonstrate
that the system provides
adequate laws and regulations that
are capable of meeting the demands
of breeders as stated in the UPOV
1991 Act.
With these needs in mind, the
Colombian government has been
trying to adhere to the UPOV
1991 Convention for several years,
but is still facing strong political
resistance from sectors opposing the
broadening of the IP standards in
socially sensible areas such as pharmaceuticals
and agriculture. The
latest attempt to adhere to the ‘91
standard was made on April 2012,
when the Congress passed Bill 1518
adhering to the ‘91 Act of UPOV
in the framework of implementing
legal commitments acquired
under the Free Trade Agreement
with the US government. This law,
however, has recently been declared
unconstitutional by the Colombian
Constitutional Court, which
holds that the approval process
violated the fundamental rights of
indigenous and tribal communities.
These latter should have been
consulted by the government before
the passing of the bill as the UPOV
1991 Act standard may affect
those communities’ agricultural
practices and ancestral knowledge.
The government intends to proceed
with the bill, but needs to develop a
strategy to comply with the consultation
ordered by the Court.
Measures of protection
Despite not being able to adhere to
the UPOV 1991 Act yet, Colombia
has managed to implement
the ‘91 Act minimum standards
by providing breeders with (i)
provisional protection between
filing and granting; (ii) effective
protection over Essentially Derived
Varieties (EDVs); (iii) experimental
use exception; (iv) farmer’s privilege
restricted to less than five hectares
in addition to filing a report with
ICA, and a marketing prohibition
of the harvest material; and (v) a
25-year term of protection for vines,
forest and fruit trees, and a 20-year
term for other species.
Adhering to the UPOV 1991
standard, however, would allow the
country to open the door for the
implementation of even stronger
legal measures regarding harvest
materials, especially products
that are manufactured with those
harvest materials. But most importantly,
adhering to the UPOV 1991
Act would provide the international
community with the certainty of
political commitment to maintain
the highest minimum standards as
agreed by all the UPOV 1991 Act
member states.
ICA
Finally, to facilitate the enforcement
of plant varieties in the country, the
Colombian Congress passed Bill
1564 in 2012, providing the ICA
with jurisdiction over infringement
of PBR. This change in essence
creates a PBR specialized court,
providing the Instituto Colombiano
Agropecuario ICA (the organisation
that administers Colombia’s
Plant Variety Rights Regime) with
judicial control of the PBR system,
something which in principle
will solve the historical problems
of the system associated with the
lack of technical knowledge of the
judicial authorities when enforcing
PBR. The challenge is now in
the hands of the ICA, bearing in
mind that it is a small office with
very limited human and financial
resources. These problems would
require immediate attention from
the Colombian government in order
to guarantee the success of this new
function.
Parallel to the implementation of
the new judicial functions of the
ICA, the government is attempting
to implement a socialisation programme
for the existing indigenous
communities, which delivers the
(relatively small) changes that come
from complying with the UPOV
1991 Act. This means the outlook
for the balance of the protection
for plant innovation in Colombia is
optimistic. However, it also implies
an invitation to the international
community and associations like CI-
OPORA to keep a vigilant eye on the
country, with active lobbying highlighting
the positive amendments
brought to the UPOV Convention in
the revised Act of 1991. |||
About the author
Andres Rincon is a Colombian
Patent Attorney with broad
experience in Intellectual Property.
He holds a Masters Degree from
the Max Planck Institute -Munich
Intellectual Property Law Center-,
and has a successful practice in the
fields of plant breeding protection,
and enforcement of intellectual
property assets. He is now a Senior
Associate at OlarteMoure, where
he directs the Plant Breeding
Protection Department and the
Litigation Department of the firm.
CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 33