New Plant Varieties
– Plant Variety Protection Law No. 9.456/97 of April 25, 1997, published on April 28, 1997 (which incorporates the 1978 Act of the UPOV).
– Federal Decree No. 2.366 of November 5, 1997, published on November 6, 1997 – enacts Regulations under Law No. 9.456/97.
– Law No. 13.123 of May 20, 2015 – refers to access to genetic heritage, the protection and access to associated traditional knowledge, and the sharing of benefits for conservation and sustainable use of biodiversity.
– Decree No. 8.772 of May 11, 2016 – regulates Biodiversity Law No. 13.123/2015.
Membership in International Conventions
– International Union for the Protection of New Varieties of Plants (UPOV), 1978 Act, since May 23, 1999.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since August 14, 2016.
Applicant: breeders (or successors) or assignees; persons having protection guaranteed by a treaty in force in Brazil or those domiciled in a country that guarantees reciprocity of identical or equivalent rights to Brazilians, may also apply for protection.
Patentability: plants and parts thereof (e.g. plant cells, seeds, seedlings, etc.) are not patentable in view of the prohibitions of Brazilian Industrial Property Law No. 9.279/1996. The related DNA sequence, method of production, method of insertion of the DNA event and the like have no bar in the Brazilian IP Law, and are susceptible of patent protection. The plant per se (the specific variety) is susceptible of Intellectual Property rights via the sui generis system of plant breeder’s rights or plant variety protection (the UPOV system).
Conditions for protection: new plant varieties and essentially derived plant varieties of any plant genus or species are entitled to protection provided that they are new, homogeneous, stable and distinguishable, and they have their own denomination.
Kinds of protectable plants: the authority responsible for the protection of plant varieties will disclose progressively the list of allowable plant species and the respective minimal descriptors required for the filing of applications for protection. Until November 2021, the PVP Office allowed protection to species of: AGRICULTURAL: Cotton, Peanut, Rice, Oat, Potato, Coffee, Sugar-cane, Canola, Carthamus, Rye, Barley, Beans, Caupi beans, Sunflower, Castor plant, Manioc, Maize, Soybean, Sorghum, Tobacco, Wheat, Triticale, Hop, Sesame, Flax; FOREST: Eucalyptus, Rubber tree, Australian red cedar, Pine, Teak, Acacia, Araucaria, Erva-mate Yerba mate; FORAGER: Forager peanut, Andropogon grass, Azevem or Italian ryegrass, Brachiaria, Bromus, Guinea grass, Dactylis, Napier grass or Uganda grass, Wooly grass or Yorkshire Fog or Velvet grass, Finger millet, Common vetch or Tare, Hairy vetch or Winter vetch, Festuca, Guandu, Lotus, Macrotyloma, Millet, Paspalum, Poa pratensis L., Setaria, White clover, Red clover, Rhodes grass, Arrow-leaf clover or vesicular clover, black wattle Acacia mearnsii, Buffel grass, Pangola grass, Stylosanthes, Forager radish, Ononis alopecuroides; FRUIT: Avocado, Pineapple, Acerola, Japanese damson plum, Blackberry, Banana, Cocoa, Kaki, Raspberry, Guava or Pineapple Guava, Guava graft-holder, Guarana, Kiwi, Orange, Apple, Apple graft-holder, Papaya, Mango, Passion fruit, Blueberry, Nectarine, Olive, Pear, Pear graft-holder, Peach, Poncirus, Prunus graft-holder, Pomegranate, Mandarin, Grape or vine, Coconut, Pitaya, Macadamia; OLERACEOUS: Pumpkin, Lettuce, Garlic, Onion, Carrot, Pea, Watermelon, Melon, Strawberry, Red pepper and Peppers, Okra, Tomato, Eggplant, Endive, Coriander, Arugula, Sweet potato, Lentil, Cabbage; ORNAMENTAL: Ornamental pineapple, Alstroemeria or Peruvian Lily or Lily of the Incas, Amaryllis, Flamingo flower or Boy flower, Aster, Begonia, Bromelia or Guzmania, Kalanchoe, Celosia, Orchids, Arum, Dianthus, Chrysanthemum, Garden Croton or Variegated Croton, Curcuma, Dahlia, Dipladenia, Sea Lavender or Statice or Marsh-rosemary, Weeping Fig or Benjamin's Fig, Gerbera, Bermuda grass, Emerald Zoysia and Saint Augustine grass, Gypsophila or Baby's breath, Chinese hibiscus, Hypericum, Hortensia, Impatiens, Lily, Neoregelia, Paspalum vaginatum, Petunia, Poinsetia, Rose, Solidago, Violet, Bougainvillea, Petchoa, Vanda, Peperomia, Emerald Zoysia and further species of Zoysia, Diefenbachia, Campanula, Calibrachoa, Waxflower or milkweed, Lobelia, Veronica, Zamioculcas, Agave, Bouvardia, Desert rose; MEDICINAL AND AROMATIC: Stevia, Gorse, Macela, Waxyleaf nightshade.
Novelty: a plant variety should not have been offered for sale in Brazil for more than twelve months nor been offered for sale in other countries, with the consent of the breeder, for more than six years for species of trees and grapevines, and for more than four years for the other species. For those plant varieties which become allowable by inclusion in the list issued by the authority, but no longer meets the above novelty requirements, protection is still possible provided that the following conditions are cumulatively met: the application for protection is filed within twelve months from the date on which the respective minimal descriptors required for each species or variety is disclosed by the authority; the first commercialization of the plant variety occurred no longer than ten years before the filing date of the application. Said protection is effective only for the purpose of the use of the plant variety to obtain essentially derived varieties, and it is granted for the remaining period of the term of protection, based on the date of the first commercialization. The right of priority will be guaranteed for a period of up to twelve months to natural or legal persons who have applied for protection in a country, which maintains an agreement with Brazil, or in an international organization of which Brazil is a party, and produces the effect of a national filing.
Homogeneity (or uniformity): a homogeneous plant variety means a plant variety that, when used in planting on a commercial scale, shows a minimum degree of variance in the descriptors identifying same, according to criteria established by the competent authority.
Stability: a plant variety is considered stable when it remains homogeneous, throughout successive generations when reproduced on a commercial scale.
Distinctiveness: a plant variety should be clearly distinct from any other the existence of which is recognized at the date of application for protection.
Filing requirements for an application (to be sent to resident agent):
1. Application form containing name and address of the applicant and of the breeders;
2. Description of the plant variety (descriptors indicative of its distinguishability, homogeneity and stability as established by the authority);
3. A declaration guaranteeing the existence of a live sample available to the competent body and its location for eventual examination;
4. A declaration regarding the existence of commercialization of the plant variety in the country or abroad (if any);
5. A declaration regarding the existence, in another country, of protection or an application for protection, or of any application for priority rights referring to the plant variety for which protection is being requested;
6. Priority claim (if any) – the right of priority will be guaranteed, for a period of up to twelve months, to natural or legal persons who have applied for protection in a country which maintains an agreement with Brazil, or in an international organization of which Brazil is a party, and produces the effect of a national filing;
7. All documents in Portuguese (power of attorney, assignment, etc. must have sworn Portuguese translation);
8. The power of attorney and assignment must indicate the common and botanical names of the variety;
9. Additional requirements according to the new rules of the Brazilian PVP Office and related Biodiversity Law and Decree 8.772/2016:
(a) upon filing a new PVP application, a declaration of access or non-access of national genetic heritage samples or associated traditional knowledge for the development of the new plant variety should be submitted. This applies to new varieties resulting from researches accessing the samples as from June 30, 2000;
(b) a declaration is required for any previous PVP filing resulting from access of national genetic heritage samples as from June 30, 2000 but no rule or communication implementing existing Brazilian PVP filings was issued. It is possible that Office actions requiring registration and/or declaration will be issued in the future. When any access of national genetic heritage samples has occurred, it must be registered at CGEN (Board of Management of Genetic Heritage – Brazilian Ministry of Environment) prior to filing the PVP application, under pain of shelving of the application. Information related to the registration at CGEN must also be submitted when filing a new PVP application together with the access declaration. However, the electronic system for registration is not yet available by the CGEN. When it is implemented, registration must be regularized within the transitional period of one year.
Publication: publication of the application occurs concomitantly with the granting of the Provisional Protection Certificate, which will ensure to its holder the right to exploit the plant variety commercially.
Opposition: third parties may oppose the certificate of protection within ninety days from publication date.
Examination: during which is not conditional upon possible oppositions, Office actions may be issued, up to and including requirements for the filing of a new specification, its completion and/or the presentation of other information considered to be relevant for concluding the examination of the application; a reply to Office actions is due within sixty days from the date of receipt of the notification by the breeder or its legal representative.
Appeal: if the reply to an Office action is considered to be unfounded, the application will be rejected and the applicant may lodge an appeal within sixty days from the rejecting publication.
The Plant Variety Protection Certificate will be issued after expiry of the term for filing an appeal or, if an appeal has been filed, after the official publication of the decision on the appeal. At the time of obtention of the Provisional Protection Certificate or Plant Variety Protection Certificate, the holder thereof will be obliged to send two live samples of the protected plant variety to the competent body, one for handling and examination and the other to be kept in the collection of germplasm.
Duration of protection: fifteen years from the date of grant of the Provisional Protection Certificate, except for grapevines, fruit trees, forestall trees, ornamental trees, including, in each case, their graft-holder, for which the term is of eighteen years. For those cases where plant varieties become allowable by inclusion in the list issued by the authority, protection will be granted for the period remaining from the above terms, the date of the first commercialization being considered for this purpose.
Rights conferred by the Certificate: holder has the right to prevent third parties from producing the plant variety propagation material for the purpose of sale, from offering it for sale or from commercializing it, without the authorization of the holder; these rights are not violated by those who reserves and plants seeds for his own use, in his own premises or in third party premises in his possession; uses or sells, as food or raw material, the product obtained from his own plantation, except for reproduction purposes; utilizes the plant variety as a source of variation in genetic improvement or scientific research; being a small rural producer, multiplies seeds for donation or exchange, exclusively for other small rural producers, in the ambit of finance or support programs for small rural producers, conducted either by public bodies or non-governmental bodies authorized by a Public Authority. Said rights exemptions do not apply to sugar-cane varieties, for which specific provisions are established by the PVP Law.
Compulsory license: the protected plant variety may be subjected to a compulsory license, at the request of a legitimate interested party, basically if necessary to (i) guarantee availability of the plant variety on the market at reasonable prices, when regular supply is being unjustifiably hindered by the owner of the plant variety protection right, (ii) regular distribution of the plant variety and maintenance of its quality, or (iii) in the case of holder’s abuse of economic power. Compulsory licenses may only be requested after three years from the date of issuance of the Provisional Protection Certificate, except in the event of abuse of economic power.