The United States is regarded as safe haven for breeders and farmers for the protection of plants. USA is proud to be a provider for the protection of the two systems such as plant patents and plant variety protection system. Plant Patent Law maintained in small minority of countries in which the United States are the most important among them. The United States have for their management of their intellectual property, as they sharpened promotes a policy that a situation in which everything from the hand of man under the sun are responsible for patenting.
Development of new varieties by traditional breeding of the two forms of protection throughout the world. As the protection devices are intended primarily for the public good and only the second priority goes to the inventor or author, as Congress planned, there is a little confusion because the public, the farmers who are affected by their choice on the market. These developments are mainly due to some international conventions and with the introduction of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the world trading system of the former GATT and the new World Trade Organization. Hence the focus of the brief discussion revolves around the type of protection in the United States, the recent agreements and treaties such as TRIPS, and how effective it is, the impact on the protection of plants in the United States and the consequences after.
Solid foundation for the protection
Back on the evolution of the U.S. patent, the people of this time in 1790 had an idea about the concept of the patent and how it was to put to use. It was an activating stimulus in the area of commercialization work with the support of the growing and inspiring, the transformation into the planting container businessmen bent on introducing new equipment that by cutting, grafting of other asexual methods, which allow them to sell and profits. If these breeders and farmers with this possibility, the Patent Office understanding of the problems in the Plant Patent Act of 1930. The breeders of trees (citrus fruits and nuts), shrubs (azaleas, Viburnum, etc.) and decorations (such as blueberries, grapes, raspberries and strawberries) were the main beneficiaries of the Act of 1930.
Before the law was of the opinion that the artificial plants were bred nature for the purposes of patent law are not issues of patent protection. It was an exclusion of sexually produced plants, because they believed that seed reproduction is not a way for new types of plants under the Act of 1930. The interesting thing to be in this Act, the plant patent was not in the general patent law. Although the adoption of the Plant Patent Act of 1930, the intent of Congress was to plant variety rights, the liberation he deserves, and the economic reality behind the protection is materialized. And later on the realization of the large input of time, money and effort of the cultivator or breeder in the development of new plant varieties either by traditional breeding methods and modern molecular modification. With the entry of firms in the field of breeding, it has become an inevitable from the marketing perspective of the economy to provide adequate protection to them, with their technology in speeding up the procedure by the use of winter-breeding and genetic engineering , the resulting new varieties faster, but at a prohibitive cost. The economic aspects are taken into account and thus the costs for research and development, the breeders have exclusive marketing rights of the new variety. Thus the various types of protection, such as plant patents, plant breeders' rights (Variety Protection) and there are now designs the plant in the country relatively enriched.
U.S. Plant Patents
Currently, the patent laws of the United States of America is no longer a separate law, and it is in the general patent law. Under this law is Title 35, Chapter 15, Section 161 states:
"Whoever invents or discovers and asexually reproduces any distinct and new variety of plants, including cultivated sports, mutants, hybrids and newly found seedlings, other than a tuber propagated plant or a plant in an uncultivated state, may be a patent therefore ..".
Patents on plants, stable and reproducible asexually and there shall not be any potato or other edible tuber reproduced plants.
Asexual reproduction: The purpose of asexual reproduction is the stability of the plant. It is the process of propagating material of a plant to multiply, without the help of genetic methods seeds.Some if asexual reproduction is rooting cuttings, division, layering, tissue culture, etc.
Approximately 5000 plant patents have been issued (approximately 0.2% of all U.S. patents) and the variety "roses" made up for a big chunk. The demand for patent protection came primarily from the rose growers and fruit growers.
The important question to consider, while the size of the plant is used in this statute, a U.S. court decision, specifically in 1940 that bacteria can not be protected by patents facility. Although bacteria may be broadly classified in the plant kingdom and reproduce asexually, the Court ruled that the term has its ordinary meaning in the common language of the people. But the mushrooms are included in the price.
The Patent and Trademark Office is responsible for the management of the plant patents. The application is almost the same as the other patent application, except only a single claim is permissible. Samples are not routinely required, and a drawing, colored, if necessary, is not enough. The claim must be novel, distinctive character of the new facility to be in the relative and less precise than in quantitative terms, claims for other products from other species. This means that the patent just on specific question for example: When a plant is based on a genetic forms and invent the cure for some deadly deceases the protection sought to be clarified that reason, and not in general.
The propagation of plants by special methods, as general methods of production, as directed by the techniques for creating a new variety is individual for protection under the general law of the process patents. In general, other plant cell cultures, the methods are used for the purposes of the production of secondary metabolites, such as perfumes and flavorings as the plants are not even the same patentable invention as a process audit of the usual Art The same can be said in relation to the genetic manipulation of plants for these and related purposes, a strategy which clearly falls under the rubric of the microbiological process of invention. The manner of reporting is available for inventors and in this context will be affected if some of the special difficulties in the patenting of this type of technology.
All the elements of patentability, together with elements of patentability, together with the concept of information is also necessary to ensure the protection of the facility. The plant patent relates to the plant itself and not the flowers, fruits, seeds or other products.
U.S. Plant Variety Rights
Some breeders / companies estimate that it takes ten to five to ten years to develop a new variety. , The process used to winter breeding and genetic engineering. Although these applications can create new varieties faster, they also have high costs. To return the cost of research and development, the breeder, with some exclusive marketing rights for the new variety. This is one of the economic aspects of protection, either in the form of patents or other type of protection. In the case of the protection of the flora of this law is seen as breeders' right-PBR (Plant Variety Protection or PVP).
Plant Variety Protection Act of 1970 applies only to plants propagated from seed. It provides protection for breeders of new varieties of sexually reproduced plant (with the exception of bacteria, fungi, or the first generation hybrids) who has so reproduced the variety or his successor in interest, the right to plant variety protection. With the 1994 amendments, Congress strengthened PVPA protection by the sale of the crop exemption, which the protection period, eighteen to twenty years and for infringement suits against the makers of "essentially derived" varieties. Congress made this provision, the practice of copying of protected varieties. It is analyzed that the variety, which are copied from the first number (FN).
In the case of the protection of plant varieties, the application will be in a different way. The Plant Variety Protection Office (PVPO) is responsible for the management of PVP law as originating in Agricultural Marketing unit of the Department of Agriculture, and they are in the question of the protection certificate, not the USPTO. The procedure is somewhat lengthy and complex
The process of applying, testing and delivery of the certificate
All U.S. citizens and residents and U.S. companies are entitled to for PVP. The varieties of eligibility, new, unified, stable, and from all other varieties. The information in great need by the applicant to the PVPO. The application forms have certain information in relation to the identification of ownership and diversity, its name, contact with the family, such as botanical observation clarification (family, genus and species) in the case of a sale or disposal of the seed, the report must be signed by the applicant when and where different was to doubt whether the variety is new. The request is consistent with the above points with charges and seed sample exhibits the distinctiveness of the variety.
The distinctness is after the search is appropriate in the affected databases. Mr Commissioner, whether the findings of the auditor writes the applicant to make the payment of fees for the issuance of the certificate is issued, and it is by analogy.
Utility model for plants
The process of application and the examination to obtain utility patent is like the plant patent system. Newly developed plant breeds are patentable subject matter, according to the general utility patent statute (despite additional protection is potentially available under the Plant Patent Act and Plant Variety Protection Act). For utility patents, plant variety rights must demonstrate that the plant has new, useful and not obvious, and must include a written description of the facility and the deposit of seed that is publicly accessible.
The reasons for the exclusion of the bacteria may for the same reason justified while the decree of 1930 patents and exclusion of fungi is not known where hybrids are excluded, they have in their own protection for their developers, because it may make the in-bred or stocks of hybrid and can not be reproduced by the hybrid seeds. In the newly approved varieties of hybrid corn and in-bred, after the introduction of the TRIPS proposal, the patentable subject matter the Supreme Court in JEM AG Supply. Inc v Pioneer Hi-Bred International Inc. (2002) and for obtaining utility.
This case presents the question whether utility models can be used for installations under 35 USC Section 101, or whether the Plant Variety Protection Act or the Plant Patent Act. The U.S. Supreme Court ruled that utility can be used for newly developed sexually reproduced plant and grain (FN). The court denied the petitioner that the exclusive means of protecting sexually reproduced plant and seeds are available in the Plant Patent Act of 1930 (PPA) and the Plant Variety Protection Act (PVPA). It was established by the Supreme Court held that the newly developed breeds in the subject matter of section 101 and neither the PPA nor the PVPA the ability of Section 101 reporting against the petitioner (JEMAG Supply Inc) arguments that the award of patents for utility plant upset the scheme contemplated by Congress. Court is well aware of the broad language of section 101 (the decision of the Chakrabarthy case) the completion of the organisms are patentable in this section. Response to the petitioners is that the District "(FN) and Federal Circuits' (FN) has appealed against the decision of the Congress's intention, the Court that there was no specific language in the PPA shows that Congress, by these statutes as" exclusive means for the granting of intellectual property protection of plants "(FN). In view of the PVPA, it was explained that, because it is difficult for an application for a patent as a plant variety protection (PVP) certificate, which only makes sense that utility would provide a broader scope of protection, and it was also noted PVPA also that not even "any statement that Plant Variety Certificates would be the exclusive means of protecting sexually reproduced plants" and that Congress passed at the PVPA, the PTO had already taken a number of utility installations.
Trade secret protection
Trade secret protection is beyond the statutes of the federal government and from state tort law. The main business morale is through this mode, the protection and thus prevent the misappropriation of someone valuable trade secret. The unlimited duration of protection, unlike other patent and plant variety protection, is the most fascinating one for the breeders. But the most important element of trade secret kept as "secret" of continuous stress, costly expenditure for the pension to the "secret" which "are no longer secret" with some act of reverse engineering from the invention of the competitor or someone otherwise. Therefore this type of protection load large amount of uncertainties and risks.
Pioneer Hi-Bred International Inc. v. Holden Foundation Seeds and the "genetic message of the Cornfield Lowa", there is a case with misappropriating the genetic material in two of its hybrid corn seed parent lines, and it was argued through the Pioneer, that these were very successful in their parents and the lines used to develop Holden copies, only slightly different. In examining the case, the District Court said that this was a clear case of infringement and trade secret of the defendant is liable. On appeal, Eight Circuit upheld the decision of the District Court and the plant breeder's right to sue others for misappropriation of the "secret" messages genetic varieties of them.
As the Eight Circuit has held that the owners of trade secrets could not have the absolute right over the property in trade secrets, to prevent the world from that secrecy. While the patent grants the patentee the right to exclude others from making, using, or selling his invention, trade secret law is merely to guard against the improper use of an adequately protect commercial secrets. Since the purpose of trade secret is to maintain morale and to promote innovation, more protection can not be expected from the trade, the secret is inevitable for the protection of a plant.
Sale
Another means to achieve the protection of intellectual property is by contract. Seed companies also have the language in purchase contracts to ensure better protection than the PVPA can offer. It is a contract between the buyer / builder and a supplier seed company, where the buyer acknowledges and agrees that the production of the suppliers will only be used for animal feed or for processing and will not be used or sold for seed, breeding or improvement of diversity. Further, there is a company, it would be a breach of this agreement, the subsequent production of the seed (sold) to use a variety of seed or seed, said of the production which may be used for seed from other purposes other companies as suppliers .
Under this agreement, the supplier can pocket maximum infringement remedies when the contract is violated, such as protection under this contract even more protection than PVPA and probably better than that of the utility model protection.
Label Messages
Label instructions offer another option of protection.
TRIPS Agreement on Plant Health
Article 27 (3) (b) states that members must have the patent or sui generis protection, or by a combination of both. Article 27 is merely an adaptation of the existing practice of intellectual property. Protection, whether in the form of patents or plant variety protection, in accordance with the International Convention for the Protection of New Varieties of Plants (UPOV) - the generally accepted alternative to patent protection - for the genetic material for many years. Article 27 (3) should be a mandatory protection, should be or the extent to which TRIPS may restrict the scope of the law. In addition to the flexibility within the provisions relating specifically to the patent ..
Article 27 (3) than the two possible approaches by which it is Member States with the option of choosing one of the two in accordance with the UPOV-line is already being used by the U.S. --
Until the landmark decision In re Hibberd by a U.S. court in 1985, as the TRIPS Agreement does not have significant consequences for the rights of farmers. Article 27 (3) provides the important point for protection is a reason for concern, as long as the exemption for farmers and breeders to use varieties protected under the Plant Varieties Protection Act is no longer active within the Utility Patents Act ( TRIPS)
UPOV-line protection
The most frequent sui generis protection for plant varieties is clearly defined by the UPOV. It was recognized that the plant breeding industry to be economically very important. To ensure that economic, as wellas, agriculture, potential of this new industry, he was of the opinion was that the plants should be protected by a form of intellectual property.
In the U.S., with the introduction of a protection of plants asexually reproduction has a turning point in PVP Act of 1970 on the protection for sexually reproduced plants are available and with the introduction of the TRIPS Agreement, it is possible, even the utility patent on the plant material.
Under UPOV 1978 local farmers' varieties still considered "open access", because they rarely meet the requirements of the "unity" and "stability". UPOV 1978 is a universal provision entitled "farmer exemption" that everyone who buys a seed of protected varieties, to plant seeds for the resulting subsequent replanting rights without payment of additional royalties to the original plant variety rights.
This had offended the company and they have different lobbying governments to this practice of "farmer exemption" with "research exemption" under the UPOV-1978. The company's intentions were of the UPOV-1991, when it was revised. The revision in 1991, the "Peasants' Liberation 'in an optional instead of mandatory (Art.15.2). It is at the discretion of the governments of each Member State, whether this exception to the farmers or not. The breeders of the institution or a exemption as marketing essentially derived varieties without the consent of the original plant variety rights is limited to providing a direct incentive for the redevelopment of monopoly.The revised UPOV-91 is authorized Member States to utility for sexually reproduced plants, was not allowed in the last UPOV 78.
Conclusion
The protection for breeders and farmers are definitely more incentives to useful inventions and technological revolutions. But as the Constitution authorizes Congress to execute the mission by protecting the inventor or breeder for their use of skills, knowledge, money, effort and a few other contributions to the invention, the primary concern is with the public interest. But with the implementation of international trade agreements such as TRIPS and UPOV, this kind of attitude is a U turn from the policy adopted by the framers of the Constitution and the sacred intent of Congress.
It would be appropriate to believe that farmers or other breeders go for some traditional way of cultivation, but it is a question whether they are eligible for the primitive type of agriculture with a pick. It's technological era. The new way of cultivation is reminiscent of the commitment of the newly found seeds and methods by which farmers and breeders can be good quality products at minimal cost.
In the event that it is expensive, and not attracting customers, it would be ideal for farmers, that they are based on traditional agriculture. But the scenario is changing. You have to dance to the tunes of the changing phases. Hence the precautions should be taken to prevent this from agricultural sect himself from society because of the riots by some big company or individual, or group of breeders.
Meerza Zaheer LL.M (USA), Attorney of http://www.pmgip.com
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