Comparison on the Regulations of the Plant Breeders'' Rights

• Main Authors: Chen, Yi-Chen, 陳怡臻
• Other Authors: Warren H.J. Kauo, Shieh Ming-Yung
• Format: Others
• Language: zh-TW
• Published: 1997
• Online Access: http://ndltd.ncl.edu.tw/handle/74634887509729498426

碩士 === 國立臺灣大學 === 農藝學系 === 85 === In order to cope with the advances of bio-technology and the demands of the industry, the International Convention for the Protection of New Varieties of Plants (the UPOV Convention) revised in 1991, which had been adopted by European Union (EU) and USA in 1994. The aim of this thesis is to compare the differences of the Plant Breeder*s Right(PBR) in the Plant Seed and Seedlings law of Taiwan that is based on the 1978 Act of UPOV, with the 1978 and 1991 Act of UPOV and some countries* regulations that are predicated on the 1978 or 1991 Act of UPOV. These countries are Australia (1990), Canada(1990), Germany (1992), Japan (1982), Netherlands (1984), United Kingdom (1983), European Union (EU,1994) and United States of America (1980, 1994). The differences are as follows: 1. Protected species. After the in force of the Plant Seed and Seedlings Law of Taiwan, 25 vegetable species and has protected. The number of protected species of the UPOV member states varies from each other. According to the 1991 convention, these countries should, in duetime, adopt all plant genera and species. 2. The criteria for protection. In Taiwan, a variety is congruous with novelty if, and only if it has not been offered for sale in Taiwan before the filing of the application. The member states of UPOV, however, allow one to six years of grace, according to plant species. In Taiwan, uniformity is not included in the criteria. Stability, as well as heredity that is absent elsewhere, is not well defined. 3. The scope of PBR. In Taiwan, as well as the1978 UPOV Act, the breeder*s right covers only the propagating material of the protected variety.Under the new convention, the scope of the breeders* rights are extended to the harvested material and the direct product of harvested material of the protected varie ty, if (1) they are obtained through the unauthorized use of propagating material of the protected variety, and (2) unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagat ing material. 4. Exclusive right. In Taiwan,the breeder shall be gran ted the right of excluding others from selling or marketing or using the propagating materials of the protected variety, but there is no precise def initions on *use*. Under the 1991 Act of UPOV, the following activities in respect of propagating material of the protected variety shall require the authorization of the breeder: (1) production or reproduction, (2)condit ioning for the purpose of propagation, (3) offering for sale, (4)selling or other marketing, (5)exporting, (6)importing, and (7) stocking for any of t he purpose mentioned in (1) to (6) above. 5. Essential derived variety. In the 1991 Act of UPOV, the concept of essential derived variety was adopted, which was absent from the 1978 Act of UPOV and the due law in Taiwan. Under the new regulation, the PBR shall be extended to varieties that are essentially derived from the protected variety, and thus yields a restriction on the breeding exemption. 6. Duration of the PBR. The period of protection in Taiwan shall last until the end of the fifteenth year following the grant of the variety right, which is consis tent with that of the 1978 UPOV Act. In the later Act, the minimum period for vines and trees is 18 years. The minimum duration of the PBR in the 1991 Act of UPOV is 20 years and for trees and vines, 25 years. 7. Farmer exemption. The farmers may save seed from their own harvest for uses other than commercial marketing under the 1978 UPOV Act and the due law of Taiwan. This exemption does not apply to ornamental plants and cut flowers. The 1991 Act ofUPOV allows member states, within reasonable limits, to restrict farmer xemption. In EU, the farmer xemption. In EU, the farmer exemption can only apply to the non-hybrid and non- composite varieties of cereals, potatoes, and fodder, oil, fibre plants. In USA, it still applies to all sexual- reproduction variety. 8. Reciprocity principle and priority. In Taiwan and in UPOV member states as well, a foreigner may apply a PBR if there is a reciprocal arrangement between the two countries. However, the priority art icle accompanying the reciprocity principle was not found in the due law of Ta iwan. 9. The early public notice and where to issue. Whenever the Plant Variety Protection Offices of UPOV member states accept an app lication, they should give public notice of the acceptance of application as soon as possible. Where in Taiwan, they give public notice only after the PBR to the applican was granted. Besides, the publication bul ltin is not specified in Taiwan. 10. Compulsory exploitation right. The Plant Seed and Seedling Law of Taiwan does not allow the Office, insofar as it appears justified in the public interest, and taking into account the economic acceptability for the owner of a PBR, to grant a com pulsory exploitation right to the other person. It does appear in the PBR regulations of the member states of UPOV.