After the admission of Taiwan by the WTO, Taiwan’s financial and trade regulations have been converging with those of the world at a greater pace. In 2007, the output of the agronomic food industry in Taiwan accounted for 43% of total agricultural production value (168.4 billion NT dollars - Agricultural Statistics Year Book 2007), well surpassing the individual contribution by forestry, fisheries, or livestock. Agricultural production changes year by year in accordance with both global and domestic influences such as climate, farmers’ intentions, market demands, and the composition of imported agricultural products.
Although domestic products are facing fierce competition from imports, Taiwan's superior agricultural products also have better opportunities to enter international markets. In order to carry on the duties of serving farmers and developing the agricultural food industry, the Agriculture and Food Agency (AFA) administers the Plant Variety and Plant Seed Act and issues Certificates of Protection in a timely manner. The Act was initially promulgated as the “Plant Seed Act” on December 5, 1988, and later amended to the “Plant Variety and Seed Act (PVPSA)” on April 21, 2004, entering into force on June 30, 2005. The Act provides legal protection to breeders of new varieties of plants, which are sexually reproduced (by seed) or tuber-propagated.
Since seeds and seedlings are the basis of crop production, and the quality of the seed industry exerts a direct effect upon the development of the overall crop production industry, in order to fortify the domestic seed industry and to promote seed trade between Taiwan and other countries, the AFA administers the PVPSA to protect breeders' rights; thereby encouraging improvement of crop varieties. AFA issues Certificates of Protection for new varieties of plants that are seed reproduced or tuber propagated. A Certificate of Protection is awarded to the owner of a variety after an examination determines that the variety is new, distinct from other varieties, and genetically uniform and stable through successive generations.
Under PVPSA, the “right to apply for a plant variety right” means the right to apply for a plant variety right in accordance with the Act, and a “holder of the right to apply for a plant variety right” means the breeder or any of the breeder’s assignees or heirs, unless otherwise specified in the Act, or as otherwise provided in an agreement between the parties. The plant variety right and/or the right to apply for a plant variety right may be assigned or inherited. Like patent rights in Taiwan, the assignment or inheritance of a plant variety right or the right to apply for a plant variety right is not binding against a bona fide third party unless it has been recorded. Similar to the right to apply for a patent in Taiwan, the right to apply for a plant variety right under PVPSA cannot be the subject of a pledge. If the plant variety right is used as the subject of a pledge, the pledgee would be unable to exercise such plant variety right, unless otherwise specified in an agreement between the parties.
Application for a plant variety right in Taiwan by foreigners may not be accepted if such applicant’s country and the Republic of China (R.O.C.) are not parties to an international treaty or members of an organization for the protection of plant varieties. More specifically, a plant variety right will not be issued under any of the following situations: when no treaty or agreement for the mutual protection of plant varieties exists between such foreign country and the R.O.C., when no agreement for the mutual protection of plant varieties has been concluded by and between organizations or institutions of the foreign country and those of the R.O.C. and approved by the central competent authority; or where a foreign applicant’s country does not accept applications for protection of plant variety rights from nationals of the R.O.C..
To apply for a plant variety right under PVPSA, a plant variety must have the characteristics of novelty, distinctness, uniformity, and stability, as well as an appropriate plant variety denomination.
“Novelty” as referred to in the Act requires that prior to the date of filing of the application for a plant variety right, no plant seeds and no harvested material of such plant variety have been sold or promoted solely by, or with the consent of, the holder of the right to apply for the plant variety right either inside the R.O.C. for longer than one year or outside the R.O.C. for longer than six years in the case of trees or perennial vine plants, or for longer than four years in the case of all other plant species.
“Distinctness” requires that a plant variety can be distinguished on the basis of one or more recognizable and articulable characteristics from any other plant varieties that have been in general circulation, or that have obtained a plant variety right either inside or outside the R.O.C. prior to the date of filing the application for the plant variety right.
“Uniformity” requires that the characteristics of individual plants of the plant variety correspond with each other within the boundaries of predictable natural variations.
“Stability” requires that the main characteristics of the plant variety are able to remain unchanged after repeated propagation, or after a number of cycles of propagation, through a designated method of propagation.
“Denomination” can neither be: 1. expressed solely in the form of a number or numbers, 2. identical with or similar to the denomination of another plant variety within the same species or a closely related species, 3. likely to cause confusion or false identification as to the characteristics of the plant variety or the identity of the breeder, or 4. contrary to public order and good custom.
Compared to the 1991 Act of UPOV (International Union for the Protection of New Varieties of Plants), the criteria for applying for a plant variety right under PVPSA is similar to those for the grant of the breeder’s right under the 1991 Act of UPOV. More specifically, the 1991 Act imposes a limitation on the contracting parties, which limits the criteria for granting the breeder’s right to a plant variety that is new, distinct, uniform, stable as well as having an appropriate denomination. With respect to the Novelty requirement of the 1991 Act, the content of this criterion is almost the same with the corresponding part of PVPSA, except the 1991 Act provides an extension of protection to varieties of recent creation under Article 6 of Chapter 3, which stipulates that
Where a contracting party applies this Convention to a plant genus or species to which it did not previously apply the Convention or an earlier Act, it may consider a variety of recent creation existing at the date of such extension of protection to satisfy the condition of novelty…even where the sale or disposal to others described in that paragraph took place earlier than the time limits defined in that paragraph.
Since Taiwan is not a contracting party of UPOV, the exceptions of the 1991 Act regarding novelty are not applicable for the practice of plant variety right protection in Taiwan under PVPSA and are therefore absent from it. As to the distinctness requirement, the 1991 Act provides that
The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application. In particular, the filing of an application for the granting of a breeder's right or for the entering of another variety in an official register of varieties, in any country, shall be deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of a breeder's right or to the entering of the said other variety in the official register of varieties, as the case may be. A phenotype of the plant variety applying for breeder’s right under the 1991 Act is required to be clearly distinguishable from those already in common knowledge, including the varieties still in the filing stage of applying for the protection of another country; while under PVPSA, the variety applying for protection must not only be distinguishable based on one or more recognizable and articulable characteristics, but also compared to those in general circulation or having obtained legal protection in any country. The uniformity requirements of the 1991 Act and PVPSA are substantially the same; both require the characteristics of individual plants of the plant variety exhibit similarity or consistency in comparison with each other, with the exception of predictable natural variations in propagation. With regard to stability, both acts require that the relevant characteristics of the plant variety must remain unchanged after repeated propagation or at least a particular propagation cycle. Similarly, the denomination requirement of the 1991 Act is almost the same with the corresponding regulation of PVPSA, except that PVPSA additionally demands the denomination of the plant variety must not be contrary to public order and good custom.
In Taiwan, a plant variety right comes into effect on the date that the plant variety right is approved and published. Under PVPSA, the term of a plant variety right for a tree or a perennial vine plant is twenty-five (25) years from the date that the plant variety right becomes effective, and the validity term for all other plant species is twenty (20) years from the date of approval and publication of the plant variety right. The holder of a plant variety right has an exclusive right to preclude others from engaging, without the consent of the holder, in the following acts with respect to plant seeds to which the holder has the plant variety right:
Production or propagation;
Conditioning for the purpose of propagation;
Offering for sale;
Selling or otherwise marketing;
importing or exporting, or
holding for any of the purposes in the preceding five acts.
Protection of Plant Variety Right
Such exclusive rights extend to the harvested material obtained through use of plant seeds of such plant variety as well as to the products obtained directly through use of the harvested material of such plant variety only if the plant species is one of those published by the competent authority. The exercise of the rights which extends to the harvested material or the direct products of the harvested material is limited to where the holder of the plant variety right has had no reasonable opportunity to exercise his or her rights with respect to the foregoing six acts.
The protection of plant variety rights under PVPSA extends to dependent varieties. The so-called dependent varieties are varieties that
are essentially derived from a variety protected by the plant variety right where such protected variety is not essentially derived from another variety,
are not clearly distinguishable in comparison with a variety protected by the plant variety right, and
require repeated use of a variety protected by the plant variety right in order to be produced.
A “variety essentially derived” from another variety as referred to in the foregoing means a variety that is not only derived from an initial variety or from a variety that is essentially derived from an initial variety, but also is clearly distinguishable in comparison with the initial variety, and, except for differences as a result of the act of derivation, retains the characteristics expressed by the genotype or combination of genotypes of the initial variety. Nonetheless, a plant variety right does not protect a dependent variety whose existence was a matter of common knowledge before the amendment to the PVPSA took effect.
The content of the exclusive right of a breeder under the 1991 UPOV amendments is substantially the same with that of plant variety right under PVPSA. Both acts authorize the breeder or the holder of plant variety right to exclude others from production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing, as well as stocking for any of the purposes of the preceding acts. The exclusive right extends to the harvested material and products directly derived from harvested material of the protected variety under both the 1991 Act and PVPSA.
The protection of plant variety rights under PVPSA covers the dependent varieties which,
Are derived essentially from a variety protected by the plant variety right, where such protected variety is not essentially derived from another variety,
Are not clearly distinguishable in comparison with a variety protected by the plant variety right, and
Require repeated use of a variety protected by the plant variety right in order to be produced. The plant variety right does not protect a dependent variety whose existence was a matter of common knowledge before the amendment to PVPSA took effect.
A “variety essentially derived” from another variety as referred to in this Act means a variety which,
Is derived from an initial variety, or from a variety that is essentially derived from an initial variety;
Is clearly distinguishable in comparison with the initial variety, and
Except for differences as a result of the act of derivation, retains the characteristics expressed by the genotype or combination of genotypes of the initial variety.
Similar to the PVPSA, the 1991 of UPOV amendments has a counter part provision regarding dependent varieties. Frankly speaking, varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety, varieties which are not clearly distinguishable from the protected variety and varieties whose production requires the repeated use of the protected variety are dependent varieties and all legally protected under both acts.
Beyond the Protection of Plant Variety Right
Nevertheless, the following acts are outside of the scope of the plant variety right protection under PVPSA,
Acts by an individual for non-profit purposes;
Acts for experimental or research purposes;
Acts for the purpose of breeding other varieties, but not including acts for the purpose of breeding dependent varieties set forth in the preceding paragraph;
Acts by farmers of keeping, for the farmer’s own use, plant seeds of a variety protected by a plant variety right or of the harvested material obtained from plant seeds of dependent varieties which is essentially derived from a variety protected by the plant variety right, where such protected variety is not essentially derived from another variety, or which is not clearly distinguishable in comparison with a variety protected by the plant variety right;
Acts, at a farmer’s request and for the purpose of providing the farmer with propagating material, of engaging in the conditioning and nursing of harvested material obtained from the propagating material of a variety protected by a plant variety right, or of its dependent variety;
Acts of domestically selling or otherwise circulating any material of a variety protected by a plant variety right, or its dependent variety, as undertaken voluntarily by or with the consent of the holder of the plant variety right, but not including acts of further propagation of such protected variety; or
Acts with respect to any material derived from the material set forth in the preceding acts, but not including acts of further propagation of such protected variety.
Acts 4 and 5 apply only to plant species published by the central competent authority for the purposes of ensuring food safety. The “material” as referred to in the foregoing means any propagating material, any harvested material, and any products made directly from the harvested material, of a plant variety. Such harvested material shall include entire plants or parts of plants. Acts 6 and 7 do not include acts of exporting propagating material of such protected variety to a country that does not protect the plant genus or species to which the plant variety belongs, provided that this provision shall not apply where the purpose is for final consumption.
Compared to PVPSA, which lists out the acts beyond the plant variety right protection, there are three categories of acts not covered by the breeder’s right under the 1991 UPOV convention. The first category is compulsory exceptions, which includes acts performed privately and for non-commercial purposes, for experimental purposes and for the purpose of breeding other varieties, as well as acts requiring the breeder’s authorization in respect of such other varieties. The second category of acts falling beyond the legal protection of the 1991 Act is optional exception. In this category, a contracting party of UPOV may restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, and the protected variety or varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety, and varieties which are not clearly distinguishable from the protected variety.
The final category exempted from the coverage of legal protection under the 1991 Act is exhaustion of a breeder’s right. A breeder's right is exhausted when concerning acts of any material of the protected variety, or of an essentially derived variety, which has been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned, or any material derived from the said material. Unless such acts involve further propagation of the variety in question or involve an export of material of the variety, which enables the propagation of the variety into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. For the purposes of exhaustion of a breeder’s right under the 1991 Act, the "material" referred in the foregoing means, in relation to a variety, propagating material of any kind, harvested material, including entire plants and parts of plants, and any product made directly from the harvested material.
Summary
In summary, the essence oftheplant variety right under PVPSA is very much the same with that of the breeders’ right under the 1991 UPOV amendments. Moreover, the way that PVPSA protects the plant variety right in Taiwan is in many aspects similar to the way that Taiwan’s Patent Act protects the patent rights domestically. One may find that PVPSA has many counterparts in Taiwan’s Patent Act, which literally employ the same language as Taiwan’s Patent Act. For example, transfer of the plant variety right, holder of the plant variety right in an employment relationship, foreigner applications for a plant variety right, licensing the plant variety right to others, and infringement are regulated under PVPSA in a way that is basically the same as Taiwan’s Patent Act. However, in order to enhance the enforceability of PVPSA, this Act has a penal provision absent from both the 1991 UPOV amendments and Taiwan’s Patent Act. More specifically, people can be fined, for instance, for importing or exporting plant seeds, their harvested material, or products made directly from their harvested material in violation of PVPSA, or promoting and sale without prior field testing, as well as failing to use the denomination for a variety for which a plant variety right has been obtained. If a fine under PVPSA fails to be paid within the time limit for payment, such fine will be submitted for compulsory enforcement. Thus, breeders can enjoy a comprehensive legal protection of their plant variety in Taiwan.
