26 January, 2018
The Thai Plant Varieties Protection Act (the PVP Act or the Act) protects newly bred or developed plant breeds. It gives plant breeders exclusive rights to reproduce, propagate, sell, import, or export their registered new plant varieties. The Act impacts a wide range of businesses, from agricultural to pharmaceutical companies, R&D companies and more, as it governs all kinds of plants, including those which are used in food, beverages, nutrition products, and cosmetics, as active pharmaceutical ingredients, or for decorative purposes. Statistics on registration of plant varieties under the current Act show that 68% are registered by private entities 15% by the government sector, 11% by farmers, and 6% by educational institutions.
The current PVP Act, first enacted in B.E. 2542 (1999), has established IP protection for breeders of new plant varieties, protection of local domestic plant varieties for local communities, and a consent request system for the use of wild and general domestic plant varieties. With the view that the current Act does not attract foreign investment from plant R&D and seed businesses, in October 2017 the Department of Agriculture (the DOA) published a draft amendment to the Act on its website. Interestingly, most of the concepts introduced by the draft amendment seem to have been adopted from the International Convention for the Protection of New Varieties of Plants of 1991 (the UPOV 1991), of which Thailand is not a member. The UPOV 1991 is an international cooperation known to offer "patent-like" protection as it offers strong, exclusive rights to breeders, allows few exceptions and little flexibility with respect to the use of plant varieties, and provides less recognition for Farmer’s Rights than other sui generis systems for plant variety protection. Unsurprisingly, the draft amendment is a sensitive topic in Thailand, with a population and economy which are still largely agrarian.
Some of the more interesting amendments are summarized below:
Longer Protection Term
Under the current Act, protection terms for newly registered plant varieties are 12 years for plants capable of yielding fruits within two (2) years or less, 17 years for those capable of yielding fruits after two (2) years, and 27 years for plants which are of tree-based utilization. The proposed amendment would re-categorize the protections terms and also offer longer protection periods, (i.e., 25 years for perennials and vines and 20 years for any other category of plants).
New Restriction on Registration: Sale or Distribution of Produce
To seek protection under the PVP Act, a new plant variety must be a variety of which the propagating material (e.g. seeds, roots, stems) has not been domestically exploited, whether through sale or distribution, for more than one year prior to the filing date of the new plant variety application. Under the draft amendment, in addition to the restriction on the sale and distribution of propagating material, the Act would also restrict the sale and distribution of a plant variety's produce, (e.g., flowers, fruits, vegetables, legumes, nuts, grains, etc.). This requirement may not greatly affect plant breeding businesses that regularly deal with regulatory compliance, but it could make it more difficult for average farmers to obtain protection of their newly discovered plant varieties because most produce must be sold quickly, often within days of harvest.
Under the draft amendment, new varieties that have been sold or distributed outside of Thailand would also face the same restriction. However, they are instead allowed a period of not more than four (4) years prior to the filing date. There is speculation that this additional time may encourage foreign seed businesses to register their new plant varieties in Thailand.
Less Requirement for Genetically Modified (GM) Varieties
Currently, a genetically modified plant variety must pass an environmental impact assessment by the DOA or another competent authority before registration as a new plant variety. The draft amendment, however, would do away with this requirement altogether. This would reduce the burden for breeders of genetically-modified varieties looking to protect their varieties in Thailand, however, concerns regarding possible harm to the environment and contamination with non-GM crops have been raised by academic scholars and many non-governmental organizations.
Essentially Derived Varieties (EDVs)
The current PVP Act does not recognize the practice of cosmetic breeding, (i.e., the breeding in which a protected variety is altered insignificantly in order to circumvent infringement and so that it can be registered as another protected variety). In order to prevent this practice, the concept of essentially derived varieties (EDVs) is introduced in the draft amendment.
As a result, the reproduction, conditioning for propagating, selling, importing, and exporting of plant varieties that have been predominantly derived from a protected variety, varieties which are not clearly distinguishable from the protected variety, and varieties for which production requires the use of the protected variety would be considered to infringe the rights of the original plant variety's owner.
Obligation to Request for Consent and Set Up Mutually Agreed Terms
Under the current PVP Act, any person or entity who wishes to use or collect a plant variety in Thailand must first file a request for consent with the DOA or the responsible local authority. If the use or collection is for commercial purposes, the requestor must obtain a prior informed consent (PIC) and establish mutually agreed terms (MAT) regarding division of any benefits arising out of such use. The obligation above applies to the use or collection of any "wild variety," "local domestic plant variety," and "general domestic plant variety," as defined under the current PVP Act. However, the newly proposed definition of "general domestic plant variety" will not include varieties which have undergone breeding, meaning anyone able to prove that a variety of interest has been bred would no longer be subject to the above obligations and may utilize the variety freely.
If the current draft amendment is enacted, it seems that fewer varieties will be subject to PIC and MAT requirements. In response, legal and agricultural scholars have raised concerns about whether this outcome contravenes the main principle of the Convention on Biological Diversity (the CBD), under which Thailand is obligated to ensure the fair and equitable sharing of benefits arising from the utilization of all plant varieties in Thailand, which includes each and every variety that was grown on Thai soil regardless of its origin.
It is worth noting that under the current PVP Act, failure to meet PIC and MAT requirements can result in a criminal penalty. However, in the draft amendment, while the criminal penalty for failure to establish MAT remains, the penalty for failure to acquire PIC is rescinded.
More Restriction on Farmers’ Privilege
Farming traditions in many developing countries involve the cordial or ritualistic giving of seeds and the storage of propagating material for use during the next growing season. As such, laws that protect plant varieties in these countries typically allow for farmers to grow protected varieties without that constituting infringement of the breeder’s rights. In Thailand, the current PVP Act allows farmers to cultivate or propagate a protected variety if the farmers use the propagating material that they have obtained by planting in their own holdings, but the Minister of Agriculture and Cooperatives under the approval of the Plant Varieties Protection Commission has the discretion to limit the cultivation and propagation of the certain selected varieties to only three times the quantity that the farmer originally obtained.
However, in the draft amendment, such authorities may now limit all or partial cultivation or propagation of certain selected varieties. Much of the criticism from academic scholars has been directed at this amendment in particular, as it is seen to go against Thai farming traditions, limit the range of varieties that farmers can grow in order to make a living, and hinder the development of new plant breeds.
The DOA held online public hearings regarding this draft amendment in October and November 2017. In response, as discussed above, numerous concerns were submitted, arguing that the draft amendment does not offer the flexibility for farmers still necessary in Thailand. While the online hearing has been closed, the DOA is still accepting written comments until 20 February 2018.
For further information, please contact:
Say Sujintaya, Partner, Baker & McKenzie
say.sujintaya@bakermckenzie.com
