QuestionsQuestions (Republic Act No. 9168)
RA 9168 is the “Philippine Plant Variety Protection Act of 2002.” It provides protection to new plant varieties by granting exclusive rights to plant breeders, establishes a National Plant Variety Protection Board, and sets the rules for registration, rights, infringement, and related procedures.
A PVP shall be granted only for varieties that are: (1) new, (2) distinct, (3) uniform, and (4) stable (Sec. 4).
A variety is “new” if the propagating/harvested material has not been sold or otherwise disposed of by/with the breeder’s consent for exploitation; and if such sale/disposal was not made: (i) in the Philippines for more than one (1) year before filing; or (ii) in other countries for more than four (4) years, or for vines/trees more than six (6) years before filing. A specific transitional/exception rule is also provided for certain sales up to five (5) years before approval, provided the application is filed within one (1) year from approval.
It is distinct if it is clearly distinguishable from any commonly known variety (Sec. 6). Also, filing an application or entering a variety in an official register renders it publicly known from the date of the filing/entry—provided the application leads to a certificate or entry.
Uniformity means the variety is sufficiently uniform in relevant characteristics, considering expected variation from propagation features (Sec. 7). Stability means the relevant characteristics remain unchanged after repeated propagation or at the end of each propagation cycle (Sec. 8).
The denomination is the generic description used to designate the variety (Sec. 9). It must be different from existing denominations for the same or closely related species (Sec. 9). It must enable identification and may not consist solely of figures (Sec. 11), and it must not be misleading or confusing (Sec. 12). If it fails requirements, registration is refused and a new denomination must be proposed (Sec. 13).
Denomination registration is not granted if it has already been registered to another breeder or is used by a third party in relation to sale/offering for sale prior to the filing/priority date. If multiple applicants apply for the same denomination, the earliest filing/priority date wins (Sec. 10).
Any breeder with respect to the developed variety may apply (Sec. 17). If two or more persons independently develop the same new variety, the certificate belongs to the person who files first (Sec. 20). If multiple applicants file, the earliest filing/priority date controls (Sec. 20).
If an employee develops a plant variety in the course of regular employment and as a result of regular duty, the PVP belongs to the employer unless there is a written stipulation to the contrary (Sec. 19).
If a breeder previously filed in another country, the application may be considered locally filed as of the foreign filing date if the applicant expressly claims priority, files within 12 months from the earliest foreign filing, and submits authenticated documents and evidence within 6 months from the local filing (Sec. 21).
After the Board accords a filing date, the application is published within 60 days at the applicant’s expense in the Plant Variety Gazette (Sec. 30). Before publication, the application and documents are not available to the public without written consent of the applicant (Sec. 30). After publication, persons may inspect documents as prescribed.
Any person who believes the applicant is not entitled may oppose within the period prescribed by the Board from publication and before issuance (Sec. 31). Grounds include: (1) the opponent is entitled to the breeder’s right as against the applicant; or (2) the variety is not registrable under the Act. If opposition is based on PVP conditions, it is considered together with the application examination (Sec. 31).
Holders may authorize: production/reproduction, conditioning for propagation, offering for sale, selling/marketing, exporting, importing, and stocking for the above purposes (Sec. 36).
Except for Sections 43 and 44, rights extend to harvested materials (entire plant or parts) if production resulted directly from unauthorized use of protected propagating materials covered by the Act, unless the holder had a reasonable opportunity to exercise the right regarding propagating materials (Sec. 38).
Protection does not extend to: acts for noncommercial purposes; experimental purposes; breeding other varieties (except where essentially derived variety rules apply); and the traditional right of small farmers to save, use, exchange, share, or sell farm produce of a protected variety, subject to conditions set by the Board. The exception extends to exchange/sale of seeds among and between small farmers for reproduction and replanting on their own land, with limitations where sale is under reproduction for a commercial marketing agreement (Sec. 43).
The PVP right does not extend to acts concerning materials of the protected variety that were sold/marketed by the breeder or with his consent in the Philippines, or materials derived from them—unless further propagation is involved or export is involved that enables propagation into a country not protecting that genus/species, except for final consumption purposes (Sec. 44).
Infringement includes unauthorized acts such as selling/offering for sale, importing/exporting, sexually multiplying as a marketing step for growing, using the seed marked for unauthorized propagation prohibited, failing to use the obligatory variety denomination, and similar acts (Sec. 47). A holder may petition the proper regional trial court for infringement (Sec. 48).
For trees and vines: 25 years from the date of grant. For all other types of plants: 20 years from the date of grant, unless declared void ab initio or cancelled as provided in the Act (Sec. 33).
Any interested person may petition for compulsory license after two (2) years from grant if it is for public interest and any of the grounds exist: (1) reasonable requirements of the public for any part are not met; (2) an overseas market exists but holder does not meet it; or (3) the variety relates to or is required in production of medicine/food preparation (Sec. 57).