Plant Variety Protection in the Philippines

Policy, purpose, and guiding principles

The State recognizes that an effective intellectual property system and development of new plant varieties are vital to achieving food security (Section 2).
The State protects and secures breeders’ exclusive rights over new plant varieties for the periods provided in the Act (Section 2).
Intellectual property in agriculture is declared to have a socioeconomic function.
The State shall promote diffusion of technology and information for national development and progress for the common good (Section 2).
The State shall recognize the indispensable role of the private sector and provide incentives for needed investments in development of new plant varieties (Section 2).
The State shall promote adaptation of technology and knowledge from all sources for national benefit (Section 2).
The State shall protect exclusive rights of scientists and other gifted citizens over intellectual property and creations (Section 2).
Protection of agricultural intellectual property shall be supportive of and not inconsistent with the State’s obligation to maintain a healthful ecology in accord with the rhythm and harmony of nature (Section 2).

Key definitions established by law

“Applicant” means the breeder who applies for the grant of a Certificate of Plant Variety Protection (Section 3).
“Board” means the National Plant Variety Protection Board created by the Act; it also refers to the National Seed Industry Council during the transition period until the Board is organized and operating (Section 3).
“Breeder” includes: the person who bred, or discovered and developed anew the variety; or the employer/commissioning party; or successors-in-interest; or the holder of the Certificate (Section 3).
“Certificate of Plant Variety Protection” means the document issued by the Board under the Act (Section 3).
“Harvested material” means any part of a plant with potential economic value or any product made directly therefrom, in proper cases (Section 3).
“Plant” includes terrestrial and aquatic flora (Section 3).
“Propagating material” means any part of the plant that can be used to reproduce the protected variety (Section 3).
“Plant Variety Protection (PVP)” means the rights of breeders over their new plant variety as defined in the Act (Section 3).
“Regulations” mean rules and regulations promulgated by the Board to implement the Act (Section 3).
“Variety” means a plant grouping within a single botanical tax on of the lowest known rank, defined by expression of characteristics from genotype(s), distinguished by at least one characteristic, and considered as a unit for suitability for propagation unchanged; represented by seed, transplants, plants, tubers, tissue culture plantlets, and other forms (Section 3).
“Person” includes natural and juridical persons (Section 3).
“Commission” means engaging services to develop new plant varieties in exchange for monetary or any material consideration (Section 3).
“Holder” means a person granted a Certificate or his successors-in-interest (Section 3).
“Figures as Denomination,” “Obligation to Use Denomination,” and other denomination rules operate under the Act’s denomination provisions, with “variety denomination” being the designated generic description (Sections 9–16).

What qualifies for protection

The Board grants a Certificate of Plant Variety Protection for varieties that are New, Distinct, Uniform, and Stable (Section 4).
Newness exists when propagating or harvested material has not been sold, offered for sale, or otherwise disposed of to others, by or with the consent of the breeder for exploitation purposes (Section 5).
Newness is also met if exploitation/disposition limits are not exceeded, including these Philippine and foreign time periods (Section 5):
- In the Philippines for more than one (1) year before the filing date; or
- In other countries/territories where filing occurred for more than four (4) years, or for vines/trees more than six (6) years, before the filing date.
A special “grace” treatment provides that the novelty requirement does not apply where the variety was sold/placed into commerce for purposes of exploitation for five (5) years before the approval of the Act; PVP application must be filed within one (1) year from approval of the Act (Section 5).
Distinctness exists when the variety is clearly distinguishable from any commonly known variety (Section 6).
Distinctness is treated as public knowledge when an application for PVP or official register entry is filed; the effect holds provided the application leads to grant/entry (Section 6).
Uniformity exists when the variety is sufficiently uniform in its relevant characteristics, subject to expected variation from propagation features (Section 7).
Stability exists when relevant characteristics remain unchanged after repeated propagation or at the end of each propagation cycle (Section 8).

Variety denomination and required use

A protected variety must be designated by a denomination that is its generic description (Section 9).
The denomination must be different from any denomination designating an existing variety of the same plant species or closely related species (Section 9).
The use of a denomination is not granted if the denomination is already registered to another breeder or is used by a third party in relation to sale/offer for sale of a particular variety prior to the filing date or priority date of the application (Section 10).
If two or more breeders/applicants apply for the same denomination, the breeder/applicant with the earliest filing date or priority date has the right to register it to the exclusion of the others (Section 10).
The denomination must enable identification of the variety (Section 11).
The denomination may not consist solely of figures except when it is an established practice for designating such a variety (Section 11).
No denomination is accepted if it is liable to mislead or cause confusion concerning the characteristic value or identity of the variety or breeder (Section 12).
If the denomination does not satisfy the requirements, registration is refused and the breeder must propose another denomination within a prescribed period; the approved denomination is registered together with the grant of the breeder’s right (Section 13).
If an application filed in the Philippines corresponds to a previously filed foreign application on the same subject matter, the same denomination must be used; if it does not conform, the applicant must submit a new denomination (Section 14).
Any person offering for sale or marketing propagating material of a protected variety in the Philippines must use the denomination of that variety even after expiration of the breeder’s right, except when rules on prior rights apply (Section 15).
When a protected variety is offered for sale or marketed, it may be associated with a trademark, trade name, or similar indication with a registered denomination; the denomination must remain easily recognizable (Section 16).
No Certificate shall be issued without naming the breeder(s) unless the right is protested in writing within one (1) year (Section 45).

Applicants, who owns the right

A breeder who developed the variety may apply and obtain a Certificate upon compliance with the Act (Section 17).
If two or more persons contribute to development, all must be named in the Certificate and are entitled to rights in proportion to contribution unless they agreed otherwise in writing (Section 18).
If an employee develops a variety in the course of regular employment duty, plant variety protection belongs to the employer unless there is a written stipulation to the contrary (Section 19).
Under the first-to-file rule, if two or more persons develop separately and independently, the Certificate belongs to the person who files first (Section 20).
If two or more persons file for the same variety, the right is granted to the one with the earliest filing date or priority date (Section 20).
A priority claim from a foreign filing is recognized when the local application expressly claims priority, is filed within twelve (12) months from earliest foreign application, and the applicant submits authenticated copies (and other evidence/samples) within six (6) months from local application (Section 21).
For this Act, a person is considered a national of a foreign country if: citizen under its laws; natural person residing therein; or legal entity whose office is registered in that foreign country (Section 22).
Local applications for Certificates based on foreign grants are issued upon payment of dues and compliance when the foreign jurisdiction affords similar privileges to Filipino citizens through treaty/convention/law (Section 23).
The Act applies to nationals of foreign countries that are members of intergovernmental organizations or parties to multilateral agreements or conventions concerning plant variety intellectual property protection (Section 23).

Application examination, publication, opposition, issuance

Applications must be filed in the manner and conditions prescribed by the regulations and must include these required contents (Section 24):
- Name of applicant/breeder;
- Address in the Philippines;
- Name and address of resident agent in the Philippines;
- Description of the variety and particulars of its characteristics;
- Variety denomination;
- Samples of propagating materials (subject of application);
- Other particular required by regulations.
The Board issues rules on the contents of the description and order of presentation (Section 26).
The applicant must furnish information on applications filed in other countries and all pertinent documents relating to them (Section 27).
If priority is successfully claimed under the Act, the applicant has two (2) years from the priority date to comply with the Board’s information/document requirements (Section 27).
The Board may carry out necessary tests, cause tests, or consider results of other tests or trials already done; it may require the applicant to furnish required information/documents/materials within a period prescribed by regulations (Section 28).
The Board accords a filing date using at least the enumerated minimum items required in Section 24 (Section 29).
After the Board accords a filing date, it must publish the application within sixty (60) days at the applicant’s expense in the Plant Variety Gazette (Section 30).
Prior to publication, the application and all related documents are not made available to the public without the applicant’s written consent (Section 30).
After publication, any person may inspect application documents in a manner prescribed by the Board (Section 30).
Any person who believes the applicant is not entitled may file an opposition within the period prescribed by the Board from the publication date and before issuance (Section 31).
Opposition may be grounded on:
- The opponent being entitled to the breeder’s right as against the applicant; or
- The variety being not registrable under the Act (Section 31).
If opposition is based on Plant Variety Protection conditions, it is considered together with examination of the application (Section 31).
After testing and examination and/or consideration of supporting materials and literature, the Board issues a Certificate of Plant Variety Protection; a notice of issuance is published in the manner prescribed by regulations at the expense of the holder (Section 32).

Term, annual fees, and rejection procedure

Protection term is twenty-five (25) years for trees and vines and twenty (20) years for all other types, from the date of grant, unless declared void ab initio or cancelled otherwise under Sections 61 and 62 (Section 33).
Annual fees are required to maintain validity; annual fees are paid starting from the fourth anniversary of issuance and every year thereafter within the first three (3) months of those years (Section 34).
The holder may pay annual fees in advance for a maximum of twenty (20) years (Section 34).
Failure to pay annual fees within the prescribed period causes the Certificate to expire and cease to have force and effect (Section 34).
A notice of cancellation is published in the Plant Variety Gazette one (1) year after the term of protection expired (Section 34).
Before publication, a holder who failed to pay may request reinstatement by settling unpaid accounts including surcharges to be determined by the Board (Section 34).
Upon rejection of an application, the Board immediately informs the applicant of the grounds and, when applicable, identifies and provides the documents used as basis for rejection (Section 35).
The applicant may seek reconsideration or traverse findings within two (2) months from receipt of the rejection notice; the Board may reverse its initial finding or issue final rejection within the same period (Section 35).
The decision is final except for anomalous circumstances involving the Board, in which case appeal lies to the proper court (Section 35).

Rights of Certificate holders

Holders may authorize, for propagating materials, the following acts: production or reproduction; conditioning for purpose of propagation; offering for sale; selling or other marketing; exporting; importing; and stocking for any purpose mentioned above (Section 36).
The holder’s authorization may be subject to conditions and limitations (Section 37).
Rights also extend to harvested materials (except Sections 43 and 44) which may be the entire plant or other parts if production resulted directly from unauthorized use of protected propagating materials, unless the holder had a reasonable opportunity to exercise rights regarding the propagating materials (Section 38).
Protection covers specified related varieties and situations (Section 39):
- Varieties essentially derived from the protected variety, where the protected variety is not itself essentially derived;
- Varieties not clearly distinct from the protected variety;
- Varieties whose production requires repeated use of the protected variety.
A variety is “essentially derived” when it is predominantly derived from the initial variety (or from a variety predominantly derived from it), retains expression of essential characteristics from the initial variety genotype(s), is clearly distinguishable from the initial variety, and conforms to the initial variety’s essential characteristics except for differences resulting from derivation (Section 40).
Essentially derived varieties may be developed through processes including selection of natural or induced mutant, selection of somoclonal variant, selection of variant individual, backcrossing, transformation by genetic engineering, and the law defines genetic engineering as introduction of genes by laboratory techniques (Section 41).
Provisional protection: an applicant is entitled to equitable remuneration from persons who, during the period between publication of the application and grant, carried out acts that once the certificate is granted require holder authorization; the applicant must initiate legal action within two (2) years from the date of grant (Section 42).
The Certificate does not extend to specified acts (Section 43):
- Acts for noncommercial purposes;
- Acts for experimental purposes;
- Acts for breeding other varieties, except where Sections 39 and 40 apply;
- The traditional right of small farmers to save, use, exchange, share, or sell farm produce of a protected variety, except that a sale for the purpose of reproduction under a commercial marketing agreement is excluded; the Board determines conditions for this exception considering the nature of the plant cultivated; the exception also covers exchange and sale of seeds among and between small farmers, provided seeds are exchanged/sold for reproduction and replanting on their own land.
Exhaustion: the Certificate does not extend to acts concerning any material of the protected variety (or varieties under Sections 39 and 40) that has been sold or otherwise marketed by the breeder or with consent in the Philippines, or material derived from that material, unless (Section 44):
- The acts involve further propagation of the variety in question; or
- The acts involve export enabling propagation into a country that does not protect the plant genus or species, except when exported material is for final consumption purposes.
The breeder’s right is treated as a property right and transmission is governed by the law on Property (Section 46).

Infringement: prohibited acts and civil remedies

Infringement occurs when a person without entitlement performs any of the following acts, unless otherwise provided in the Act (Section 47):
- Sells the novel variety, or offers/exposes it for sale, delivers it, ships it, consigns it, exchanges it, or solicits offers to buy, or any transfer of title or possession of it;
- Imports the novel variety into, or exports it from, the Philippines;
- Sexually multiplies the novel variety as a step in marketing (for growing purposes) the variety;
- Uses the novel variety in producing (distinguished from developing) a hybrid or different variety;
- Uses seed marked “unauthorized propagation prohibited” or “unauthorized seed multiplication prohibited” or progeny thereof to propagate the novel variety;
- Dispenses the novel variety to another in a form capable of propagation without notice as to being a protected variety under which it was received;
- Fails to use a variety denomination the use of which is obligatory under Section 15;
- Performs the foregoing acts even when the novel variety is multiplied other than sexually, except in pursuance of a valid Philippine plant patent;
- Instigates or actively induces performance of any foregoing acts.
The holder may sue for infringement and may avail of all relief available in proceedings involving infringements of other proprietary rights (Section 47).
Infringement actions are filed by petition with the proper regional trial court (Section 48).
Certificates are presumed valid; the burden of proving invalidity rests on the party assailing the Certificate (Section 49).
Valid defenses include (Section 50):
- Non-infringement;
- The plant variety does not possess, at the time of application, the criterion of novelty or distinctness;
- The alleged infringement was performed under a right adverse to it prior to the notice of infringement;
- Other defenses available under the Act.
No damages are awarded unless there is actual or constructive notice made upon the alleged infringer (Section 51).
Courts may award actual, moral, exemplary damages, and attorney’s fees according to a proven amount including a reasonable royalty for use of the protected variety (Section 52).
Courts may enjoin infringers from further performing any act of infringement (Section 53).
On petition by the complainant, courts may order confiscation of infringing materials and: distribute to charitable organizations; sell and provide proceeds to research organizations; or return to the petitioner for further scientific use (Section 54).
Recovery of damages is barred when the cause of action has reached more than six (6) years from commission of the alleged infringement (Section 55).

Criminal penalties

Any person who violates rights of the holder under the Act may suffer imprisonment of not less than three (3) years but not more than six (6) years and/or a fine of up to three (3) times the profit derived by virtue of the infringement, but in no case less than PHP 100,000.00 (Section 56).

Compulsory licensing framework

Any interested person may petition for compulsory license with the Board any time after two (2) years from grant of the Certificate when it is for public interest and any of these grounds exists (Section 57):
- Reasonable requirements of the public for any part of the variety are not met;
- There is an overseas market for sale of any part of the variety and that market is not met by the holder;
- The plant variety developed relates to or is required in production of medicine and/or any food preparation.
Upon proof and petition, the Board may issue decisions allowing commercial production and distribution; requiring the holder to ensure availability of propagating materials; requiring petitioner to pay the holder with license fees in the form of reasonable royalties; and providing other additional remedies consistent with circumstances (Section 58).
A compulsory license continues until the grounds are terminated as determined by the Board motu proprio or upon petition and Board resolution (Section 59).
The Board must provide in rules and regulations the manner and procedure for granting compulsory licenses (Section 60).

Nullity and cancellation of PVP

Nullity (void ab initio) applies when (Section 61):
- The grant was essentially based on information/documents furnished by the applicant where conditions of distinctness, uniformity, stability, and newness were not complied with at the time of grant; or
- The Certificate was granted to a person not entitled, unless transferred to the person entitled.
Declaration of nullity has the effect that the Certificate is treated as if not issued (Section 61).
Cancellation applies when (Section 62):
- The breeder does not provide required information/documents/materials for verifying maintenance of the variety;
- The breeder fails to pay required fees to keep rights in force or provides false information in application;
- The breeder does not propose within the time/period under regulations another suitable denomination if denomination is cancelled after grant;
- Conditions of uniformity and stability could not be maintained even though present at issuance;
- The breeder or holder relinquishes rights through a declaration in a public instrument filed with the registrar.
Petitions to cancel are originally under Board jurisdiction (Section 63).
Board decisions may be appealed to the Court of Appeals within fifteen (15) days from notice of Board’s final decision (Section 63).
The right to cancel may be instituted at any time within the term of protection (Section 64).
A notice of filing of a petition to cancel and the final order decision on it must be published in the Plant Variety Gazette at the petitioner’s expense (Section 65).

National Plant Variety Protection Board; Registrar

The Act creates a National Plant Variety Protection Board composed of the following or their duly designated representatives (Section 66):
- Secretary of the Department of Agriculture, chairman;
- Secretary of the Department of Science and Technology, co-chairman;
- Director-General of the Intellectual Property Office, vice chairman;
- Director of the Bureau of Plant Industry;
- Director of the Institute of Plant Breeding of the University of the Philippines Los Baños;
- President of the Philippine Seed Industry Association;
- A representative from a federation of small farmers’ organizations nominated by the Secretary of Agriculture;
- A representative from scientific community nominated by the National Academy of Science and Technology;
- The Registrar, ex officio.
Board members/representatives must be Filipino citizens with good moral character and must not have been convicted of a crime involving moral turpitude (Section 66).
The Board performs functions including:
- Promulgating policy guidelines for effective implementation (Section 66);
- Having original and exclusive appellate jurisdiction over all acts of the Registrar (Section 66);
- Having original jurisdiction over petitions for compulsory licensing, nullity, and cancellation (Section 66);
- Institutionalizing a database of existing plant varieties within one (1) year from effectivity (Section 66);
- Calling resource persons to provide inputs relevant to Board tasks (Section 66);
- Organizing the Registrar as it sees fit and approving capital expenditure and contracts of experts (Section 66);
- Performing all other functions required for implementation (Section 66).
The Board must, within six (6) months from effectivity, prescribe rules and regulations necessary for implementing its functions or reorganize and create units under its control and supervision (Section 67).
The Board prescribes a schedule of fees charged to applicants/breeders in application and maintenance (Section 68).
The Board may enter agreements with governmental or non-governmental institutions (domestic and foreign) for verifying facts germane to its functions, and shall designate state colleges and universities, bona fide research institutions, or appropriate non-governmental research centers as testing centers (Section 69).
The Act creates a PVP Fund administered by the Board; all fees, fines, and charges collected under the Act are deposited in the Fund, and the Board may use and disburse it without need of approval by any government agency subject only to existing accounting and auditing rules for defraying operational costs (Section 70).
The Act creates a Gene Trust Fund administered by the Board for accredited gene bank organizations/institutions; up to twenty percent (20%) of fees and charges are used for the trust fund; the trust fund may accept donations from national/international institutions and organizations and individuals interested in strengthening genetic conservation (Section 71).
The Board maintains a publication called the Plant Variety Gazette for all publication requirements and other purposes; it must distribute free copies in the major dialect understood by the locality to small farmer groups and indigenous communities (Section 73).
The Act establishes a National Plant Variety Protection Registrar and Associate Registrar under Board control and supervision; both are appointed by the President upon Board recommendation and have a term of six (6) years, except the first Registrar serves seven (7) years (Section 74).
The Registrar must be a Filipino citizen with good moral character, proven track record in plant science and/or extensive executive experience and capability (Section 74).
The Registrar has functions including original and exclusive jurisdiction to receive, process, examine applications and in meritorious cases issue and sign certificates in the name of the Board; maintain systematic records of Certificates and transactions; implement Board rules; maintain and update a database; maintain a library of scientific and other works and periodicals; maintain samples of propagating materials; and perform other functions as prescribed by the Board (Section 74).

Transitory arrangements, coordination, and appropriations

During the transition before full Board organization, the National Seed Industry Council created by Republic Act No. 7308 performs Board functions until full organization but not later than three (3) years from effectivity of the Act (Section 76).
Within the same period, the Director of the Bureau of Plant Industry is the Acting Registrar and the Assistant Director acts as Associate Registrar (Section 76).
The Secretary of the Department of Agriculture shall immediately include in its program and issue rules and regulations to implement the Act, with funding included in the annual General Appropriations Act (Section 77).
The Board is authorized to coordinate with other institutions through agreements and through designation of testing centers for verifying distinctness, uniformity, and stability (Section 69).

Miscellaneous provisions: relation to other laws; separability; repeal

Interpretation of the Act does not negate the effectivity and application of:
- Republic Act No. 8371 (Indigenous People’s Rights Act);
- Republic Act No. 9147 (Wildlife Resources Conservation and Protection Act);
- Presidential Decree No. 1151 (Philippine Environmental Policy);
- Executive Order No. 430 and Administrative Order No. 8, Series of 2002 of the Department of Agriculture and the rules and regulations on