JAPAN?S NEW PLANT VARIETY PROTECTION SYSTEM
by Judge Tomoyuki Tobisawa
Following an unanimous vote on the same bill in the House of Representatives (the Lower House) on May 8, the House of Councilors (the Upper House) also unanimously passed the Plant Variety Protection Law on May 22 to amend entirely the existing Seeds and Seedlings Law. The Plant Variety Protection Law (hereinafter referred as the new law) was published on May 29; it will come into effect this November or December.
1. The UPOV Convention
The Union Internationale pour la Protection des Obtentions Vegetales (UPOV) Convention was adopted on December 2, 1961, by Western nations to protect new plant varieties outside the framework of the Paris Convention. It was revised at Geneva on November 10, 1972, October 23, 1978, and March 19, 1991, respectively. Japan became a UPOV member in 1982 by acceding to the 1978 Act. The Seeds and Seedlings Law was based on the 1978 Act.
The 1991 amendment (the 1991 Act) strengthened the breeder?s rights because the progress of biotechnology and the expansion of international trade of plants have made it easier and faster to infringe the breeder?s rights. It entered into force on April 24, 1998 (article 37), one month after Bulgaria and Russia, which were not UPOV members, acceded to the 1991 Act on March 24, in addition to Denmark, Israel, Netherlands, and Sweden, which are already members of the UPOV Convention. Many nations, other than the United States, Germany, Australia, etc., have already made laws in accordance with the 1991 Act. The Japanese government requested the Diet to ratify the 1991 Act, and the Diet acted accordingly on May 13. The Japanese government will deposit the instrument of accession to the 1991 Act in this late fall.
2. Major Changes between the Existing Law and the New Law
(1) Expansion of the Scope of Protection of Plant Genera and Species
Under the existing law, 467 kinds of plants are protected, but the new law protects all plant genera and species. (Cf. art. 3(1) of the 1991 Act)
(2) Change in the Novelty Requirement
A variety is not new if it has been sold by or with the consent of the breeder in Japan, either nonprivately or commercially before filing an application under the current law. In addition, the breeder?s right is never granted. The new law, however, deems the variety to be still new if the breeder files an application within one year after he/she made the above-mentioned sale in Japan. (Cf. art. 6(1) of the 1991 Act)
(3) Establishment of the Provisional Protection System
The new law provides that after the grant of the breeder?s right, the breeder who has, between the time of the publication of the application and the grant of the breeder?s right, warned by presenting the documents stating the contents of the variety can request anyone who has exploited (e.g. production, sale, etc.) the variety to pay compensation equivalent to an amount that may be received for the exploitation where the breeder is a right holder. (Cf. art.13 of the 1991 Act )
(4) Increase in the Number of Acts That Require the Authorization of the Breeder
Under the present law, the acts which require the breeder?s authorization are limited to selling, offering for sale, etc. the propagating material of the protected variety either nonprivately or commercially. According to the new law, however, not only producing, conditioning, selling, offering for sale, exporting, importing, and stocking for the above-mentioned purposes with respect to the propagating material either nonprivately or commercially, but also producing, selling, leasing, offering for sale or lease, exporting, importing, and stocking for the aforementioned purposes with respect to the harvested material either nonprivately or commercially, which results from the unauthorized use of the propagating material of the protected variety, require the breeder?s authorization. What I should point out here is that the right holder can exercise his/her breeder?s right in relation to the harvested material only when he/she has had no reasonable opportunity to exercise his/her right in relation to the propagating material. This is often called "cascading principle." (Cf. art. 14(1)(2) of the 1991 Act)
(5) Adoption of the Notion of Essentially Derived Variety (EDV)
The new law provides that the right holder of an initial variety can exercise his or her right against the exploitation of its EDV. An EDV is a variety that is clearly distinguishable from the initial variety, while retaining the expression of the essential characteristics of the said variety. If Variety B, for example, is derived from Variety A and the only difference in characteristic between them is the color of the flower, Variety B is probably an EDV of Variety A. (Note: If an initial variety itself is an EDV and it is a protected variety, the right to the variety does not cover its EDV.) (Cf. art. 14(5) of the 1991 Act)
(6) New Exception to the Breeder?s Right the so-called Farmer?s Exemption
Since the production of the propagating material or the harvested material is outside the scope of the right of breeders under the present law, farmers can use the harvested material as propagating material in order to obtain new harvested material without the authorization of the right holder. (Note: As for production, the right of breeders under the present law covers only the production of the propagating material for the purpose of sale.) The production of the propagating material or the harvested material under the "cascading principle" is, however, within the scope of the breeder?s right under the new law. The new law permits, as an exception to the breeder?s right, farmers to use, for propagating purposes and on their own holdings, the product of harvest which they have obtained by planting, on their own holdings, the protected variety in order to protect, to a certain degree, the farmers? interests, based on the longstanding practice. Where the parties agree not to use the harvested material of the protected variety for propagating purposes, or where the protected variety belongs to the plants designated by detailed regulations, the new law does not allow the aforementioned exception. (Cf. art. 15(2) of 1991 Act)
(7) Extension of Period of the Breeder?s Right
The period of the breeder?s right will be extended from 15 years (18 years for trees, etc.) to 20 years (25 years for trees, etc.) under the new law. (Note: The period is computed from the date of being granted the breeder?s right, but the first day is not included in the period.)(Cf. art. 19 of 1991 Act)
Judge Tomoyuki Tobisawa (Temporarily Assigned to the Department of Agriculture)
Â© 1998 University of Washington, School of Law, CASRIP.