September 22 2008
Until 1996 Mexico had no plant variety protection system. Plant patent applications were filed with the Patent Office, but technical examination was not carried out because plant varieties are not patentable under the Patent Law. However, since the enactment of the Plant Variety Law in October 1996, breeders, agents and the government have been developing the National Seed Inspection and Certification System (NSICS) which oversees the filing and granting of breeders' rights applications.
In order for an applicant to obtain such protection in Mexico, the plant variety must comply with conditions of distinctness, uniformity and stability, as well as the novelty requirement. When filing the application, the breeder should propose a denomination for the plant variety. The term of protection is 18 years for perennial species (eg, trees, vines and other fruiting plants, and ornamental plants) and their graft carriers, and 15 years for other species. Fungi and algae are not considered plant varieties under the law.
Breeders' rights are granted in respect of the production, sale, commercialization, import and export of the protected variety, as well as the propagating material or harvested material thereof, including the use of the plant variety to create a hybrid for commercial purposes.
The application must be accompanied by a technical report describing the phenotypic characteristics of the variety known to the breeder. Preparing an adequate technical report is vital, as a distinctness, uniformity and stability examination is carried out to compare the documentation provided by the applicant in view of the prior art. If the breeder has obtained the results of such an examination by an equivalent authority abroad that formally collaborates with the NSCIS, such as the European Union's Community Plant Variety Office, the processing time for the corresponding Mexican application may be reduced if the applicant asks the NSCIS to take the examination results into account. If all necessary documentation is filed at the start, the process typically takes about one year.
The NSICS's records show that 805 plant variety applications have been filed in Mexico,(1) of which 37.6% were filed by US applicants and 33.5% by Mexican entities. Dutch, French and German applicants accounted for 11.9%, 8.4% and 3.5% of the applications, respectively. The NSICS has registered 184 applications for maize and 170 applications for roses - these high numbers are explained by the fact that maize originates in Mexico and by the country's wide range of climates for floriculture.
In accordance to the 1994 Act of the International Union for the Protection of New Varieties of Plants, there is a project to reform the law that centres on proposals to extend the term for breeders' rights from 18 years to 25 years for perennial species and from 15 years to 20 years for other species. In addition, the changes would grant protection to essentially derived varieties - a change in the colour of a variety of fruit may be considered an example of essential derivation. If the amendments are approved, breeders will benefit from improved protection terms and enforcement.
For over a decade Mexico has been nurturing a well-organized system for the protection of plant varieties which, like the Mexican climate, encourages the prosperous development of agriculture. The NSICS's role is to promote this relatively new system to foreign and Mexican breeders.
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