In a new development to the Intellectual Property system in the
United Arab Emirates, a new federal law in respect of the
protection of plant varieties and plant breeders' rights has
recently been issued. Law No. (17) of 2009 entered into force on
January 14th, 2010.
The protection of plant varieties and plant breeders' rights is
one of the UAE's obligations under different international
treaties. The UAE is a member of the World Trade Organization, and
thus required to comply with or give effect to agreements including
the Trade Related Aspects of Intellectual Property Rights Agreement
(TRIPS). The UAE is also a member to some other international
treaties relevant to the rights of plant breeders, namely, The
Convention on Biological Diversity (CBD) 1992 and The International
Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA)
2001.
According to Article 27 (3/b) of TRIPS, member states must provide
protection for plant varieties through the patent system, a sui
generis system, or a combination of both. The new law suggests a
sui generis system for plant breeders' rights.
According to the new law, a breeder can apply for the grant of
protection for a plant variety. A breeder is defined as any person
who bred, discovered or developed a new plant variety, or the legal
successor of such person.
In order to qualify for protection under the new law, a plant
variety must be new, distinct, uniform and stable. In addition, a
plant variety should not be harmful to health or environment and
should not be contrary to the Islamic Sharia'h or any
applicable law in the UAE.
A plant variety is new if it has not been commercialised for more
than one year in the UAE or four years outside the UAE. A plant
variety is distinct if it differs from all other known plant
varieties at the date of the application. A plant variety is
uniform if the plant characteristics are consistent from plant to
plant within the variety. A plant variety is stable if the plant
characteristics remain the same from generation to generation, or
after a cycle of reproduction.
The breeder must give the variety an acceptable
"denomination," which becomes its generic name and must
be used by anyone who sells, markets or uses the variety.
An application for grant of protection should be submitted to the
Registrar at Ministry of Environment and Water. The application
will go through an examination procedure in order to establish that
the plant variety is new, distinct, uniform and stable, in addition
to the examination of the denomination. The examination is made
under the supervision of the Registrar in one of the following
methods: (i) to rely on growth and germination examinations, and
any other essential exams or tests, made by a technical authority
inside or outside the country, if such tests or exams are carried
out in environmental conditions consistent with the environmental
conditions in the country; or (ii) the Registrar or any other
authority elected by the Registrar may carry out the tests and
exams at the breeder's expense. If the application satisfies
the examination requirements, the Registrar shall grant the plant
breeders' right and publish it in the Official Gazette.
According to the new law the grantee should have the right to
prevent others from carrying out any of the following activities
without prior consent: acts of production, reproduction and
propagation; conditioning for the purpose of propagation; offering
for sale, selling or any other marketing activities; exportation;
importation or stocking of any of the aforementioned
purposes.
However, the law provides exceptions from the breeders' rights
that are related to scientific experiments, activities done for the
purpose of deriving new varieties and the use by farmers in their
own holdings for the purpose of the propagation of the harvest they
gained through growing the plant variety for non commercial
use.
Moreover, the new law provides for compulsory licenses to exploit
the protected plant variety without the consent of the plant
breeder for public interest and without prejudice to the plant
breeder right of compensation. The law provides for another type of
licensing which is the exceptional license that could be granted in
exceptional emergency cases.
The protection duration stipulated by the law is 20 years for crops
and 25 years for vines and trees. The protection period starts from
the grant decision date.
The Plant Varieties law provides penalties for the infringement of
the rights of the plant breeder that consists of either
imprisonment for a minimum of two months and a fine of not less
than AED 10,000 and not more than AED 250,000. The fine is in
addition to confiscation and destruction of the material related to
the infringement.
It is worth mentioning that although the UAE is not a member of the
International Convention for the Protection of New Varieties of
Plants (UPOV), the new law has been drafted to be consistent with
the UPOV.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.