DEBATE UPON THE APPROVAL OF UPOV 91

05 / 08 / 2011

The approval of UPOV 91 which caused a strong discussion and debate is currently under handling procedure at the Chilean Senate.

Recently, a group of 17 senators submitted a petition before the Constitutional Court which was finally rejected. Attorneys at Estudio Villaseca law office actively participated in this rejection and filed a writ in favour of the UPOV 91 approval. According to our criteria, this will be a great contribution to our country, as it will improve the protection of the intellectual property on the agricultural sector. Intellectual property has been considered as an efficient tool to leave the underdevelopment stage, namely the so-called virtuous circle which declares that the more protection of intellectual property the greater economic development of the country.

With regard to the foregoing, it is important to review the main points that generated the debate upon its processing stage.

First, detractors argued that the approval of the UPOV 91 would impact the small farmers thus increasing the agriculture production costs. The experience has shown that the creation of new varieties is not only a benefit for the plant breeders but also to the whole distribution and commercialization chain, which groups vine nurseries, producers and consumers. The reason is so simple: thanks to the new varieties, it is possible to have a high quality product which is of utmost importance for a country like Chile where the agricultural product export reach to 55,9% . In addition, the protected varieties coexist with free varieties currently exempted of royalty payment and farmers are entitled to use the harvested product for their own exploitation and do not pay the plant breeder for such use.

On the other hand, it is stated that the UPOV 91 would pave the road for the transgenic food.

There is a great confusion in this respect, as we see a tendency to take the vegetal varieties and the transgenic food as synonyms, which is a conceptual error. In effect, the transgenic is a procedure that may be used to create new varieties and deals with modification of the natural genetic sequence of a known variety. Nevertheless, under no circumstances transgenics is the unique method to create a new variety since the commonly used mechanisms are crossbreeding and selection, an activity which limits the natural processes, thus the latter take place at a rather “scheduled time” and man has been made this from years. In fact, one of the first crops to be modified by human intervention was rice in the year 9.000 B.C. and potato in 8,000 B.C .   This is why the countries precluding the transgenic crops (Chile and Europe) allow the protection of vegetal varieties; hence, the transgenic food is ruled under other standard (Modified Vegetal organism Biosafety Project), still in the processing stage).

Another concern related to UPOV 91 approval is that same would risk our

autochthonous seed, thus placing them to the disposal of powerful transnational companies. This statement is not true: one of the requisites to protect a vegetal variety is that the variety must be new and unique. Therefore, Chile’s Agriculture & Livestock Service (SAG) shall make a proper review to confirm if the variety is effectively new and unique before granting the protection of a new variety; consequently our autochthonous seeds would be excluded. In turn, the citizens always have the possibility to oppose to the application during the filing procedure and further to its granting are entitled to request a nullity arguing lack of novelty and distinctiveness.

For more information please contact Paulina Santelices: psantelices@villaseca.cl.

Fuente: Odepa, año 2010.

Fuente: Prof. M.S., Phd. Carlos Muñoz Schick, Ingeniero Agrónomo.