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Infractions of Plant Breeders’ Rights in Peru

A plant breeder’s certificate gives the holder the right to prevent that third parties make without their consent the production, reproduction, multiplication or propagation, preparation for such purposes, offering for sale, sale, export, import, and possession for these purposes, among others, of a protected variety.
According to statistics from INDECOPI until 2012, 177 applications of Certificate of Plant Variety Breeders have been presented; from which 61 belong to Peruvian applicants and 53 to American (U.S.) applicants. Of these applications, 38 Plant Breeder certificates have been granted (which are in force) and 51 applications are being processed. In the last years, applications have increased significantly.

The case best known of infringement to breeder’s right in Peru is the variety of Marigold called “APV No 1 Bella Flor” protected by registration N° 00001 issued in favor of the company Agrícola Barranca SA. In this case, by Resolution N° 318-2007/DIN the offender was punished with a fine of 15 UITs (approximately US$ 20,000.00) for production for commercial purposes of the protected variety, without authorization.

The question then arises: If a Plant Breeder, who already has an exclusive right, sees his right infringed or potentially infringed, what concrete actions he can take and what sanctions would apply to the suspected offender?

Administrative sanctions
First, the holder must submit his infringement complaint to INDECOPI within 2 years after he had knowledge of the infraction, or 5 years since the offender occurred for last time. Overdue those periods, the infringement action prescribes. According to Law N° 28126 (16.12.2006) Law that sanctions infractions of the rights of plant breeders, sanctions may include warnings and fines, without detriment to necessary precautionary measures. Fines can be up to 100 UIT (Approximately $ 14,000.00) and up to 300 UIT in case of infringement of resolution terminating the administrative procedure. The infringement of precautionary measure may be penalized with a fine of up to 400 UIT.

Jurisdictional sanctions
The holder may also present a criminal complaint before the Judiciary. According the Criminal Code, who stores, manufactures, uses with commercial purposes, offers, distributes, sells, imports or exports, in whole or in part a plant variety registered in the country, as well as its reproduction material, propagation or multiplication, may be penalized with: custodial sentence of 2 to 5 years; 60 to 365 days of fine; and disqualification.

While enforcement regime must be more known among holders and farmers, is mainly convenient that the regime of Plant Variety Protection is spread among farmers or sectors that sell or make this kind of innovation, but that have less access to information, as many times the ignorance is what leads to the infraction.

Carmen Sánchez-Puelles