FAQ Series: Plant Variety Protection in Brazil (Chapter II)

By Silvia Boechat and Ana Carolina Corrêa

Can you protect a plant you found growing in the wild? What about a gene, or a breeding technique? 

Welcome back to our IP FAQ series! In Chapter I, we covered the basics of plant variety protection. Now let’s look at what can be protected, what protection actually gives you, and where its limits lie. 

What are the requirements to protect a plant variety? 

Under the UPOV Convention, protection is granted only to varieties that are new, distinct, uniform and stable, and that have a suitable denomination (name). In Brazil, Law No. 9,456/1997 follows the same logic. In practice:

• New: the variety must not have been commercialized beyond certain time limits before filing (see the next question). 

• Distinct: the variety must be clearly distinguishable from other varieties known at the time of filing. 

• Uniform: the plants must be sufficiently alike in their relevant characteristics. This does not mean absolute uniformity, and the level required depends on how the species reproduces. 

• Stable: the relevant characteristics must remain unchanged after repeated propagation, or at the end of each propagation cycle. 

Distinctness, uniformity and stability (“DUS”) are verified through technical examination, known as DUS testing, usually in a growing trial. 

What does “new” mean for plant variety? 

Novelty here is not the same as in patent law. A variety is not required to be unknown to the world. Instead, it must not have been commercially exploited for longer than the periods allowed by law. Under Brazilian law, the plant variety must not have been offered for sale in Brazil for more than 12 months before filing. In addition, subject to that Brazilian marketing period, it must not have been offered for sale in other countries, with the breeder’s consent, for more than six years in the case of trees and vines, or more than four years for all other species, as provided by Article 3, V, of Law No. 9,456/1997. 

Can I protect a plant I discovered? 

Only the breeder can obtain protection. Under UPOV, the breeder is the person who bred, or discovered and developed, a variety, as well as their employer or successor in title where national law provides. The key word is “developed”: a mere find does not give rights. Someone who simply discovers an existing variety and propagates it unchanged is not entitled to Plant Variety Protection (PVP). 

Can I protect a trait, a gene or a breeding method via PVP? 

No. PVP covers the variety, meaning a plant grouping, and not an isolated trait (such as disease resistance or flower color), a substance, or a plant breeding technology. A DNA profile also cannot be the basis for protection, since a variety must be distinguishable by physically expressed characteristics. Molecular data can only play a supporting role in DUS examination. Genes and techniques may be protectable through other rights, such as patents. In Brazil, the Industrial Property Law (Law No. 9,279/1996) has its own exclusions. For example, it excludes natural living beings and biological material found in nature, even if isolated, and it limits the patentability of living organisms to transgenic microorganisms. 

What does the holder get, and are there exceptions?

Protection grants its holder the right to commercial reproduction in Brazilian territory. During the protection term, third parties are prohibited from producing the plant variety’s propagating material for commercial purposes, offering it for sale, or marketing it, without the holder’s authorization. The holder may also grant authorization subject to conditions and limitations, such as through licensing. 

Protection is not unlimited. In Brazil, Law No. 9,456/1997 provides that the rights of the holder are not infringed by someone who: 

• reserves and plants seed for their own use; 

• uses or sells the harvested product as food or raw material (but not for reproductive purposes); 

• uses the cultivar as a source of variation in breeding or scientific research (the “breeder’s exemption”); or 

• is a small rural producer who multiplies seed for donation or exchange with other small producers, within public or NGO-supported programs. 

The breeder’s exemption is a keystone of the UPOV system. It keeps protected varieties available for further breeding, which supports plant diversity. 

Interested in learning more? 

Assessing whether your variety meets the legal requirements, and how to prepare the application, is a technical and strategic exercise. If you are interested in protecting or managing plant variety rights in Brazil, feel free to reach us at cobo@coboip.com. We will be glad to assist you.