Progress for Colombian plant breeders as take-over ban is lifted

A ban preventing the Colombia’s ICA from taking over DUS reports has been lifted.

The Council of State of Colombia has officially revoked a preliminary injunction preventing the Colombian Agricultural Institute (ICA) from taking over Distinctness, Uniformity and Stability (DUS) reports, which means that the ICA now has the green light to proceed with taking over DUS reports from abroad during the plant breeders’ rights (PBR) application process in Colombia.

Background

In 2016, a grower filed a lawsuit questioning the authority of the ICA in taking over DUS reports carried out outside Colombia and, more precisely, its competence in establishing the mechanisms for such take-over procedures. The plaintiff requested a preliminary injunction and the provisional suspension of the ICA’s powers, which was partially upheld by the Council.

Seeking to actively protect its members’ rights, the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), with the support of 10 members, took part in the process as an interested third-party with the assistance of Colombian IP law firm OlarteMoure, a long-term member of CIOPORA. In May 2017, CIOPORA filed an amicus brief in the main procedure as well as the appeal.

The decision of the appeal has just been announced, whereby the preliminary injunction has been revoked and the suspension lifted. As a consequence, neither the competence of the ICA to take-over DUS reports carried out abroad nor its authority to establish the necessary mechanisms will be suspended throughout the duration of the main trial. 

The court affirmed that Decree 533, which establishes the competence of ICA to take-over DUS reports, does not violate the provision of the Andean Pact Decision 345, which grants the same powers to the Andean Subregional Committee for the Protection of Plant Varieties.

The main reasons for the decision by the court, which reflect the ones presented by CIOPORA, are as follows:

  1. The provisions of the Andean Pact do not imply that member states have no competence to regulate this issue; in fact, member states may complement said regulations through internal norms.
  2. The national authority has the competence to establish rules and mechanisms for take-over procedures, which in the case of Colombia, is the ICA.
  3. The abovementioned Committee no longer exists due to a restructuring process within the Andean Community in 2013, and prior to becoming defunct, no guidelines take-over procedures were issued by the Committee.
  4. Regardless of the above points, the Committee was a consultative body and its decisions could only have been deemed as mere recommendations for member states.

The main trial is currently at the Initial Hearing stage. Considering the circumstances of the case thus far, a final decision which hopefully results in a victory for plant breeders in Colombia will be announced soon.