Status of plant breeders’ rights in Mexico

By Enriqueta Molina

Ranking tenth in the world for food production, there is much opportunity in Mexico for agriculture.

In a world where change is the only constant, innovation is the key to face the challenges of agriculture including competitiveness, productivity, efficiency, value chain, business models and customer satisfaction. All these factors have to be considered, in addition to cost reduction, resource optimization and environmental sustainability.

The plant breeding sector is always searching for new and better responses to these questions but sometimes, regulations and institutional capacities are not moving at the proper speed.

Mexico is a land of opportunities for agriculture. It ranks tenth in the world for food production. Agricultural commerce in 2016 reached USD $54.8 million, with a positive balance of USD $3,275 million and rising.

With 26.9 million hectares for agriculture; two agricultural cycles and 6 million farmers, Mexico’s economy is ranked 15th place in the world (USD $1,064 billion).

Mexico has free trade agreements with 46 countries and 6 economic complementation agreements; 85 airports (3rd place in the world) and airbridges to Europe, Asia, North-America and Middle-East, among others.

Mexico is considered a megadiverse country given its great number and diversity of species. With around 25 thousand types of vascular plants and climates ranging from tropical to desert, it not only has biological richness, but cultural values linked to this, consisting of a strong heritage of traditional knowledge in relation to this huge biodiversity.

Mexico is the center of origin, diversity and domestication of many important crops, such as: maize, beans, tomato, squash, cacao, chili pepper, amaranth, avocado, papaya, cactus pear, dragon fruit, guava, vanilla, agave, sweet potato, husk tomato, chayote, cotton, physic nut, jojoba, hawthorn, mamey sapote, pecan nut, purslane, dahlia, poinsettia, marigold and a much more.

However, after 20 years since the enactment of the Federal Law of Plant Varieties, just 1626 titles have been granted, with a third of this figure going to domestic breeders, mainly to maize (19%), rose (11%) and strawberry (6%). Considering that there are more than 100 thousand registrations in force in the world according UPOV statistics, this is an area of opportunity considering the amount of national potential, research programs, as well as the comparative advantages for agricultural and food production.

PBR status

The Plant Variety Federal Law (1996) establishes the procedures for plant variety protection, giving authority to the Ministry of Agriculture, and particularly to SNICS (Mexican Service for Seed Inspection and Certification) for the management and enforcement of PBRs. The protection is for all plant genera and species, for a period of 15 to 18 years according to UPOV 1978.

From 1996 to 2016 a total of 2,314 applications of 133 varied species were filed. At the end of 2016, 1,402 registrations were in force for 97 species from 26 countries.

39% of the applications originated from US breeders, 28% from Mexico, and 18% from Netherlands. Grouping them by continent, 27% came from Europe. There were a total of 255 applicants.

The applications mainly fell under agricultural (29%) and ornamental crops (23%). There has recently been an interest in berries – production of the fruit has tripled in the last ten years.

The most important Mexican breeders are public institutions, research centers and universities, with INIFAP (Mexican Institute for Agricultural, Forest and Livestock Research) holding more than a half of the Mexican varieties and 14% of the national total. Recently, the Chapingo Autonomous University (Universidad Autónoma de Chapingo), increased its share, with 64 applications and 38 titles in force.

In the case of farmers, independent researchers and natural persons, they have registrations for different varieties of avocado, cacao, maize, barley and bougainvillea.

These numbers reflect the growing reach of national plant breeding programs, as well as trends in agricultural production.

They show an increasing number of stakeholders and an expansion of technology to enhance farmers’ capabilities to benefit in the rural sectors.

They also demonstrate the actual and potential market and the importance of technology for more competitive production i.e. plant varieties that can offer better conditions of adaptation, performance and value.

Enforcement

Twenty years after the start of the Plant Variety Protection (PVP) system in Mexico, it would be fair to review the regulations, which are according to UPOV 1978.

According to the current Federal Plant Variety Law, SNICS has the authority to verify the compliance of PBR’s regulations by its own initiative. However, the actual procedure is that the breeder shall submit a formal request providing the information to identify the presumed offender who is suspected of using the protected variety without the breeder’s authorization.

SNICS values the information provided, and issues an agreement to schedule a verification visit with the purpose of confirming the compliance of the Law and their regulations. If during this verification any of the infringements stated by Law is proved, SNICS may proceed to the seizure of goods. In practice, this doesn’t happen.

SNICS only prepares an inspection report, and the alleged offender has a period of time to provide evidence in his favor, and both parties can provide their arguments. The maximum fine is around USD$40,000. And after SNICS’s decision, it is possible to start a claim for damages.

The entire process with SNICS could take a couple of years, at least, and is not the end. An appeal could be filed with the administrative court (to the intellectual property chamber).

Therefore, one needs patience… and specialized support.

It is fundamental that authorities understand that is not just legal certainty and enforcement of breeder’s rights (of course is legitimate and a just cause), but also a matter of order, quality and fair competition.

Harmonization and international trade

UPOV has 74 members, 3/4 are part of the 1991 Act. Several Latin-American countries have regulations according to UPOV 1991: Colombia, Ecuador and Peru for instance, and the main trading partners with Mexico, such as USA, Canada and the European Union, among others.

Hence it is essential to consider the changes in agriculture, industry, economy, technology, market trends, and Mexico’s own experience with PVP after 20 years – and of course, after almost 40 years of UPOV 1978, to review not just the regulations but also the institutional capabilities to suitably respond to sector dynamism and ensure an effective enforcement system.

At the moment, two important trade agreements are under revision to modernize them, involving the European Community and NAFTA (North American Free Trade Agreement, with US and Canada). It’s predictable that plant variety protection will be one of the topics to analyze and to call for harmonization and reciprocity.

Certainly it would be desirable for Mexico to accede to UPOV 1991, to extend the periods and coverage of protection (although training and clear explanations regarding concepts such as essentially derived varieties are critical).

But it’s necessary to go beyond these basic concepts: Mexico has the commitment to provide procedures and actions against any act of infringement of PBRs, regardless of the inclusion of the UPOV 1991 provisions.

It is fundamental to strengthen enforcement measures used by authorities – by simplifying, making them more expeditious and effective with stronger processes that can really achieve the objective of preventing infringing conduct, and which appropriately and effectively punishes those who illegally use protected varieties.

Towards a new Law

Several legislative proposals have come and gone; with the most recent project including the UPOV 1991 provisions, whose measures are stronger and stricter and even criminalize the recurrence of administrative offenses to persuade eventual infringers from breaking the law.

SNICS has appeared unwilling to move forward with this, even though updating and strengthening PVP law is established as one of the goals of the national seed system. Nowadays, however, it seems that they are revisiting this issue together with close collaboration from breeders due to external pressure.

A new and stronger law would be the best-case scenario, but this will still not be enough.

To achieve the purpose of promoting innovation and to keep on building an effective system, other complementary elements are necessary. For example, institutional capacities should be improved with qualified personnel and clear and well-established procedures should be applied.

Collaboration between authorities and breeders in addition to better communication strategies should be the norm rather than just a conjecture or an eventual condition.

Divulgation campaigns and training for farmers, growers, local authorities and all interested people could build awareness and convince them regarding the benefits of protection, and to be conscious that illegal propagation implies a higher cost in fines, legal procedures and quality and phytosanitary effects as well as the loss of value and markets – cheap can be costly.

There are some voices against this reform, while others are keeping mum. Meanwhile, time moves on and technology, agriculture and commerce continue to progress.

The review and update of regulations and the protection strategies of public policies are not an option, they are an obligation.

The increasing interest and investment in agriculture requires regulations and competent authorities that meet the expectations of a competitive economy with a long-term vision.

Will Mexico finally go for it? We will see.

About the author

Enriqueta Molina
Enriqueta is an associate in the Mexico City offices of Santamarina y Steta. Her practice focuses on franchising, licensing and intellectual property. Enriqueta speaks Spanish and English. She is reachable at emolina[a]s-s.mx