Patenting selection achievements

When we hear a word patent, we most often imagine the patent for some device, method, composition. However, the modern legislation provides for the defence of the exclusive rights, including in the field of agriculture, in particular, in the form of a patent for a selection achievement.

In accordance with Article 1412 of the Civil Code of the Russian Federation, the subject matters of the intellectual rights to selection achievements are the plant varieties and the animal breeds registered in the State Register of the Protected Selection Achievements, if these results of the intellectual activity comply with the established requirements to such selection achievements. A plant variety is a group of plants that, regardless of the protectability, is determined by the features characterizing this genotype or a combination of genotypes and it is distinctive from other groups of plants of the same botanical taxon by one or more features. The variety may be represented by one or more plants, a part or several parts of a plant, provided that such part or such parts may be used to reproduce the whole plants of the variety. The protected categories of the plant variety are a clone, a line, a first filial hybrid, a population. An animal breed is a group of animals that, regardless of the protectability, possesses the genetically determined biological and morphological properties and features, some of which being specific to this group and distinguish it from other groups of animals. The breed can be represented by a female or male individual or a breeding material that is being intended for the reproduction of the breed by animals (breeding animals), their gametes or zygotes (embryos). The protected categories of the animal breeds are a type, line crossing.

Both for patenting the technical solutions and for obtaining a patent for a selection achievement, it is necessary for it to comply with the protectability criteria. The patent is granted for the selection achievement complying with the protectability criteria and relating to the botanical and zoological genera and species, which list is established by the Federal Executive Authority performing the normative and legal regulation in the field of agriculture. In Russia, such authority is the Ministry of Agriculture. The protectability criteria of the selection achievement are novelty, distinctiveness, homogeneity, stability. The plant variety and the animal breed are considered to be new, if, at the date of filing an application for the grant of a patent, the seeds or the breeding material of the given selection achievement have not been sold or otherwise transferred by the breeder, his successor or with their consent to other persons for the use of the selection achievement:

1) on the territory of the Russian Federation, earlier than one year prior to the indicated date;

2) on the territory of another state, earlier than four years or, in the case of the grape varieties, woody ornamental, woody fruit crops and woody forest species, earlier than six years prior to the indicated date. The selection achievement must be distinctive obviously from any other well-known selection achievement available by the date of filing the application for the grant of a patent. A well-known selection achievement is the selection achievement, the information of which is in official catalogues or in an informational stock, or which has an accurate description in one of the publications. Filing an application for the grant of a patent also makes the selection achievement to be well-known since the date of filing the application, provided that the patent has been granted for this selection achievement.  The plants of the same variety, the animals of the same breed should be sufficiently homogeneous by their features taking into account some individual deviations, which may take place in connection with the peculiarities of the reproduction. The selection achievement is considered to be stable, if its main features remain unchanged after the repeated reproduction or in the case of a special cycle of the reproduction – at the end of each cycle of the reproduction. To obtain a patent, it is necessary for the claimed solution to undergo an examination. Any interested person may, within six months since the date of the publication of the information on the application for the grant of a patent, file with the Federal Executive Authority for Selection Achievements a petition for carrying out the examination of the claimed selection achievement for novelty. In Russia, the Federal Executive Authority for the Selection Achievements is the State Commission of the Russian Federation for Testing and Protecting the Selection Achievements

If the selection achievement does not comply with the criterion of novelty, a decision to refuse to grant a patent for the selection achievement is made. The tests of the selection achievement for distinctiveness, homogeneity and stability are carried out according to the methods and within the period established by the Federal Executive Authority carrying out the normative and legal regulation in the field of agriculture. The applicant is obliged to provide for the tests the necessary amount of the seeds, the breeding material to the address and within the period, which are indicated by the Federal Executive Authority for the Selection Achievements.

The exclusive right to the selection achievement is recognized and protected subject to the state registration of the selection achievement in the State Register of the Protected Selection Achievements, in accordance with which the Federal Executive Authority for the Selection Achievements grants a patent for the selection achievement to the applicant. The patent for the selection achievement certifies a priority of the selection achievement, the authorship and the exclusive right to the selection achievement. The patent holder owns the exclusive right to the use of the selection achievement, and he can dispose of the exclusive right to the selection achievement. The exclusive right to the selection achievement shall be extended also to a plant material, i.e. the plant or its part used for the purposes other than the reproduction of the variety, to the market animals, i.e. to the animals used for the purposes different from the purposes of the reproduction of the breed, which have been obtained accordingly from the seeds or from the breeding animals, if such seeds or breeding animals have been introduced into the civil circulation without a permission of the patent holder. The use of the selection achievement is considered to be carrying out the following actions with the seeds and the breeding material of the selection achievement:

1) producing and reproducing;

2) bringing to the sowing conditions for a subsequent reproduction;

3) offering for sale;

4) selling and other methods of the introduction into the civil circulation;

5) exporting from the territory of the Russian Federation;

6) importing into the territory of the Russian Federation;

7) storing for the purposes indicated in subparagraphs 1-6.

The exclusive right to the selection achievement shall also be extended to the seeds and the breeding material, which inherit substantially the features of other protected (original) plant variety or animal breed, if these protected variety or breed are not themselves the selection achievements inheriting substantially the features of other selection achievements; are not distinctive obviously from the protected plant variety or animal breed; require a repeated use of the protected plant variety for producing seeds.

It should also be noted that, both the patent for a technical solution, and the patent for a selection achievement, by virtue of the exclusive right concept has a certain period of validity. The period of validity of the exclusive right to the selection achievement and the patent certifying this right shall be calculated since the date of the state registration of the selection achievement in the State Register of the Protected Selection Achievements and shall be thirty years. For the grape varieties, woody ornamental, fruit crops and woody forest species, including their rootstocks, the period of the exclusive right and the patent certifying this right is thirty-five years. After the termination of the exclusive right, the selection achievement transfers into the public domain. The selection achievement that has transferred into the public domain may be freely used by any person without anyone's consent or permission and without the payment of a fee for the use.

Drawing an analogy between the exclusive right to the technical solution, the exclusive right to the selective achievement may be transferred to another person on the basis of an alienation agreement. A license on granting the right to use the selection achievement may also be issued.