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CIOPORA says Ecuador unnecessarily raising plant breeders' rights costs

By means of Resolution No 006-2012-CD-IEPI (1) the Instituto Ecuatoriano de la Propiedad Intelectual (Ecuadorian Institute for Intellectual Property) has recently announced a dramatic increase of the fees for the acquisition and the maintenance of Plant Breeders' Rights (and Patents).

The Resolution has been published on 23 October and thus has entered into force.

According to the Resolution the maintenance fees shall start at US-$$ 1,428 in the first year and culminate in US-$ 24,9935 in the twentieth year. For the entire duration of the PBR (20 years) the overall fees for the acquisition and the maintenance of a Plant Breeders Right shall amount to US$ 1770,000.

By giving effect to the Resolution No 006-2012-CD-IEPI (1) Ecuador, according to CIOPORA (International Community of breeders of asexually reproduced ornamental and fruit trees) violates the TRIPS Agreement, particularly Article 62 (4) in combination with 441 (2) of the Agreement.

Ecuador has been a member of the WTO since 1996 and as such obliged to comply with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement).

Article 62 (4) in combination with 41 (2) of the TRIPS Agreement prescribes that procedures concerning the acquisition or maintenance of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.

The main purpose of Article 62 of the TRIPS Agreement is to ensure that the application of national legislation on acquisition and maintenance of IP rights does not unjustifiably impair the access to and exercise of such rights.

Article 62 (4) establishes important principles that apply to all pre- and post-grant procedures concerning acquisition, maintenance, revocation, opposition and cancellation. All such procedures must be fair and equitable and not unnecessarily complicated or costly.

The fees for PBRR acquisition and maintenance for up to 20 years, as fixed in Resolution No 006-2012-CD-IEPI (1), amount to US$ 170,000. Such extremely high level of the fees for the acquisition and maintenance of PBR creates an unnecessary costly in-built feature in the PBR legislation of Ecuador, which makes it commercially impossible for breeders to exercise their rights. This establishes a violation of Article 62 (4) in combination with 41 (2) of the TRIPS Agreement.

Although the TRIPS Agreement allows some flexibility for the application of the Agreement by the members, it does not allow much flexibility for the members to interpret the fair and equitable requirement. That follows from the use of the term "shall" in the respective provisions of the TRIPS Agreement and the binding obligation of the members. The procedures shall be fair and equitable and shall not be unnecessarily complicated or costly. Fixing the overall fees for PBR for the entire duration of protection to an amount of ca. US-$ 170,000 goes far beyond the flexibility of Ecuador to govern its PBR system.

For more information:
Anna Kaehne
CIOPORA
Tel: +49 40 555 63 702
Fax: +49 40 555 63 703
Anna.Kaehne@ciopora.org
www.ciopora.org

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