Export of Seeds Protected by Plant Breeder’s Rights: Despite Countries Enhancing Regulations, Foreign Certificates Provide More Comprehensive ProtectionAugust 12, 2021

Shine Muscat grapes are a premium grape variety originally developed in Japan. They are particularly desirable because they are large, seedless, and have a high sugar content. Depending on location, the grapes can cost around 6,000 yen per pound (approximately $54 USD per pound), nearly 30 times the price of average green grapes in the U.S. The Shine Muscat variety is the result of more than 15 years of testing and selection by breeders.

The variety’s popularity in Asia has led to copycat growers in countries such as South Korea, China, and others. Growers outside of Japan typically obtain exported Shine Muscat seeds and grow the grapes in a quantity sufficient to sell to consumers. The copycat grapes are priced much lower than the originals, typically costing only a third or less of the Japanese original.

Grapes are not the only agricultural product exported from Japan without authorization. In April 2021, the Japanese government enacted its revised Plant Variety Protection and Seed Act—a law governing seeds and saplings from agricultural products such as fruits and vegetables. The Japanese Ministry of Agriculture, Forestry, and Fisheries released a list of over 2,500 varieties subject to the law. In addition to Shine Muscat grapes, the law also covers other famous varieties such as Amao strawberries, Beniharuka sweet potatoes, Yumepirika rice, Shinano Hope lettuce, Akikansen pears, and others.

The law allows seed developers to designate to which countries or territories a registered seed variety may be exported. For example, if a seed developer of a given variety designates South Korea, exporting seeds of that variety to any other country would violate the amended Act. The prohibition against unauthorized export stems from the international Act of the International Union for the Protection of New Varieties of Plants (UPOV). UPOV member countries agree to enact some version of the Act (it was passed in 1961 then amended in 1972, 1978, and 1991) which protects plant breeder’s rights in newly-developed or cultivated varieties.

The United States’ Plant Variety Protection Act (PVPA) provides similar protections. 7 U.S.C. § 2541(a)(2) of the PVPA states that importing a protected variety into the United States or exporting the variety from the United States without permission constitutes infringement. For both U.S. and Japanese law, when the entity selling copycat agricultural products or seeds is located in the originating country, plant breeder’s rights can be readily enforced. However, it is substantially more challenging to enforce breeder’s rights when the exporter is a single person or small entity, and the business actually selling the agricultural product to consumers is located abroad. In such a case, variety owners may be able to stop the single person or small entity from exporting seeds, but damages and the ability to stop foreign growers is limited.

Consequently, even though countries such as Japan are enhancing their plant breeder’s rights laws to prohibit export of protected varieties, ultimately owners of highly valuable varieties should pursue plant breeder’s rights certificates in foreign countries where unauthorized use is anticipated or likely. Some countries, like the U.S. even allow plant variety protection certificates together with patents and trade secret protection for the same variety, creating a layered protection for valuable varieties. Having international protection in strategic countries allows variety owners to not only prevent export from the originating country, but also enforce their breeder’s rights directly against bad actors in other countries.

Sarah M.D. Luth is an Intellectual Property Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website , or contact Sarah directly via email .

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