“Monsanto Roundup Ready Soya”
摘要
The purpose of the appeal is to determine whether soya producers may, without violation of the defendants’ intellectual property rights, freely reserve the product of Roundup Ready transgenic soya (RR soya) for replanting in their fields, sell the production of this crop as food or raw material and, with regard to small producers only, donate or exchange the reserved seeds with other small farmers. In accordance with international guidelines and the obligation imposed by Art. 5(XXIX) of Brazil’s 1988 Constitution, Brazil’s Industrial Property Law (IPL) authorises the patenting of transgenic microorganisms in order to grant the inventor temporary privileges for use thereof. Patents and plant variety rights are different types of intellectual property rights that aim to protect different intangible assets. The statutes that govern each of them are not mutually incompatible. Nor does one prevail over the other, as they are different and complementary legal regimes, and their systems of law do not contain any contradictory provisions for qualifying the same conduct. The marked differences between the regime of the IPL and that of the Plant Variety Protection Law (PVPL) include the protected subject matter, the scope of protection, the exceptions and limitations applicable to the holders of the respective rights, the requirements for the granting of legal protection, the body responsible for examining and issuing the title, and the duration of the privilege. The scope of protection applicable to the technology developed by the respondents is not to be confused with what is protected by the PVPL: in this case, the patents do not protect the plant variety itself, but rather the process of insertion and the actual gene inserted by the respondents into Roundup Ready (RR) soya seeds. Plant variety protection covers the propagative material of an entire plant, while the patent system specifically protects an inventive process or genetically modified material. Although the IPL provides for the principle of exhaustion as a general rule applicable to patented products, it is important to highlight that the last line of Art. 43(VI) IPL expressly states that there will be no exhaustion where such products are used for the “commercial multiplication or propagation of the living material in question”. Clearly, the legislator chose to make it clear that, when it comes to patents related to living matter, exhaustion only applies to the circulation of those products that can be classified as non-reproducible living matter. This does not fit with the object of the appellants’ claim. Therefore, the thesis established for the purposes of Art. 947 of Brazil’s 2015 Code of Civil Procedure (CCP/15) is as follows: the limitations on intellectual property rights laid down in Art. 10 of Law No. 9.456/97 – applicable only to holders of plant variety protection certificates – are not enforceable against the holders of product and/or process patents related to transgenic technology present in the reproductive material of plant varieties.
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