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Protection of Breeders’ rights and interests-The current situation and challenges of the Plant Variety and Plant Seed Act in Taiwan.

According to news reports, Taiwanese pear farmer Liu Shenquan successfully bred and obtained the “variety right” for the “Formosa sweet pear”. Known for its juiciness and long shelf life, it is favored by domestic consumers in Taiwan. Over the years, Mr. Liu has promoted and guided farmers in Taiwan’s lowland area to grow the pear, leading more than 500 farmers obtaining the legal license from Mr. Liu to cultivate it.  

However, under the popularity of the “Formosa Sweet Pear”, unauthorized cultivation has emerged. Therefore, Mr. Liu filed a lawsuit against a pear farmer named Wang in Taichung, Taiwan, who was involved in propagating and selling unauthorized pear seedlings. Recently, the Intellectual Property Court ruled in favor of Mr. Liu in a second instance decision. The case has established a key precedent for the integration of domestic agricultural science and technology and the legal system in Taiwan.

This article will take Liu Shenquan’s “Formosa sweet pear” case as an example to introduce the Plant Variety and Plant Seed Act in Taiwan, including legal basis, protection of breeders’ rights and interests, the practical challenges faced and the potential direction for future developments. 

Background of the Plant Variety and Plant Seed Act in Taiwan

The Plant Variety and Plant Seed Act is enacted to protect rights in plant varieties, facilitate improvements in plant varieties, and implement a plant seed administration system to promote farmers’ interests and benefit on agricultural development. With advances in agricultural and technology, the improvement of traditional crop varieties has become a key meaning to improve the yield and quality of agricultural products. The development of these varieties usually requires a long-term experimentation and breeding. Once a successful variety is bred, its economic value justifies the necessity of protection.  

According to the Plant Seed Act, agricultural seedlings are akin to patents for industrial products. Breeders can apply for exclusive variety rights and enjoy exclusive rights during the protection period. These rights include producing, propagating, promoting, selling, importing, exporting and holding the seedling or harvested materials derived from them. Without authorization from the variety rights holder, others are prohibited from producing, selling, or using the protected variety. Mr. Liu’s “Formosa sweet pear” is a typical case of Taiwanese breeders successfully using this law to protect his own rights and interests. 

The key points of the Plant Variety and Plant Seed Act in Taiwan

1. The application and grant of variety rights

According to the Plant Seed Act, breeders can apply for variety rights through the competent authority (formerly the Council of Agriculture, now restructured as the Ministry of Agriculture). Breeders require to provide complete information regarding varieties while applying for variety rights, which includes its characteristics, breeding process, and genetic characteristics, etc. The application undergoes review and examination before approval and publication.  

In addition, per Article 5 and 8 of the Plant Seed Act, eligibility for variety application and rights includes: 
a.Breeders or their assignees/ successor:
A breeder refers to an individual who has bred or discovered and developed a variety. 

b.Employment scenarios:
For varieties bred or discovered and developed by an employee during the course of employment, unless otherwise specified in an agreement, the right to apply for a variety and the variety right belong to the employer.

c.Commissioned breeding:
Where a fund provider appoints another party to engage in the work of breeding a variety, the agreement between the parties shall govern with respect to the ownership of the right to apply for a variety and a variety right, or such rights shall be vested in the breeder in the absence of such agreement. However, the fund provider shall be entitled to exploit such variety.

In accordance with the aforesaid regulation, where the right to apply for a variety and a variety right are vested in the employer or the fund provider, the breeder concerned shall be entitled to a right to have his/her name shown as such.

In the case of “Formosa sweet pear”, the said variety was bred by Mr. Liu through many years; he himself is the breeder. Therefore, Mr. Liu, the breeder of “Formosa Sweet Pear,” applied for variety rights after years of breeding effort. in the former Council of Agriculture granted the rights in 2018, providing him with a legal foundation to combat unauthorized use.  

2. The scope of protection for the variety rights

In accordance with the provision of Article 24 of the Plant Seed Act: 
The holder of a variety right shall have the exclusive right to preclude others from engaging, without the consent of the holder, in the following acts with respect to plant seeds to which the holder has the variety right: 

1. Production or reproduction (multiplication), 
2. Conditioning for the purpose of propagation, 
3. Offering for sale, 
4. Selling or otherwise marketing 
5. Importing or exporting, or 
6. Holding for any of the purposes in the preceding 5 Subparagraphs. 

The holder of a variety right shall have the exclusive right to preclude others from engaging, without the consent of the holder, in the acts as set forth in the Subparagraphs of the preceding Paragraph with respect to the harvested material obtained through use of plant seeds of such variety. 

The holder of a variety right shall have the exclusive right to preclude others from engaging, without the consent of the holder of the variety right, in the acts as set forth in the Subparagraphs of Paragraph 1 with respect to processed products obtained directly through the use of the harvested material under the preceding Paragraph, provided that this provision shall apply only to plant species published by the competent authority. 

The exercise of the rights as referred to in the preceding two Paragraphs shall be limited to where the holder of the variety right has had no reasonable opportunity to exercise his or her rights with respect to the acts in the Subparagraphs of Paragraph 1.    

The protection of variety rights covers all propagation materials of the variety, including seeds, seedlings, and cuttings, etc. Once the variety rights are effective, no one can propagate illegally or sale plant seeds of such a variety without the breeder’s consent. This also means if someone uses the breed for commercial activities without permission, the breeder has the right to pursue legal responsibility.     

In Mr Liu’s case, the pear farmer Mr. Wang propagated and sold “Formosa sweet pear” seedlings in large quantities without authorization, which not only violated Mr. Liu’s variety rights, but also violated the Plant Variety and Plant Seed Act. The Intellectual Property Court ruled that the pear farmer Mr. Wang must compensate Mr. Liu NTD900,000.00 (equivalent to USD28,500.00) and pay 5% annual interest from the lawsuit’s commencement, a ruling that serves as a significant morale booster for breeders.

Challenges of the Plant Variety and Plant Seed Act in Taiwan 

1. The prevalence of infringement

In the news report, Mr. Liu mentioned that 4 out of 5 sweet pear farmers in Taiwan grow the “Formosa Sweet Pear” without authorization. Such widespread infringement reflects a significant challenge. Many farmers, driven by profit, bypass licensing fees and use unauthorized seedlings, undermining the rights of breeders and the agricultural innovation ecosystem. 

2. Difficulties in law enforcement

While the Plant Seed Act provides legal protection, enforcement remains challenging. Firstly, disputes often involve complex stakeholder interests, complicating legal process. Additionally, collecting evidence of infringement is labor-intensive and costly, posing a burden on small and medium-sized farmers.   

Although Mr. Liu’s eventual victory is encouraging, he admitted in the news report that fighting for the rights of breeders was not easy and required a lengthy litigation process. He suggested that the government should strengthen legal support for farmers and establish a stronger awareness of the variety rights to safeguard Taiwan’s agricultural future.

The future direction of development 

1. Strengthening legal education and publicity

The government should promote legal education for farmers and stakeholders to highlight the importance of the variety rights. This would protect the interests of the breeders and encourage agricultural innovation. While farmers realize the importance of the Plant Seed Act, they will be more willing to obey the relevant regulations, thereby fostering compliance and sustainable industry growth. 

2. Providing grester resource support

Legal proceedings can be time-consuming and costly for breeders, especially small-scale ones. The government can consider establishing a dedicated legal aid fund to provide breeders with legal support and resources to help them safeguard their legal rights and interests. Meanwhile, increased government funding for agricultural innovation and technical support could help farmers develop more competitive varieties.

3. Enhancing International collaboration

Following the advancement of globalization, agriculture in Taiwan does not only face the domestic market but requires it to be integrated with the international market. Thus, Taiwan should strengthen the cooperation and communication with the international community, learn from other countries’ successful experience in protecting variety rights, and expand the global presence of its agricultural products. 

Conclusion

The Plant Variety and Plant Seed Act plays a pivotal role in protecting agricultural innovation and the rights and interests of breeders, contributing to Taiwan’s agricultural development and enhancing the competitiveness of Taiwanese agricultural products. Liu Sehenquan’s “Formosa sweet pear” case illustrates how legal protection enables breeders to defend their rights and interests effectively and turn scientific and technological achievements into economic benefits. However, challenges such as widespread infringement, enforcement difficulties, and international competition persist.

Looking ahead, the government should prioritize legal advocacy, resource allocation, and international cooperation to strengthen the competitiveness of Taiwanese agriculture in the global market. Only driven by legal protection and market innovation can prosper Taiwanese agriculture consistently and secure a foothold in global markets.