The term "plant breeders' rights" refers to the branch of the law that protects IP rights related to innovations on plant varieties, such as new varieties with increased resistance to pests or weather, or with enhanced nutritional capacity.
Plant breeders' rights have similarities with patent rights, and also share with the latter the aim of encouraging investment in research and development. But despite the similarities with patent rights, plant varieties are not patentable in the Argentine legal framework. Article six of the Argentine Patent Act No. 24,481 establishes that "all kinds of live material and pre-existing substances in nature" are not considered inventions, thus excluding the possibility of patenting them. Furthermore, in many cases, obtaining new plant varieties does not mean, strictly speaking, the creation of an invention, but rather the result of relatively gradual and mechanical stages or steps which do not comply with the inventive step requirement.
The TRIPs agreement specifically refers to this matter in Article 27.3 (b), which establishes that: "Members may also exclude from patentability: (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof."
At the international level, the tendency has been to protect these new plant varieties by means of a separate legal system. In Argentina, plant varieties are protected by the Seed Act N° 20,247, which was passed in 1973, and by UPOV 78. Since 1994, Argentina has been member of the International Union for the Protection of New Varieties of Plants, also known as UPOV. The Seed Act and Regulatory Decree No. 2183/91 (which adapts the Seed Act to the requirements of the above mentioned UPOV Agreement of 1978, approved in Argentina by Act No. 24,376) establish the protection of rights on plant varieties.
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