Limits to the protection rights bearing upon plant varieties - the plant variety in Brazil is charmed against spirit possession, the evil eye, patents and other spells

Abstract

The research investigates the limits of the protection rights bearing upon plant varieties in the Brazilian legal order, on the basis of a lawsuit brought by the Rural Union of Passo Fundo-RS and others against Monsanto do Brasil Ltda. and Monsanto Technology LLC. It reconstructs the judgment in action No. 001/1.09.0106915-2, which proceeded before the 15th Civil Court of Porto Alegre, and the decision in Civil Appeal No. 70049447253 of the 5th Civil Chamber of the Court of Justice of Rio Grande do Sul, setting them against the 1978 UPOV Convention, Law No. 9,456/97 and Article 5, XXIX, of the Federal Constitution. It addresses four questions: the admissibility of double protection of the same plant variety by plant breeder's right and by patent; the possibility of a patent right directly or indirectly obstructing the free use of plants and their parts; the compatibility of a decision to the contrary with the rules for solving antinomies; and its conformity with constitutional provisions and with the mens legislatoris of Law No. 9,456/97. It holds that the statute forbids double protection and prevents any other intellectual property right from being invoked to obstruct the free use of plants and their parts.