The crushing knockout of the Plant Variety Protection Act by Brazilian courts: a case study

Abstract

In an earlier article of mine entitled "Notes on the collection of royalties on RR1 soybeans and other emblematic issues in intellectual property", I analysed the ruling handed down on 24 September 2014 by the 5th Civil Chamber of the Court of Justice of Rio Grande do Sul, which granted Monsanto's appeal concerning the collection of royalties from soybean growers in Rio Grande do Sul who plant transgenic soybeans, reversing the first-instance judgment of 2012. That article examined the following questions: the extinction of the economic right in the invention; the specific features of article 42 of Law 9,279/96; the elements of the negative right under article 42; the claims of pipeline patents; direct human intervention as an objective requirement for the appropriation of a technology; and protection under the plant variety statute, corpus mysticum versus corpus mechanicum. In the present article I continue the analysis of that ruling, focusing on the diffuse right under article 10 of the Plant Variety Protection Act as it applies to the case, whose basic farmers' right was entirely knocked out by the prevailing vote, which chose not to recognise the farmer's privilege.