The International Union for the Protection of New Varieties of Plants (UPOV) establishes that breeders of plant varieties are: i) persons who have created or discovered and developed a plant variety, ii) persons who are employers of the aforementioned persons or who have commissioned their work, or iii) the successors in title of the first or second mentioned persons, as the case may be.
Plant varieties are defined by this same authority as a set of plants that is distinguished by different morphological, physiological, cytological, or chemical characteristics, being possible its reproduction over several generations.
According to the UPOV Convention, the requirements for the granting of the exclusive right of exploitation are: 1) the reproductive or vegetative propagation material or a harvest product of the variety has not been sold or delivered to third parties in another way by the breeder, 2) it is clearly distinguishable from any other variety whose existence is notoriously known, 3) it is sufficiently uniform in its relevant characteristics, and 4) its relevant characteristics remain unchanged after successive reproductions or multiplications.
In Colombia, the Colombian Agricultural Institute (ICA) is the entity responsible for reviewing compliance with the four criteria of novelty, distinctness, uniformity, and stability set forth in the previous paragraph, the other legal requirements, and issuing the certificate by which the right over the plant variety is granted, according to Article 4 Decree 533 of 1994.
The breeder is entitled to an exclusive right of exploitation over the plant variety for twenty-five years, in the case of vines, forest trees, fruit trees (including their rootstocks), and for twenty years for other species, counted from the date of its granting, in accordance with Decree 2687 of 2002.
In accordance with the above, Decision 345 of the Cartagena Agreement, which determines the scope of the breeder's rights, establishes that in addition to the exclusive right of exploitation, breeders have the right to prohibit, without their consent, the carrying out of various acts on the means of reproduction of the variety, including: production, reproduction, multiplication, or propagation; preparation; offering for sale; sale, or any other act that implies its introduction into the market. It is also clarified that the same right applies to varieties that are not clearly distinguishable from the protected variety, or whose production requires the repeated use of the protected variety.
In conclusion, the Colombian regime for the protection of plant varieties is based on Decision 345 of the Cartagena Agreement, which in turn develops the postulates of the UPOV Convention. These instruments recognize the protection of plant varieties within intellectual property through a sui generis mechanism different from the patent, in which the breeder is recognized the right of exclusive exploitation over the variety subject to protection and, therefore, the right to prevent, even resorting to national jurisdiction, acts contrary to their right, excepting certain non-harmful acts lacking commercial purposes.