By Resolution Nº 19-2022/CIN-INDECOPI dated March 1, 2022, the Commission for Inventions and New Technologies of INDECOPI – the entity in charge, among others, of ensuring the registration of plant varieties in Peru – approved a document called “Guidelines for taking samples during inspection visits for alleged infringement of plant breeders’ rights of new plant varieties and for carrying out tests or analysis of samples to determine infringement”.
It is a success that the Guidelines have been approved since, through them, certain guidelines are established so that the holders of Breeder’s Certificates (derived from the registration of plant varieties before the Directorate of Inventions and New Technologies of INDECOPI) may request inspection visits -without prior notice- on the premises (cultivation fields, seed production or nursery fields, conditioning and processing plants, collection centres) in which the illegal use of registered plant varieties is presumed, either as material for reproduction, propagation or multiplication of the variety or the harvest product or products manufactured from the harvest product.
Thus, the Guidelines are an appropriate instrument that establishes the guidelines and rules on how inspection visits must be requested and carried out in order to obtain samples that may lead to determine the existence of an infringement of breeders’ rights of new varieties.
By way of summary, the Guidelines provide as follows:
– The request for an inspection visit may be submitted by the holder of the breeder’s certificate or by the holder of a license to exploit the protected variety.
– The inspection visit shall be ordered against the person who is presumed to have carried out the infringing act on the premises, or it may be ordered that the visit be carried out even if the person conducting the inspection is a person other than the one against whom the inspection is directed, in order to ensure its results.
– The applicant must clearly identify the location of the place where the inspection visit shall take place, including, if applicable, the respective georeference.
– The samples collected shall be delivered to the applicant for the purpose of conducting the corresponding tests and/or analyses, and samples may also be delivered to the official of INIA (National Institute for Agrarian Innovation) so that said institution may keep such samples or, ex officio, conduct the relevant tests and/or analyses.
– The samples must be taken at random, from plants, parts of plants, fruits or seeds, among others.
– The samples shall be placed in wrappings (plastic or paper bags, boxes, flasks) that shall be sealed to ensure their integrity and prevent their manipulation until their arrival at the place of testing or analysis.
– The wrappings shall be packed in suitable containers (boxes or other containers that fulfill the purpose of protecting the wrappings) that shall be labelled with a code.
– Any analysis or test shall identify the origin of the samples used, in order to ensure their traceability, including data on the place of origin of the samples and the code recorded during the inspection visit.
