TOPIC : PLANT PROTECTION FOR NON-TRANSGENIC PLANTS IN INDONESIA, MALAYSIA & THAILAND

Question 1
According to our understanding is that :

a) in Malaysia, plant varieties and essentially biological processes for the production of plants are excluded from patentability;

b) in Indonesia, living creatures (except for micro-organisms, but including plants) and essentially biological processes for the production of plants are excluded from patentability, and that

c) in Thailand, naturally occurring plants are excluded from patentability.

We need confirmation from you in order to provide client with the required information. We also seeking information on the following aspects of Patent Law in Indonesia, Malaysia and Thailand :

i.) Are non transgenic plants which are not plant varieties (e.g. certain types of hybrids or plants which can not be stably reproduced) patentable, in particular in Indonesia and Thailand?

ii.) Can plant parts (in particular plant seeds) or plant cells be patented?

iii.) Which are the criteria which must be fulfilled in order that a process for the production of non-transgenic plants be considered non “essentially biological” and thus be patentable.

iv.) If patent protection cannot be obtained, is plant variety protection (PVP) a good alternative? Can PVP protection be obtained for plants which cannot be stably reproduced, in particular in Indonesia and Thailand?

Answer 1
We provide herewith our reply to your enquiry for Malaysia, Indonesia and Thailand as follows :

a) Malaysia : Plant varieties (including hybrids) and essentially biological processes are not patentable under Section 13(1) (b).

b) Indonesia : Article 7 (d) (i) excludes all living creatures (expect microorganisms from patentability and (ii) excludes the biological processes producing plants from patentability.

c) Thailand : Section 9 (1) excludes patentability of plants. Currently in Thailand, it is accepted that the Act exclude plant whether occur naturally or by human (including hybrid). However, section 9 (1) excludes product, but does not exclude the process or use.

We further confirm that Plant Variety Protection (PVP) is an alternative. Our response with regards to (PVP) as an alternative as an alternative as follows :

i.) Malaysia : According to the PVP regulations in Malaysia, a plant variety that is new, distinct, uniform and stable may be protected under PVP. According to the definition of stable in Section 14 of the Act, a plant variety is stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each particular cycle.

ii.) Indonesia : Pursuant to PVP Law No. 29 of 2000 Article 2, varieties that may be issued PVP include those plants or species that are new, distinct, uniform and stable and given a denomination. A variety is regarded as stable when its characteristics do not experience any change after repeated cultivation or when multiplied in large quantities through specific reproductions cycles do not undergo change at the end of each reproduction cycle. In view of the above, the PVP office confirms that the hybrids or plants which cannot be stably reproduced can not be protected under PVP.

iii.) Thailand : Similar to Indonesia and Malaysia, plants which cannot be stably reproduced cannot be protected under PVP. Thus in order to obtain protection, the plant must be stably reproduced, wherein the subsequent reproduction must be the same as original in the sense that the plant must show the same essence (main character, primary essences) as recited in Section 11(2) of Act.

Conclusion
The PVP legislations in Malaysia, Indonesia and Thailand requires “Distinctness, Uniformity and Stability (DUS)”. Since stability is a clear criterion, stable reproduction is a requirement. Therefore, if the plant cannot be stably reproduced, the same cannot be protected under PVP in Malaysia, Indonesia and Thailand.