One of the main demand from rising world’s population is to keep food security that might be supported by increasing of corp. Many researchers believe that we need to double global crop production by 2050. Despite of active development of recombinant DNA technology and recent success in genome editing technology, conventional breeding and selection still plays important role in agriculture sector, since keeping genetic diversity is crucial for adapting plants and animals to constantly changing environments. Creation of a new plant variety requires a lot of time and money as well as considerable knowledge and effort; many tests must be carried out for obtaining plants with the desirable features.

Russia and Ukraine are both well known for their many years of growing traditions and rich natural resources. According to State Statistic Services the planted area of agricultural crops under the harvest 2019 is 79559 thsd.ha[1] in Russia and 27841.7 thsd.ha[2] in Ukraine. Both countries are the members of the International Union for the Protection of New Varieties of Plants (UPOV) and provide a legal protection for plant varieties to compensate for breeders’ and investors’ expenses. National companies and institutions as well as foreign international companies (e.g. Rijk Zwaan Zaadteelt en Zaadhandel B.V, RAGT 2n, Syngenta Seeds B.V. in Ukraine and BASF, Syngenta AG, Monsanto in Russia) register their rights. Hundreds of applications are filed annually, Russian and Ukrainian State registers each contains more than ten thousand of different plant varieties (wheat, sunflower, maize, peas, soya, beet, and many others).

Recently Ukrainian president Volodymyr Zelensky has initiated changes in the agrarian sector and Ukrainian parliament approved the first reading of a draft law on land market on November 13, 2019. In the opinion of the World Bank, the land reform will promote economic growth, improve living standards of Ukrainian people and enhance the agricultural potential of the country. Naturally, the reform will change significantly the agricultural sector and issues of protection of intellectual property rights related to plant varieties become extremely actual.

Plant varieties in Ukraine can be protected according Ukrainian law “On protection of rights to plant varieties”. Under the Civil Code of the Russian Federation, plant varieties can be protected as selection achievements and the protection can be provided only for species and genera included in the special list approved by the Ministry of Agriculture of the Russian Federation. The legislation of each of the two countries provides for registration of personal non-proprietary rights to plant varieties, exclusive proprietary rights to plant varieties, and rights to distribute the plant variety. The various embodiments of a variety, to which rights may be acquired shall be a clone, line, first-generation hybrid and population. A variety shall be considered suitable for the acquisition of intellectual property rights when the variety is novel, distinctive, uniform and stable (according to the features denoted by a certain genotype or combination of genotypes).

In Russia, examination for distinctness, uniformity and stability of plant variety is carried out by the institutions authorized by the Commission for Testing and Protection of Selection Achievements (Gossortcommission), and for some species and genera by the breeders (the applicants) on the basis of the national test guidelines. The additional criteria is to be checked with respect to plant varieties is their “economic usefulness”, and only those plant varieties, which meet this requirement, are permitted for use in Russia. Gossortcomission assesses the economic usefulness based either on trials, or on expert evaluation, depending on species and genera of the plant. The plant varieties possessing the economic usefulness are included into a special register - the State Register for Selection Achievements Permitted For Use. This register may include plant varieties that are not protected.

Ukrainian law provides for technical examination of plant varieties (DUS-testing). In order to import seeds or plants for technical examination applicants should pay attention to Customs requirements as Ukrainian Institute for Plant Variety Examination issues a document which supports the importation, i.e. the application should be filed and examination of formalities should be completed. Therefore, the registration of each variety requires planning a strategy in order to provide the importation of seeds or plants timely to start growing. It is also important to note that growing stations for technical examination are located in different regions of Ukraine and results of examination of the same variety may differ significantly. In some cases technical examination applicants is not required but it should be confirmed before filing.

Russian and Ukrainian patent system stipulates that plant varieties and biological methods for obtaining them are unpatentable subject matters. In some cases, patent protection (also known as “plant patents”) is available for plants as such. On Ukrainian practice patent protection for plants, obtained by essentially biological processes in some cases is available (also known as “plant patents”) provided that claims include a nucleotide sequence, an amino acid sequence and other characteristics necessary for identification by technological means (by genetical/biochemical or other complex methods) and provided that these characteristics is not related to belonging of obtained plants to the limited groups as cultivated plants within a species and may extend to the entire species and/or higher taxonomic groups of plants. Usually during examination of such patent applications applicants should file strong arguments in response to preliminary refusals. Some cases are successfully considered at the Board of Appeal after final refusal.

Traditionally, development of genetic engineering methods allows a patent protection of engineered plants as inventions both in Russia and Ukraine, provided that all patentability requirements of are fulfilled and the claims include sufficient set of technical features for their identification, and the features or traits acquired by the transgenic plant. Some specific issues also connected with use of plant varieties that were obtained with the use of genetic constructs. Amendments to the Law of Ukraine “On the State Biosafety System for the Creation, Testing, Transportation and Use of Genetically Modified Organisms (GMO)” in case of adoption by the Ukrainian parliament prescribe creation of examination body, which will issue the permission for filing of the application of the new genetic construct into the State register. Registration of the construct should further allow obtaining GMO varieties that will enjoy the protection as a plant variety obtained by traditional selection. Currently the central executive authorities maintain State registers of GMOs available on official websites media. In 2016, growing and production of GMO were banned on the Russian Territory. Currently, the State Register for Selection Achievements Permitted For Use does not include any genetically modified plant varieties, and under the Federal Law of the Russian Federation No. 149- FZ “On seed growing” importing and growing seeds of genetically modified plants are prohibited in Russia (except for examination and scientific research purposes).

Under the legislation of both countries, a breeder has a non-property right for denomination of a new plant variety. However, the fact of registration of the new plant variety and entry of its name into State Registers does not lead to acquisition of exclusive rights for the denomination. The registered variety denomination may be protected as a trademark. The rules for the denomination in both jurisdictions correspond to article 13 of the UPOV Convention. Trademark legislation of both countries does not contain direct regulations regarding plant varieties names that is why before filing of the trademark application the applicant should take into account general provisions of law (regarding absolute grounds for refusal, rights of prior use), results of trademark search and practical aspects. Moreover, as a trademark may be renewed every 10 years it should not become vulnerable for cancellation because of turning to a generic name.

Intellectual property objects such as patents, plant varieties and trademarks may be included into the Ukrainian Customs Register in order to control the importation or exportation of goods. The Russian legislation makes no provision for possibility of including of patents or plant varieties into Russian Customs Register, but allows including trademarks into the Register.

Significant reform of Ukrainian legislation on land market creation declared by Ukrainian president, harmonization of Ukrainian law with the law of European Union which was started after adoption of the Association Agreement between the Ukraine and the European Union and future starting of a Hight Court on Intellectual property open new page in protection of intellectual property rights related to agricultural production in Ukraine. International sanctions against Russia has led to significant drop of inflow of foreign investments in agricultural sector, however, one must admit Russia’s potential in organic farming. We cannot discount the still existing possibility of expansion of the cultivated area land using some of idle land on the Russian territory. Many national and foreign companies have already protected their rights in Russia and Ukraine. Complex protection of intellectual property rights to plants with use of all the above mentioned mechanisms is very powerful instrument for doing and developing agricultural business in both countries.

Maksym Bocharov

Oksana Karpenko

[1] Cereals and leguminous crops occupied 46.8 million ha, including 28.1 million ha of wheat: winter - 15.8 million ha, spring - 12, 3 million ha. Sowing barley was increased to 8.8 million ha (including spring - 8.2 million ha), corn for grain - to 2.6 million ha. The area under rye amounted to 872 thsd.ha. Rice sowing increased to 194 thsd.ha, and oats decreased to 2.6 million hectares.

[2] Planted area for cereal and leguminous crops (winter/spring wheat, winter/spring barley, maize for grain, peas, oat, etc.) is 15279.4 thsd.ha, for industrial crops (sunflower seeds, soya beans, winter rapeseed and colza, sugar beet, mustard seeds etc.) is 9026.0 thsd.ha, for roots and tubers, vegetables and food melons (potatoes, tomatoes, watermelons, pumpkins, carrot, beet, cabbage, cucumbers and gherkins) is 1820.6 thsd.ha, for fodder crops is 1715,7 thsd.ha.