Joanne Kong outlines the fundamentals of plant variety protection in Malaysia.

Plant variety protection is a mechanism that grants exclusive rights to breeders who develop new and distinct plant varieties, thereby fostering agricultural innovation and supporting the development of new plant varieties. In Malaysia, plant variety protection is governed by the Plant Variety Protection Act 2004 and an application for protection can be made to the Plant Variety Protection Registration Office of the Department of Agriculture Malaysia.

Criteria for Registration

To qualify for protection as a new plant variety, it must meet the following criteria:-

• The variety must be new in that it must not have been sold or otherwise made available commercially to the public in Malaysia or elsewhere before the filing date of the application.
• The variety must be distinct and distinguishable from existing plant varieties.
• The variety must be uniform in its relevant characteristics, meaning that it should consistently reproduce those characteristics when grown.
• The variety must be stable in that its distinguishing characteristics remain unchanged after repeated propagation.

Where a plant variety is bred, or discovered and developed by a farmer, local community or indigenous people, the plant variety may be registered as a new plant variety and granted a breeder’s right if the plant variety is new, distinct and identifiable. The terms new and distinct have the same meanings as the above while identifiable means that the variety can be distinguished from any other plant grouping by the expression of one characteristic and that characteristic is identifiable within individual plants or within and across a group of plants, and such characteristics can be identified by any person skilled in the relevant art i.e. Examiners appointed by the Plant Varieties Board.

Who May Apply?

The following are qualified applicants for plant variety protection:-

• A breeder
• The employee of the breeder
• The successor in title of the breeder
• A farmer or group of farmers, local community or indigenous people who have carried out the functions of a breeder
• Any government or statutory body which has carried out the functions of a breeder

If the applicant is foreign, a local agent in Malaysia is required to be appointed.

Period of Protection

The protection period of a registered plant variety that is new, distinct, uniform and stable is 20 years while the protection period of a registered plant variety that is new, distinct and identifiable is 15 years. For trees, vines and perennial plants, the term of protection is 25 years.

Breeder’s Rights and Obligations

Upon registration, a breeder has the exclusive rights to carry out the following acts on a commercial basis:-

• Producing or reproducing;
• Conditioning for the purpose of propagation;
• Offering for sale;
• Marketing, inclusive of selling;
• Exporting or importing; and/or
• Stocking the material for the purposes mentioned above.

However, breeders also have obligations such as maintaining the variety, furnishing the relevant breeding materials and providing detailed information about the variety upon request of the Plant Varieties Board throughout the protection period.

Conclusion

Plant variety protection in Malaysia plays a vital role in promoting agricultural innovation and ensuring the availability of improved plant varieties. By understanding the criteria, application process, and rights associated with plant variety protection, breeders and other stakeholders can navigate the legal landscape effectively. As agricultural advancements continue, plant variety protection will remain a key element in supporting Malaysia’s agricultural sector and fostering growth in plant breeding and innovation.

Joanne is a Partner at Wong Jin Nee & Teo. Her practice predominantly focuses on trademark prosecution, media and advertising clearance, and other compliance matters.