PLANT VARIETIES PROTECTION BILL

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PLANT VARIETIES PROTECTION BILL: Order for Second Reading read.

The Senior Minister of State for Law (Assoc. Prof. Ho Peng Kee): Mdm Deputy Speaker, I beg to move, "That the Bill be now read a Second time."

Overview of the Bill

Madam, this Bill is to protect new plant varieties. The primary objective of the Bill is to provide greater incentive to encourage the development of new plant varieties, and to spur innovation amongst plant breeders in Singapore .

The Bill introduces a new protection scheme in Singapore - a scheme that already exists, and is functioning well in many developed countries. The legislation is modelled after the 1991 International Convention for the Protection of New Varieties of Plants, otherwise known as the "UPOV Convention".

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A protection scheme specific to needs of plant breeders

Currently, plant breeders who wish to protect their new plant varieties in Singapore have to rely on the patent system. However, the patent system does not cater to the unique circumstances surrounding the breeding of a new plant variety. For example, to qualify for a patent, a person with the relevant skills must be able to reproduce the same invention by following the patent specifications. I am told that this criterion is difficult to satisfy in the case of plant breeding. Genetic re-assortment may occur during replication, such that even if the exact same plants are used for crossbreeding, the eventual outcome may not be exactly the same.

With the proposed Plant Varieties Act, we will be able to join 54 other state members which have acceded to the UPOV Convention. Our local plant breeders will now have an alternative means to protect their innovation. This should provide them greater incentive to develop new varieties in Singapore , which will in turn spur innovation and development in Singapore 's horticultural industry. This is vital as our plant breeders need to move up the value chain to meet the growing challenge from lower-cost countries.

Our horticultural industry is not insignificant. We have 149 horticultural farms in Singapore , of which 40 are orchid farms engaged in the breeding and production of new varieties. In the year 2003, Singapore exports of orchids, ornamental and aquatic plants amounted to $45 million. Our orchid industry has gained worldwide recognition. With our accession to the UPOV Convention, our orchid breeders will have a more effective means of seeking protection in Singapore .

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Madam, let me now highlight the key aspects of the Bill.

Benefits to local breeders

The new plant variety protection regime provides a form of IP protection specifically adapted for the process of plant breeding. In order to qualify for protection, a new plant variety must be shown on examination to be distinct, uniform and stable. It must also be commercially novel, and must be given an acceptable denomination, to distinguish the new variety from existing varieties. All these are elaborated in Part Four (IV) of the Bill.

Balance between right holder and consumers

The scope of protection of this new system is provided in Part V of the Bill. A grant of protection confers on the breeder the right to prevent others from carrying out unauthorised activities in respect of the propagating material and/or the harvested material of the protected variety. These activities include producing, selling, importing and exporting.

As a start, new varieties of 15 plant species, which are of relevance and importance to our local plant breeders and growers, will be eligible for protection. These include eight orchids, four aquatic plants, one ornamental and two vegetable varieties. More varieties can be added to this list as the demand for protection grows. From the date of grant, a protected variety will be protected for 25 years, subject to certain conditions, such as payment of an annual fee to keep the protection in force.

Madam, I would like to assure this House that we have, as with the other IP Bills, given careful consideration to the need to balance the rights of plant breeders and those of consumers. There

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may be some concerns that greater protection may mean higher prices for consumers. MND has given the assurance that the price increase, if any, is likely to be limited to new and protected plant varieties. This is because most of our vegetables are actually of the traditional variety, and will not fall within the scope of the Plant Variety Protection system. Moreover, even though Singapore imports more than 90% of its vegetables for consumption, our existing sources of vegetables are well diversified and not confined to any particular country or region.

For consumers who are willing to pay more for new and exotic varieties, they will benefit from the new choices available. In fact, we have taken careful steps to ensure that the new rights do not negatively impact the ability of others to innovate. Clause 31 seeks to provide this balance through exceptions to the plant breeder's rights by allowing a registered plant variety to be used privately and for non-commercial purposes, for experimental purposes or for the purpose of breeding other varieties. Farmers will also be allowed to save seeds from their harvests for re-planting.

Conclusion

Madam, in conclusion, this Bill will be a welcome enhancement to Singapore 's IP regime. It will provide an additional means of protection for our local plant breeders, while maintaining a balance between the right owners and consumers to spur the growth of our horticultural industry.

Madam, I beg to move.

Question proposed.

Mr Andy Gan Lai Chiang (Marine Parade): Mdm Deputy Speaker, I rise in support of the Plant Varieties Protection Bill. Before I begin, I would like to declare my interest in this Bill as Managing Director of Hydroculture-Scape Pte Ltd.

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Very often, one would hear that an invention or a particular engineering design is being protected by patent rights while not often, do we hear that plant species can also be protected by law. Although we commonly hear that Singapore orchid growers name their hybrids after themselves or sell the naming rights to others, these orchid breeders, such as Teo Peng Seng and Yusof Alsagoff are however not protected by law if someone were to copy or clone their particular orchid plant. Even students in our schools doing orchid hybridisation programmes are now producing many orchid hybrids which are not protected by law.

Alongside with orchids are ornamental plants, like heliconia, hibiscus, croton, money plant, coleus, to name a few, which are useful plants for our environment and are used extensively in greening our landscape gardens and, certainly, in most household decorations. Such plants are in great demand and new varieties can be bred or obtained from spontaneous mutations. New breeds of ornamental aquatic plants are also being bred regularly and export demand is strong as in ornamental fish exports.

I am happy to note that this Bill before us will to a certain extent solve the present problem of protecting certain plants by giving the person who discovered the plant variety a legal right to his discovery. Clause 21 of the Bill gives a grant of protection to a successful applicant in respect of his plant variety.

As the right of protection can now be granted to an applicant for any species discovered, it has created a potential commercial value for the result of research done in that it now becomes the personal property of the applicant. Clause 28 of the Bill provides for the possible assignment of a grant of protection and

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the grantee is entitled to prevent any person from carrying out propagation of the same species of plant without the authorisation of the grantee. This protection will help spin a whole new line of business in horticulture and will encourage tissue culture propagation on a wide scale. Research on new plant varieties will be encouraged with scientists having confidence that the findings are now being protected.

Although the Schedule to the Bill only lists the names of eight species of orchids, five species of aquatic plants and ornamentals, and two types of vegetables, it is my hope that this will grow in time to cover more plant genera and species, thus making Singapore an important centre for the registration of new plants. Techniques used in life science, such as hybridisation and DNA finger printing, can be applied to new orchid hybrids aiding in plant identification, while other genetically modified procedures can aid in more discoveries. For example, Dr Chia Tet Fatt from NIE has genetically engineered the world's first glowing orchid by splicing the firefly genes into the orchid plant, allowing the plant to glow in the dark. And by crossing these glowing orchids and other plants, more varieties of glowing orchids can be obtained.

Another example of the application of this Bill would be in the area of ornamental foliage plants. New varieties of flowers and variegated leaves in heliconia and hibiscus can be quickly propagated and grown in the airoponic system developed by Dr Lee Sing Kong from NIE. Such airoponic system will also allow temperate plants to be grown in tropical Singapore and form an excellent complementation of resources and systems. Looking further, new breeds of vegetables with anti-cancer, anti-cardiovascular disease properties, as

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discovered by Dr Chia Tet Fatt, can be bred with lettuce and grown under the airoponic system, developed by Dr Lee Sing Kong. Such research in genetically modified vegetables, after being rigorously tested for safe consumptions, can be released to the public to be bred as new varieties and protected under the Plant Varieties Protection Bill.

This Bill is very important if Singapore is to set itself going in the area of life sciences. And to tackle this subject with confidence, basic protection in plant research will need to be strengthened. Hence, the Bill sets me thinking of some areas that I will appreciate it if the Senior Minister of State could clarify. Firstly, what is not clear in the Bill is that if the grantee has sold, say, seeds of a particular variety, can he still have it protected even though he is no longer actively propagating the plant, while the new owner is propagating it under licence from the grantee, that is, can the grantee market his discovery under royalty while not actively propagating the seeds anymore? This is important as Singapore has limited farmland to propagate the plants and this function has then to be done in countries that have abundant farmland.

Secondly, if a company applies for plant varieties protection on, say, Variety A, and the application is turned down because the plant variety cannot be distinguished from other varieties, for example, Variety B, and if Variety B is protected, can the company still sell Variety A? Or would that be considered a violation of Variety B's variety protection? Lastly, how would the process of enforcement of a particular variety be carried out? Is it by a governmental agency or by the grantee himself? And what if the wrongful act is committed in another country? Hopefully, whatever it is, the process will involve industry players' sense of good business practice and ethics.

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New varieties of plants can be protected as it benefits the country economically and it would also encourage breeders and growers to confidently pursue their research in new plant varieties. The environment will also be the beneficiary as plant produces oxygen and promotes the well-being of all living things.

Assoc. Prof. Ho Peng Kee: Mdm Deputy Speaker, I thank Mr Andy Gan for his support of the Bill.

He is a plant breeder, a rare breed. He has made several interesting points and also asked a few questions, which I will take in turn. First, let me respond to Mr Gan's desire to see the plant varieties protection scheme grow, ie, extended to more plant species. He will be happy to note that, indeed, that is what will happen because, under the UPOV Convention, which we will accede to, we will have to extend protection to all plant species within 10 years of our accession. This will, as Mr Gan puts it, facilitate Singapore in becoming an important centre for the registration of new plant varieties.

The Member has asked three questions. The first is whether a plant variety is still protected if the grantee is no longer actively propagating the plant. Madam, the answer is yes, as long as the propagating material is maintained such that it remains available for further propagation and testing if necessary. Examples of propagating materials include seeds, cuttings and buds. This condition is set out in clauses 24 and 26 of the Bill and, again, springs from the UPOV Convention.

The purpose of this new system is to spur discovery and the development of new varieties of flowers, vegetables, aquatic plants, which we can then all enjoy. Hence, we should encourage the breeders to ensure that variety continues

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to be available so that all of us can benefit. Who knows, one day, we may all be eating blue chye sim , as a new variety! But let me assure Mr Gan that our intent is not to make it onerous for the breeder to retain his right. Hence, it is not necessary for the breeder to propagate the protected plant variety on a large commercial scale, and this meets Mr Andy Gan's concern as to the scarcity of farmland to maintain the plant variety. Maintaining a plant variety can involve simple steps, such as maintaining some plants for the purpose of obtaining cuttings and buds or storing the seeds properly. Therefore, if such a breeder maintains his variety, he can then have the right to exercise his rights under this scheme, and the right will include marketing the variety under royalty, which is Mr Gan's point.

The second question is: if a company applies for protection and the application is turned down because the plant variety cannot be distinguished from another variety which is protected, can the company still sell a variety that is not protected? The key point here is that the application has been turned down. Under the UPOV Convention, and also provided in the Bill, a particular variety must be distinguishable from many other varieties before it can be considered for plant variety protection. The Agri-Food and Veterinary Authority (AVA), who are the technical experts in this matter and who will be the body conducting the technical examinations, has confirmed that when one plant cannot be distinguished from another plant, they are considered the same variety. Hence, under clause 29, protection is extended under a grant of protection to plant varieties which are not distinct from the protected plant variety, in respect of which the grant of protection is being made. Hence, if a company applies for protection for a particular variety but is told that this variety cannot be distinguished from another one that is

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already protected, it cannot sell its variety. Any unauthorised commercial exploitation of the protected plant variety will be considered an infringement of the grantee's right. This must be so, because this is the basis for introducing such a system in the first place.

The last question Mr Gan asked is how a plant variety right can be enforced. It is the grantee himself who enforces the right, which the new system gives him. The approach is no different from that under our patent system, which has generally worked well. Essentially, the grantee himself makes an assessment whether or not it is worth his while to enforce his rights against a suspected infringer, by commencing civil proceedings in court. Under this approach, as it is the grantee who brings the action, the onus is on him to prove that an infringement has taken place. If he succeeds, the court can order the infringer to stop his infringing activities, which is to give an injunctive relief, or to pay the grantee damages or to render an account. Indeed, this process is no different from many other countries, and it is also provided for under the UPOV Convention.

Finally, Mr Gan asked what if the wrongful act is committed in another country. Madam, the plant varieties protection system is territorial in nature, much like the protection systems for patents and trade marks. The intent is to ensure that IP rights owners - in this case, plant breeders - only file for protection in countries where the plant variety will be exploited. Therefore, in countries where the plant breeder has filed for protection, he can bring suit against infringers under the foreign country's jurisdiction.

I think I have answered all of Mr Andy Gan's points. We all learn something new

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every day. I think this is something quite scientific and technical. But whatever it is, one day, we may very well be eating blue chye sim !

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Assoc. Prof. Ho Peng Kee].

Bill considered in Committee; reported without amendment; read a Third time and passed.