Decision 345 establishes the regulatory framework on plant breeders’ rights applicable in the Andean Community member countries: Peru, Colombia, Ecuador, and Bolivia. Notably, all four countries are members of the International Union for the Protection of New Varieties of Plants (UPOV); however, Peru is the only Andean country party to the UPOV 1991 Act, while Colombia, Ecuador, and Bolivia remain members under the UPOV 1978 Act.
What is the novelty requirement?
It is important to emphasize that the novelty requirement for plant varieties is exclusively linked to their commercial exploitation—that is, the sale or delivery of reproductive or propagating material—and thus constitutes an objective and verifiable fact. Accordingly, a plant variety is considered novel as long as it has not been commercially exploited in accordance with the timeframes and exceptions established under Article 8 of Decision 345, which adopts and adapts the novelty periods set forth in the UPOV 1978 and 1991 Acts.
Scenarios of loss and preservation of novelty
1. Prior commercial exploitation within a member country
Novelty is lost if commercial exploitation began at least one year before the filing date of the variety application or claimed priority date, where the sale or delivery occurred within the territory of any member country.
Example of loss of novelty:
➨January 1, 2023: The breeder sells or delivers reproductive material of the variety for commercial purposes within the territory of any member country.
➨January 1, 2024: The breeder files a plant variety protection application.
Example of preservation of novelty:
➨March 1, 2024: The breeder sells reproductive material within a member country.
➨February 28, 2025: The breeder files a plant variety protection application.
2. Prior commercial exploitation outside member countries
Novelty is lost if commercial exploitation began at least four years before (or six years for trees and vines) the filing date or claimed priority date, where the sale or delivery occurred outside the territory of any member country.
Example of loss of novelty:
➨January 1, 2017: The breeder sells reproductive material of a vine variety to a third party outside the territory of any member country.
➨January 1, 2023: The breeder files a plant variety protection application.
Example of preservation of novelty:
➨January 1, 2018: The breeder sells reproductive material of a vine variety outside member countries.
➨December 31, 2023: The breeder files a plant variety protection application.
Exceptions to loss of novelty
Pursuant to Article 9 of Decision 345, novelty shall not be considered lost if the sale or delivery occurs under the following circumstances:
(a) It results from an abuse detrimental to the breeder or their successors;
(b) It arises from a rights transfer agreement in which the variety has not been physically delivered to a third party;
(c) It is part of an agreement under which a third party, on behalf of the breeder, increases stocks of reproductive or propagating material;
(d) It forms part of an agreement where a third party conducts field, laboratory, or small-scale processing trials to evaluate the variety;
(e) It concerns harvested material obtained as a by-product or surplus from the variety or activities under points (c) and (d); or
(f) It is effected under any other illicit form.
Conclusion
Decision 345 harmonizes international standards regarding novelty by establishing clear timeframes and precise rules. This framework ensures that breeders operating within the Andean Community have a transparent and reliable legal basis for protecting their innovations in plant varieties.