How to protect innovations that drive Brazilian agribusiness

In seeds, bio-inputs, plant breeding, machinery, and digital agriculture, the protection strategy needs to accompany research from the first trials and remain active until the technology reaches the market.

An agricultural innovation can bring together diverse assets.

Innovation in agribusiness rarely boils down to a single intellectual property asset. A new cultivar, even when genetically modified, can result from years of developing specific morphological or genetic characteristics (traits) followed by crossbreeding, plant introgression, field trials, material selection, and the production of agronomic data. A bio-input may involve microorganisms, multiplication and purification processes, formulation, stability, application method, compatibility with other inputs, and a trademark. An agricultural machine may combine mechanical solutions, embedded systems, sensors, control software, operating interfaces, design elements, and branding. A precision agriculture solution may combine sensors, algorithms, databases, agronomic protocols, and a digital interface.

Therefore, it is not appropriate to treat all these elements as if they could be protected by a single patent or a single trademark. The strategy depends on identifying, in each project, what represents a technical solution, what corresponds to plant propagation material, what must remain confidential, what requires contracts, and what needs to comply with specific registration or regulatory rules.

In practical terms, Intellectual Property organizes intangible assets, such as technical solutions, distinctive signs, data, computer programs, and protectable plant materials. The goal is to transform knowledge generated in research into a sustainable competitive advantage, without losing sight of the legal limits applicable to each type of innovation.

Plant varieties: commercial registration and protection are different.

In agribusiness, one distinction is especially relevant for companies, cooperatives, producers, and research centers: protecting a cultivar is not the same as registering it for production and marketing.

Registration in the National Register of Cultivars enables a cultivar to be used commercially under the rules of the National Seed and Seedling System. Cultivar protection, in turn, is an Intellectual Property right granted by the National Service for the Protection of Cultivars. Both are subordinate to the Ministry of Agriculture and Livestock. To obtain this protection, the breeder must demonstrate, among other requirements, that the cultivar is distinct, homogeneous, and stable, usually through DHE (Distinctness, Hygiene, and Stability) tests.

The difference has direct effects on the business. A company can develop a commercially viable variety and register it for commercialization, but not obtain exclusivity if it does not adequately structure the protection of the cultivar. Similarly, the protection certificate does not replace contracts related to genetics, seed production, traceability, and the licensee network.

Under the current Industrial Property Law, plants, seeds, and plant products are not, as a general rule, patentable as such. However, the technical guidance from the National Institute of Industrial Property (INPI) establishes that this does not preclude the analysis of technical solutions associated with these materials, such as molecules, formulations, identification methods, methods for detecting genetic characteristics, and other "accessory inventions," which must be examined according to their own patentability requirements. INPI is linked to the Ministry of Development, Industry, Trade and Services.

The patent system and plant variety protection therefore deal with different matters. They are governed by their own legislation, involve distinct requirements and procedures, and can complement each other within the same innovation strategy.

Bio-inputs: the value is not just in the microorganism.

The growth of bio-inputs, biofertilizers, biopesticides, and other biological solutions has increased the importance of managing intangible assets in the field. In many cases, the economic value does not stem solely from the species or isolate used, but from the technological platform built around it.

For example, the method of production, the fermentation process, the formulation, the product stability, the application method, the compatibility with other inputs, the quality parameters, and the results obtained under specific agronomic conditions may be relevant. Each element may require its own specific form of protection.

When biological material is essential for the realization of the invention and cannot be sufficiently reproduced by written description alone, depositing this material is necessary to meet the descriptive sufficiency requirement of the patent application. The INPI (Brazilian National Institute of Industrial Property) advises that the deposit be made with an authorized institution, in accordance with the terms applicable to the Budapest Treaty and current legislation.

This procedure does not make every biological product patentable, nor does it solve the protection strategy on its own. The company needs to document the technology before disclosing it, define what can be patented, and keep confidential the industrial know-how that will not be revealed in the application.

The Industrial Property Law turns 30 years old and revisions are being suggested.

In the year that the Industrial Property Law turns 30, there are calls for its updating. In this context, INPI (National Institute of Industrial Property) recently released a report with proposals for improving the legislation. Among the topics admitted for debate is the revision of rules on non-patentable material, with reference to parts of living beings, biological sequences, and extracts. The report itself emphasizes the need for broad discussion with society.

For agribusiness, this topic deserves attention because it could influence, in the future, how technologies associated with plant breeding, biotechnology, bio-inputs, and materials of natural origin will be evaluated. However, the report does not, by itself, modify the currently applicable legislation.

Companies, researchers, breeders, and developers of agricultural technologies should continue structuring their projects according to current regulations, without waiting for any eventual reform to organize their assets. Institutional proposals, public debates, and possible legislative changes should be monitored, but should not be confused with existing rights.

Protection must begin with research.

The best business approach is to establish a protection routine from the very beginning of the research. Before the first disclosure, it is advisable to map the technology, identify project participants, record results, define confidentiality rules, conduct prior art searches, and assess, when necessary, freedom to exploit (FTO). FTO analysis seeks to identify the risk that the production, use, or commercialization of a given technology may infringe on the rights of third parties. It may also be necessary to assess obligations related to access to genetic resources and benefit-sharing, as well as contracts applicable to research, licensing, and technology transfer.

In agribusiness, innovation spans experimental areas, greenhouses, laboratories, production units, nurseries, farms, corrals, warehouses, digital platforms, and distribution networks. The sooner the Intellectual Property strategy enters this process, the greater the chances of transforming technical knowledge into an economic asset.

Practical overview: protection possibilities in the current scenario

The table below serves as an initial analysis map, where “X” identifies the type(s) of protection. The application of each instrument depends on the specific characteristics of the technology, legal requirements, and how the asset was developed and documented.

For companies, producers, cooperatives, breeders, researchers, and developers of bio-inputs, the central point is to build an integrated vision of the assets generated throughout the research, with management and strategy. The decision on what to patent, protect as a cultivar, keep secret, register as a trademark, or regulate by contract needs to accompany technical development, and not be made only when the product is ready to reach the market.

Conclusion

The legislative debate regarding potential changes to the Industrial Property Law will require a balance between preserving exclusions applicable to natural discoveries and materials, protecting technical solutions effectively developed through human intervention, and ensuring the predictability necessary for research, investment, and technology transfer.

For rights holders and users of the Brazilian Intellectual Property system, the main immediate effect of the report is to create a monitoring agenda, not to alter applicable rights.

A less restrictive review of legal provisions concerning living organisms and natural materials, if carefully calibrated, could promote the transition from biodiversity as a primary resource to biodiversity as a technological platform.

This could stimulate local research, partnerships between universities and industry, biofactories, higher value-added Amazonian supply chains, technology transfer, and the retention of intangible assets in Brazil.

*By Pedro Moreira, Industrial Property Agent