Territorial principle
However, the system of plant patents is based on the "territorial principle" (jus soli), and rights are only protected if the plant is registered in the place of sale. In other words, cultivating and selling a variety in a country where it is not yet registered does not constitute an infringement.
Because Taiwan is not a member of the United Nations, it cannot join UPOV. In the past, breeders who tried to apply for plant patents overseas were turned away at the gate. In recent years, however, through bilateral discussions, Japan, the EU, the US, and Australia have opened the door to applications from Taiwan for breeder's rights, and have agreed to mutually recognize priority.
Finally, although the law grants exclusive rights to breeders, the state is not responsible for enforcement. If piracy occurs, rights holders themselves must take up the chase, and if they cannot catch the culprits, then the rights are just meaningless words on paper.
So how easy is it to catch up with infringers?
For cut flowers, relates Julia Wu-Chiang, because they will go up for sale in the five flower auction markets across Taiwan, there is a documentary record, and if anything unusual is discovered the plants can be traced back along this paper trail. But it is more difficult to prevent piracy of privately sold potted plants. Foreport currently affixes a patent notice to all of the potted plants that are produced under license from the company, in order to make its legal position unmistakable.
Learn by suing
When infringements occur, because lawsuits are so expensive it is usually cheaper to handle the problem through private discussions. But many people just bite the bullet and say nothing.
Chang Neng-i, chairman of Yu Pin Biological Technology, which in 2003 received the first ever patent for a moth orchid variety in Taiwan, says you can now see everywhere orchids with their variety's unique coloring of purple spots on a white background. When asked why his company doesn't assert its rights, he says wryly, "Everyone wants to stay on good terms with everyone else, so what can I say?"
Chang adds that the Golden Emperor moth orchid, selectively bred by private breeder Guo Shuli and the first plant from Taiwan to be granted a patent in the US (1981), likewise never turned a profit for its creator.
The Emperor is a rare large yellow flower with a diameter of 12 centimeters, distinguished by the fact that the petals become yellower the longer they bloom. The variety won a major prize in the US in 1983, and was awarded a 17-year patent.
At that time, Guo Shuli spent NT$3 million to acquire a mother plant and other essential stems for breeding. Then, using a cloning technique, he produced a large number of orchid seedlings. When the going was good, one Golden Emperor seedling could fetch NT$12,000. But at that time there was little awareness in Taiwan of exclusive rights to plant varieties, and mass reproduction of the flowers in the market led to a collapse of prices. Moreover, because the original patent filers made the mistake of getting the US patent using a different name than the one under which the flower won its prize, protection proved difficult to enforce, and a golden opportunity was lost.
The one and only time that plant rights have given rise to a lawsuit in Taiwan was in 2006, when Foreport went to court over infringement of its patent on a variety of sessile joyweed.
At that time, recalls Julia Wu-Chiang, they found that there were a lot more plants of this variety of sessile joyweed on the market than they had anticipated. When they visited the grower who they had licensed to grow the flowers, they discovered that they were being privately reproduced. The company sent a notarized letter attesting to their rights, but the grower, to their astonishment, just went right on propagating the flowers. Foreport had no other option but to sue, compelling the infringer not only to destroy all illegal plants, but to pay compensatory royalties for every plant propagated without permission.
"Plant patents are breeder's rights, and also opportunities for producers," says Wu-Chiang. Agents, caught in a sometimes embarrassing position between the former and the latter, can only do their best to balance the interests of the two parties. On one hand they have to guard the gate on behalf of the breeders who put in all the time and energy to develop their plants, and on the other control production volumes to keep prices up and protect producers' profits. Only by maintaining this win-win environment can Taiwan enjoy an endless stream of new flower varieties, with all the beauty and elegance they bring.