Brazil’s Unique Approach to Plant IP – And Why It Matters for your IP strategy

In Brazil the answer looks very different from that of the US and Europe.
Even though Brazil (as the US and Europe) operates under a dual system, namely

• Plant Variety Protection (PVP) – also referred to as Breeder’s rights: protects plant varieties
• Patent law: protects inventions (e.g., genetic traits)

Plants themselves are not patent eligible in Brazil (even if genetically modified), but only genetic constructs, transformation methods and in some cases biotech traits.

Moreover, in Brazil farmers rights are significantly stronger as compared to the US and Europe where IP rights are weighted higher.

However, recently Brazil is actively reconsidering its system (Legislative reform (Bill 404/2018 has been advancing in 2025) in order to increase private investments, improve international competitiveness and encourage agri-tech innovation. If approved this will likely mean that PVP rights will be strengthened (yet without fully abandoning its farmer-protection philosophy). One expected change is longer PVP protection terms. Farmer exemptions are also likely to be narrowed. However, even after the reform plants themselves will not be patentable.

Breeder’s Rights: What You Actually Own (and What You Don’t)
When discussing plant IP, one of the most common misconceptions is that PVP rights protect a trait, for example, drought resistance or pest tolerance. They don’t.

PVP protect a specific plant variety: a stable, uniform and distinct plant grouping that can be reproduced consistently. In other words, what is protected is not the idea of a plant with a certain feature, but a particular embodiment of that plant, i.e., the exact cultivar that has been developed and commercialized.

This distinction is critical. Two plants may share the same desirable trait, for example, drought resistance, and yet be considered entirely different varieties. Therefore, if a competitor develops a separate variety that expresses the same trait, that new variety will typically fall outside the scope of your PVP rights. On the other hand, if a variety is used as a backbone for additional small edits, it may be considered an “essentially derived variety (EDV)” and thus fall within the scope of the original variety’s PVP. Today, while the legal test focuses on distinctness, uniformity and stability, modern practice may incorporates molecular tools, particularly when assessing essentially derived varieties (EDVs).

Ultimately, PVP rights offer market control over a specific plant product, not ownership of the underlying biological innovation. This is why, in jurisdictions like Brazil, they are only one part of
a broader IP strategy. To achieve meaningful protection, especially for gene-edited or transgenic plants, PVP with patent protection should be combined.

How is gene-editing treated in Brazil?
When seeking IP protection for a genetically modified plant in Brazil, a paradox may be encountered in that the plant itself cannot be patent protected (since plants are not patent eligible), yet the plant may not be sufficiently distinct to qualify for strong PVP protection.

The IP strategy should therefore preferably be layered and include:

1. Patent protection of the technology
2. PVP protection of the specific cultivar.
3. Contracts including licensing agreements, seed distribution controls and supply chain restrictions

A time-line for protection could look like this:

1. Starting with patent protection.

Patent protection should preferably be pursued at an early R&D stage.

Plants themselves are not patentable in Brazil; instead, protection is limited to synthetic genetic constructs (not found in nature), transformation methods and, in some cases, specific technical traits. As protection of traits is a bit complex let’s drill down a bit.

The trait itself (i.e., the phenotype) cannot be protected, but the technical means that produce the trait can.

Let’s take a classic real-world example – Resistance to a herbicide.

In this case, what you cannot claim is “All herbicide-resistant plants” or “any plant that survives exposure to the herbicide.”

However, what you can protect is a plant cell with a specific mutation in a specific gene, e.g. “A plant cell comprising a mutation in gene X at nucleotide position Y”.

In short, traits cannot be protected as ideas, but only through the specific biological or technical pathway that creates them, meaning protection is tied to implementation, not outcome.

2. Breeder’s rights and contracts

Once a defined plant line, with a consistent a reproducible phenotype has been developed, but before commercial sale, breeder’s rights should be pursued.

Contracts should preferably also be in place before first sale and is an ongoing part of protecting your rights.

Take-home message: Think globally when drafting your patent application and if you want a patent in Brazil remember you cannot “own the plant” but only the technology behind it.