Embed Size (px)
DESCRIPTION
Citation preview
Legal Aspects of Bio Fuels PartnershipsCaterina Fazenda - Partner at Koury Lopes Advogados
Brazil
Opportunity
Complexity
Uncertainty
Brazil Legal Overview
Constitutional / Codified System
Complex Tax and Labor Systems
Importance of having FTO
Legal / Regulatory Framework
Biofuels Legal Framework
Land Acquisition Rules for foreign entities
New Forest Code (4.771/65)
Intellectual Property Law (9.279/96)
Seed and Seedlings Law (10.711/03)
Plant Variety Protection (“PVP”) Law (9.456/97)
Bio Safety Law (11.105/03)
Provisional Measure on Access to Genetic Heritage (2186-16/01)
2010 opinion from Attorney General restricted land acquisition by foreign companies
Registration services have to inform “INCRA” on a quarterly basis
On going discussion involving Congressmen, Ag. Ministry and Attorney General (AGU)
Final report to be approved by the end of October - changes
By the end of the year a new Draft Bill
Law will be general but further regulations should take into account needs of land intense sectors
Ethanol Cellulose Forests
Land Acquisition
New Forest Code
Approved by lower House and under discussion at the Senate
If approved President has to sanction it, but may use veto power
Main areas of debate reduce the strip of land that must be left intact along
the banks of rivers and streams exempt small landowners from requirement to
preserve 80% forest give an amnesty to landowners who cleared forest
before 2008
Seeds and Seedlings Law
Establishes requirements for production and commercialization of seeds and seedlings “RNC”
Establishes requirements for seed companies certification “RENASEM”
PVP Law
Brazil adopts a “sui generis systems”:
Plants and parts of plants can not be patented but may be protected under PVP Law. - 15 years
Protected varieties may be used by 3rd parties for breeding
PVP law allows farmers to save seeds for own use with some restrictions for sugarcane
Current PVP Law is hard to enforce in Courts
Draft of New Bill under evaluation
Intellectual Property
Patents 20 years protection or 10 from grant Living beings or parts of living beings are not
patentable New gene constructs (GMO), new methods to make
plants tolerant to herbicides may be patentable Differences between US and Brazil Law Favorable enforcement Case Law, criminal
sanctions available.
Know-how / Trade secrets Need to be protected by contacts (MTA’s and etc).
Biotech Law
CTNBIO - multidisciplinary Commission of the Ministry of Science and Development
Supports the National Policy on GMO’s Issues Technical Rules and Conclusive Opinions
on GMO’s 27 members with notable scientific
background Opinions include technical background, safety
measures and restrictions (if applicable) e.g. Coexistence rules for GMO Corn
Access to Genetic Heritage Provisional
Measure Prior approval required for research with materials from
Brazilian genetic heritage if: Collected “in situ” Kept in collections “ex situ” but collected “in situ”
Benefits should be shared through the contract
Patent filings resulting of access to “national genetic heritage” need to have had requested access authorization from CGEN.
In 9 years, CGEN approved only 25 contracts.
Establishing a Biofuel Partnership
Start right: Find the right partner Do a proper due diligence
Regular IP due diligence X Germplasm/Biotech D.D.
Ensure long term success Ensure FTO Develop a Value Capture Model Develop an IP strategy
Regular IP Due Diligence
Focus on:
IP ownership
Licenses / Contracts
Patents/Trademarks expiration dates and fees
IP litigation
Germplasm Due Diligence
FTO of Germplasm banks:
Are the materials Registered at the RNC ? Does the company has as RENASEM?
Are the materials protected by PVP ?
How materials were accessed and how they are kept Lab policies / safety measures ?
What was the Status of researchers – Were they members of public universities ?
Were Confidentiality / Non – compete agreements put in place?
Biotech Due Diligence
If GM are involved:
Are the commercial approvals ok ?
Does the company has a CIBIO and all the procedures in place?
Does the company has the CQB’s ?
Collecting Value with a Bio-fuel JV
Developing a Value Capture Model e..g. Delivery Based System - “POD”
Soybeans – traders Cotton - cotton mills – “algodoeiras” Sugarcane - Mills
Developing an Intellectual Property Strategy Integrated approach:
What is the timing of the commercial approval (GMO) Which is the best protection model PVP or Know –
How What is the best time to file for patents/where to file
Integrated Approach
Bio fuels
Biodiversity
IP LawSeeds and Seedlings
LawPVP
Know-How
Land Acquisition
New Forest Code
Bio Safety Law
