Civil Protection for New Agricultural Varieties: a Comparative Study

REVIEW OF INTERNATIONAL GEOGRAPHICAL EDUCATION

ISSN: 2146-0353 ● © RIGEO ● 11(4), WINTER, 2021 www.rigeo.org Research Article

Civil Protection for New Agricultural Varieties: A comparative Study

Mothana Abdulkadem Mashaf1 Ahmed Hashim Abed2 College of Law, University of Misan, Iraq College of Law, University of Misan, Iraq [email protected] [email protected]

Abstract The vital role that new agricultural varieties play in the food fields or in the pharmaceutical industry made them vulnerable to piracy and abuse of the contriver's rights. Therefore, it is necessary to give civil protection to agricultural varieties. For a variety to be protected, it must meet certain conditions that are subjective and procedural conditions. If as long as these conditions are met, the breeder of this variety is granted a certificate of protection that gives him/her an exclusive and moral right to confront all. The matter should not stop at this point, but conservative measures and special rules for compensation in this field must be established to protect agricultural varieties in order to enable the contriver to maintain his/her exclusive and moral right throughout the period of legal protection. .

Keywords New agricultural varieties, temporary protection, precautionary measures, permanent protection, compensation.

To cite this article: Mashaf, M, A.; and Abed, A, H. (2021) Civil Protection for New Agricultural Varieties: A comparative Study Review of International Geographical Education (RIGEO), 11(4), 1365-1374. doi: 10.48047/rigeo.11.04.130

Submitted: 20-03-2021 ● Revised: 15-04-2021 ● Accepted: 15-05-2021 © RIGEO ● Review of International Geographical Education 11(4), WINTER, 2021

Introduction.

The new agricultural varieties are those varieties reached in a non-biological way as a result of introducing improvements or modifications in the genetic makeup of a biological plant, through selection and crossbreeding, such as some modification in the composition of the plant gene to become more resistant to insects and pests, as well as leading to improved agricultural varieties. The production exceeds that of the traditional or inherited agricultural varieties (Al- Fatlawi, 2006: p. 132). There is no doubt that obtaining a new agricultural variety requires a long time and great effort, which requires a period of time ranging between 7 to 13 years during which the contriver collects a large number of samples and then examines a sample in the first year and selects it in the following year and so on until it reaches the variety that contains all the genetic traits that the contender wants and conceive of as an innovative image of the variety (Badawi, 2006: p. 168). Therefore, these agricultural varieties are considered forms of intellectual property that the UPOV Convention assured their protection on the basis that creativity in the field of new agricultural varieties is an intellectual property according to which the contriver of this kind has an intellectual property that must be protected in order to prevent aggression on the one hand and to encourage the contrivers to provide more creativity on the other hand. The UPOV agreement was not the only agreement concerned with protecting agricultural varieties. It was followed by other international agreements that took care of these varieties. Among the most important of these agreements was the TRIPS Agreement. Some countries have also issued special laws to protect new agricultural varieties, based on the provisions of the UPOV agreement. The Jordanian legislators issued Law No. (24) for 2000 regarding the protection of new agricultural varieties using the designation of a new plant variety. Likewise, the Egyptian legislators issued the Intellectual Property Law No. (82) for 2002 using the term plant breeders. As for the Iraqi legislators, they organized new agricultural varieties through the order issued by the Coalition Provisional Authority No. (81) for 2004. Due to this order, the Iraqi Patent Law No. (65) for 1970 became including, in addition to Patent and industrial designs, undisclosed information, integrated circuits, as well as agricultural varieties. Articles (51) - (79) organized them and referred to the owner of the agricultural variety by “the plant breeder”. These articles were canceled according to Article (18) of the Registration and Accreditation Law and Protection of Agricultural Varieties No. (15) of 2013. This law referred to the producer of the agricultural variety using the term cultivator.

The Broblem of Study.

In view of the vital role that the new agricultural varieties play in the food fields or in the pharmaceutical industry, which made them vulnerable to piracy and abuse of the contriver's rights, many questions arose: 1. What are the conditions that must be met in the new agricultural variety in order to possess protection? 2. What are the means for protecting this variety? 3. What is the extent of the adequacy of this special regulation established by the Iraqi legislators under the Law of Registration, Approval and Protection of Agricultural Varieties No. (15) of 2013 and the comparative laws to provide civil protection for new agricultural varieties?

The Aims of Study.

The current study aims at: 1. Explaining the conditions for granting protection to new agricultural varieties and the rights that prove to those who devote these varieties during the protection period. 2. Clarifying the Iraqi Registration Law No. (15) of 2013 for approval, registration, and protection for new agricultural varieties and the extent of its adequacy to provide effective protection for these Varieties to encourage the contriver to continue to be creative in devising new varieties.

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The Significance of Study.

Reading the texts of the UPOV Agreement and the Egyptian Intellectual Property Law No. (82) for 2002 and comparing them with what is included in the Law of Registration, Approval and Protection of Iraqi Agricultural Varieties No. (15) for 2013 to show the extent of the feasibility of the protection provided by the Iraqi legislators for agricultural varieties to ensure the contender a minimum level of care and attention to encourage him/her to continue to develop new agricultural varieties.

The Design of the Present Study.

The above questions will be answered according to the comparative analytical method by studying and analyzing the legal texts contained in the UPOV, TRIPS, and the national legislations of countries that have enacted special legislations to protect new agricultural varieties. This will be done by dividing the present study into a number of sections to show the problem of the present study.

Legal Conditions for the Protection of New Agricultural Varieties.

Most national legislations and international treaties required, in order to grant protection to new agricultural varieties, that a set of subjective and procedural conditions be met. These conditions will be described successively:

Subjective Conditions for the Protection of New Agricultural Varieties.

In order to protect the new agricultural variety, there should be a set of self-conditions in this category, including those related to the same variety, and these are the substantive conditions that are supposed to be available in the new agricultural variety, in addition to the formal conditions stipulated in the Iraqi Agricultural Varieties Registration and Certification Law No. (5) for 2013 for the purpose of protecting this variety from others. These conditions will be described successively:

The Objective Conditions for the Protection of New Agricultural Varieties

These conditions relate to the description of the new agricultural variety as novel. This variety should be homogeneous, distinct, and characterized by persistence (Article (3/3) of the Iraqi Agricultural Varieties Registration, Certification and Protection Law No. (15) of 2013). These conditions will be described successively: A. The agricultural variety is considered new if it has not been previously extracted and has not been approved by others for offering it for circulation or use in any way, i.e. whether it was a direct method through the use of the variety itself or was indirect if it used propagation materials to produce other varieties or was introduced in Other synthetic materials, such as medicines, in the country in which the application was filed for a period of more than a year before the filing date, or in the territory of any other country other than the country in which the application was deposited for a period of more than four or six years if the request for protection was focused on trees or grapes (Article (6/1): UPOV). The burden of proof falls on the contriver of the new agricultural variety, as he/she is the stakeholder in proving that the specified period of time has not expired. The contributor of the new agricultural variety can prove in all ways of proof, the most important of which is to provide evidence of the date of the first circulation, offering, or exploitation of the variety (Ashour, 2019: p 285-299).

B. The new agricultural variety must be distinct and different from other agricultural varieties known publicly at the date of filing the application in at least one capacity, such as length, size, weight, color, or smell. This difference should be clear, apparent, and can be easily discovered. The new variety should preserve this characteristic at its reproduction. Accordingly, the agricultural variety that does not have one of the characteristics distinguishing it from publicly known agricultural varieties at the time of application; if the distinctive characteristic could not be 1367 © RIGEO ● Review of International Geographical Education 11(4), WINTER, 2021 retained by the cultivar during reproduction, it does not reach the degree of excellence that qualifies it for protection by law Intention (Abdul Majeed, 2005: p. 142). C. The characteristics of the new agricultural variety must be homogeneous. There should not be any variation or difference in these characteristics. The variety is considered homogeneous if its basic characteristics are sufficiently compatible and not varied, taking into account the expected differences in the basic characteristics of the variety that characterizes the process of Reproduction. This means that the absolute homogeneity of the characteristics of the variety is not required as the expected differences in the characteristics that usually accompany the reproduction process do not negate the existence of homogeneity.

Formal Conditions for the Protection of New Agricultural Varieties.

For the new agricultural variety to be protected, this variety must have a name. The plant source from which the breeder obtains this variety must be legitimate. This will be shown successively: A. The new agricultural variety must have a name that distinguishes it, allocates it, and prevents it from mixing with other agricultural varieties. No specific characteristics are required in this name except that it is specific to the new agricultural variety. The name of the new agricultural variety may be composed of a word or a group of words and numbers or a group of letters and numbers. It is not permissible to designate from a group of numbers unless this is a custom followed to identify and assign items. It is required that these numbers be sufficient to identify and specify the class from other categories ((Bundak, 2005: p. 214). Good qualities in the variety should not be mentioned in the name, as it may not be accurate when new varieties emerge. Names of other varieties of the same crop should not be repeated. Names that may be mixed with other names and varieties from the same crop should not be used. The name should not include the word pollination or hybrid. The name must be of three words at most, pronounceable, and usable. The name may include numbers and letters besides the words, none of which exceeds four. It is not permissible to register a name for the agricultural variety that contradicts the provisions of the Law on the Registration, Approval and Protection of Agricultural Varieties No. (15) of 2013, r contradicts considerations of public order. The researchers also see that it is necessary when determining the name of the genetically modified agricultural variety to add to the name what states that it is a genetically modified plant, for the purpose of preserving the consumer and giving him/her freedom to choose between the genetically modified plant and others in order to reduce the expected risks to the genetically engineered plants and to religious and ethical considerations (Mohaisena, 2019: p. 17-27). B. Legitimacy of the source; the contriver must indicate the genetic source on which he/she relied to infer the new agricultural variety to be protected. He/she must prove that he/she obtained that genetic resource through a legitimate path. This source may be one of the following assumptions: 1. Natural, wild, or desert environment; this source is considered to belong to the state. It is certain that the agricultural variety will be registered with the Genetic Resources Bank. This requires the approval of the National Committee for the registration, accreditation and protection of agricultural varieties as it is the authority that is responsible for granting approval to deal with genetic resources with a view to devising varieties and the new products derived from them according to the conditions it deems to be in the interest of the country. 2. Obtaining the original variety from the genetic source with the consent of the owner and in agreement that this is for research and development and obtaining a new agricultural variety. In exchange, the owner of the original variety obtains a lump sum or obtains a percentage of the profits expected to be obtained by the owner of the new variety. 3. Purchasing the genetic resource for the use in research and the creative process for reaching the new plant variety (Khalil, 1983: p. 175).

Procedural requirements for the protection of new agricultural varieties.

For the agricultural variety to obtain a protection certificate, there must be, in addition to the self- conditions, a set of procedural conditions represented in submitting an application for granting a protection certificate for this variety to the concerned authority, and the approval of this authority on the request. This will be indicated successively:

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Submitting Request for Granting Protection Certificate for the New Agricultural Varieties.

The procedures for the protection of new agricultural varieties begin with the submission of an application by persons designated by law to a specific authority as follows; A. The party that submits an application for granting a protection certificate for the agricultural variety. The Iraqi legislator has determined, according to Article (10) of the Law for Registration, Approval and Protection of Agricultural Varieties No. (15) for 2013 the persons who have the right to submit a request for a certificate of protection for the new agricultural variety according to the following: 1. The contriver to which the rights shall be transferred. 2. For all persons involved in drawing it up if it is the result of their joint effort, provided that registration takes place according to their agreement. 3. To the contriver, as it was verified that each of them is independent from the other. B. The party to which the request for granting a protection certificate for the agricultural variety is submitted. A request for a certificate of protection for the new agricultural variety shall be submitted to the National Committee for the registration, accreditation and protection of agricultural varieties with all required data in accordance with the form prepared for this purpose. The following papers must be attached to this application, the receipt indicating the payment of the fee, a certificate of deposit of a sample representing the variety subject to the request issued by the bank of Genetic sources , certificate of registration of the genetic source in the record, a description of the technical description of the variety that includes the most important appearance and functional characteristics and any other characteristic that distinguishes it from other agricultural varieties of the same type (Article (3 / First)) Iraqi Law for Registration, Approval and Protection of Agricultural Varieties No. 15 of 2013). The National Committee shall give sequential numbers for the requests of protection in the order, date, and time they are received. Numbering starts at the first of January of each year. The applicant is given a receipt stamped with the seal of the National Committee, which includes the following data; the sequential number of the request, the name of the applicant, and the date of application. The records of the protection of the agricultural variety are recorded in a special record called the record of registration of applications for a protection certificate for agricultural varieties. The record includes the following data: the sequential number for the application, the date of application, the name of the applicant, the representative sample number of the variety in question, the measures taken in the application, the gender, type and variety of the plant type to which the variety belongs, and a summary of the description of the new variety (Qalioubi, 2008: p. 718).

Deciding on the Request to Grant Protection Certificate for New Agricultural Varieties.

Any decision to grant a protection certificate to the new agricultural variety requires an examination to ensure that objective and formal conditions are met based on all necessary information, documents and materials. The National Committee may, during the examination procedure, undertake by itself or entrust others with the cultivation of the variety or directly of other necessary tests, or take into account the results of implantation tests or other tests performed by the contriver (Zinedine, 2005: p. 98). After Examining and performing the above actions, the National Committee takes one of the following decisions: A. Refusal of a request to grant a protection certificate for new agricultural varieties. If the National Committee finds that the variety is not distinguished, not new, or lacks consistency and homogeneity, in this case, the National Committee rejects the request to grant a protection certificate for the agricultural variety and informs the applicant of this refusal, explaining to him/her the reasons that led to this rejection. The applicant has the right to submit an objection to the Minister on the committee’s decision to reject his/her request within (30) days from the date of notification. The decision of the Minister is subject to appeal before the competent Court of First Instance within (30) thirty days from the date of notification. B. Accepting the request to grant a protection certificate for the new agricultural varieties. After verifying the availability of the previous conditions, the National Committee shall issue a certificate to the applicant stating that he/she has the right to protect the agricultural variety in

1369 © RIGEO ● Review of International Geographical Education 11(4), WINTER, 2021 question to enable him/her to exercise his/her powers and rights all over this variety. The applicant does not obtain this certificate unless he/she pays the prescribed fee. The applicant is also obligated to pay expenses of publishing the decision to grant a protection certificate in the Agricultural Varieties Bulletin issued by the National Committee, which is annual.

Legal Effects of Protecting New Agricultural Varieties

The breeder who obtains the protection certificate will prove rights to his/her protected agricultural variety. National legislations and international agreements have provided means to protect agricultural varieties that grant a protection certificate from the competent authority to prevent abuse of these varieties. This will be explained successively:

The Breeder's Rights after Being Granted Protection Certificate for the Agricultural Variety.

If the breeder is granted a certificate of protection, he/she becomes the owner of an exclusive right in his/her protected agricultural variety. Besides, the breeder is granted the moral right for this variety. This will be shown successively:

The Exclusive Right of the Breeder of New Agricultural Varieties.

The breeder who obtains the protection certificate has an exclusive right in his/her protected agricultural variety, but the legislator restricted this right to restrictions for certain considerations as follows; A. The content of the exclusive right of the contributor to the new agricultural varieties. B. The investor who obtains the protection certificate shall prove an exclusive right that enables him/her to commercially exploit the agricultural variety that is protected by all forms of exploitation. Others may not produce or circulate the propagating material from which the agricultural variety is generated, whether it is in the form of a complete plant or parts of it whenever it is for the purpose of commercial exploitation except under a contract written by the National Commission for the Registration, Approval and Protection of Agricultural Varieties (Zinedine, 2005: p. 98). Accordingly, any use of the agricultural variety outside the limits of commercial exploitation is not considered an attack on the rights of the breeder of this agricultural variety. It is considered one of the non-commercial activities that do not need a written contract that is registered with the National Committee and that does not represent an attack on the breeder’s exclusive rights. The farmer retains some of the seeds of the protected agricultural variety resulting from cultivation with the aim of using them as seeds for re-cultivation on the farmer’s own land. These varieties may also be used to conduct experiments and scientific research as scientific research activities carried out by agricultural research centers. These varieties may be used with activities for the purposes of education and training to raise the level of education and training in the field of agricultural technology in a way that serves the public interest of the community, such as educational and training activities for educational institutions and specialized training centers (Lutfi, 2003: p. 631). These varieties are cultivated and hybridized with a view to devising new agricultural varieties other than those varieties. The Iraqi legislators did well when this exception was stipulated because if it had not been stipulated, this would have closed the door to attempts to develop new agricultural varieties because this activity becomes dependent on the breeder’s approval. C. Restrictions on the exclusive right of the breeder of new agricultural varieties. The Iraqi legislator has restricted the exclusive right of the breeder of the new agricultural variety to two restrictions. One of the restrictions is voluntary due to the act of the breeder. The other restriction is administrative due to the act of the administration in the form of the Minister of Agriculture as follows; 1. The voluntary restriction; If the breeder of the agricultural variety markets the materials of the protected variety for circulation outside the country in any country by itself or by licensing it, this marketing gives others the right to trade, sell, market, distribute or import the protected variety either in the form of materials of a crop of a whole plant or any part thereof, products extracted or manufactured from the crop, or other plant components (Article (198) Egyptian Intellectual Property Law No. (82) of 2002) because this authorized others to put the protected materials for 1370 Abees, Prof. Dr, S, R.; Rahman, P, A.; and kadhim, S, J. (2021) The Relationship of The Center of Gravity of …

circulation outside Country, which means approval of this offering to deal with sale, supply and other related businesses. This does not limit the right of using the variety to the breeder only and prevent others from dealing with this protected variety inside the country. 2. Administrative restriction; The Minister of Agriculture may, at the request of the National Committee, grant a license to the third party, with the approval of the breeder, to exploit the protected variety in cases required by the public interest. In this case, the recipient may obtain fair financial compensation in order to take into account the economic value of the license from a neutral committee formed for this purpose. The licensee must observe the license. Otherwise, the Minister may, on his/her own initiative or at the request of the licensee (inquirer) cancel the license while preserving the rights of those related to this license (Article 16 of the I raqi Agricultural Varieties Registration, Certification and Protection Law No. 15 of 2013). The Minister of Agriculture, on the recommendation of the National Committee, may directly restrict the breeder for all or some of his/her rights stipulated in this law in any manner with the aim of achieving the public interest especially if the protected agricultural variety shows a negative impact on the natural environment or on the integrity of biological diversity Or the agricultural sector in the Republic of Iraq, or a life or health of a person, animal, or plant, or if this variety shows a harmful economic or social impact or hindering local agricultural activities, or if it appears to have a use that contradicts the values and beliefs of society (Article 13 of the Iraqi Agricultural Varieties Registration, Certification and Protection Law No. 15 of 2013). There is no doubt that this administrative restriction aims to achieve the public interest by preserving the natural environment from pollution due to the use of the protected variety and preventing its impact on the agricultural sector or on human, animal and plant health.

The Moral Right of the Breeder of New Agricultural Varieties.

There are supporters and rejecters for the moral right of the breeder of new agricultural varieties. Accordingly, the views of opponents and supporters for the moral rights of the agricultural varieties will be clarified as follows; A. The inferior of the new agricultural varieties does not possess the moral right. Proponents of this trend see that the legislator limits the rights of the breeder of new agricultural varieties to the exclusive right to commercial exploitation only, and not the moral right in any of the forms. Therefore, it is necessary to adhere to the verbatim of the text and not to expand the interpretation because the expansion of the text and the addition of the moral right represent an addition that can benefit Multinationals by adding to their exclusive financial rights other moral rights. Thus, these companies are given the opportunity to exhaust the national economy with additional economic burdens (Hassan, 2004: p. 159). B. The breeder of new agricultural varieties shall possess the moral right.Another aspect of jurisprudence sees that the connection between the breeder and the new agricultural variety that he/she devised leads to a logical conclusion that the breeder must possess a moral right over the new variety under protection. Consequently, the breeder has the right to attribute it to him/her and to prevent assault against him/her. The breeder has the right to withdraw it from circulation after its introduction or amendment in the designation or addition to it, provided that this does not lead to a fundamental change in the new agricultural variety or that the breeder, with it, needs to obtain a new certificate of protection (Muhammadin, 2000: p. 54). The proponents of this trend also see that interest in the moral aspects of the new agricultural variety is considered support and encouragement for them so that the financial aspects do not become the ultimate goal of the breeder. The financial rights vanish and the moral credit remains in the record if the breeder presents the fruits of his/her efforts without an objective or material goal other than serving the humanity (Al-Najjar, 2005: p. 77).

Means of Protecting New Agricultural Varieties.

The issuance of a certificate of protection for the new agricultural variety results in that this variety possesses protection for a legally defined period. But, this protection is not limited to the period following the issuance of the certificate of protection as national and international agreements granted previous protection for the issuance of the certificate called temporary protection.This will be shown successively:

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Temporary Protection of New Agricultural Varieties.

In Article (193/3) of the Intellectual Property Law No. (82) of 2002, the Egyptian legislator decided to grant the agricultural variety for which a registration application was submitted, temporary protection starting from the date of filing the application with the competent office and ending with the date of publication of the announcement of the acceptance of the request to grant protection, provided that the right of the breeder is limited during This period for the right to demand fair compensation once he/she is granted this protection, provided that the breeder has notified the person who exploited the agricultural variety that he/she deposited his/her application before it was decided to grant him/her protection.

Permanent Protection of New agricultural Varieties.

In Article (193/1) of the Intellectual Property Law No. (82) for 2002, the Egyptian legislator decided a period of twenty-five years of exclusive protection for the breeder who owns the new agricultural variety if the protection is related to trees and grapes. As for other plants, the period of protection is limited to twenty years only. The basis of the distinction in the legal protection period between trees and grapes and between other plants is the importance of trees in general for the continuation of their life for a long period and for grape trees in particular. The protection period begins from the date of granting the breeder a certificate of protection for the agricultural variety. As for the Iraqi legislator, Article (14) of the Law for Registration, Approval and Protection of Agricultural Varieties No. (15) for 2013, an exclusive protection period of twenty years is decided for the breeder who owns the new agricultural variety if the protection relates to trees and grapes. During the period of protection, the breeder shall possess the rights established for him/her on the protected agricultural variety. The breeder may file a civil lawsuit before the competent Court of First Instance against those who assaulted his/her rights in this variety. The Iraqi legislator did not stipulate in the law of registration, accreditation and protection of agricultural varieties No. (15) of 2013 Conservative measures to protect agricultural varieties. This law did not contain provisions for civil liability resulting from the abuse of these varieties, which necessitates reference to the general rules in civil responsibility contained in the Iraqi Civil Law No. (40) for 1951. Civil responsibility can be either contractual or default depending on the nature of the relationship between the breeder and the aggressor; if the attack on the new agricultural variety was carried out by the licensee to exploit this variety under the license contract, the breeder is required to claim compensation for filing a contractual liability claim. But, if the attack occurred from others who have no contractual reliability to the breeder, in this case, the claim for compensation by the breeder’s filing of the liability shall be made.

Conclusions.

At the end of the present study, the researchers reached the following results and recommendations:

First: The Results:

In order to grant protection to new agricultural varieties, the Iraqi and Egyptian legislator and the UPOV agreement required that a set of objective conditions must be met in the new agricultural variety; novelty, distinctiveness, homogeneity, and consistency. The formal conditions for this variety are to have a name and the breeder shall obtain the plant from its source legitimately. If the above conditions are met in the variety, a request for granting a protection certificate for this variety must be submitted by the breeder to the National Committee for the registration, accreditation and protection of agricultural varieties and the approval of this committee on the application. The breeder who gets the protection certificate has an exclusive right in its protected agricultural variety. Besides, the moral right for this variety is established. The issuance of a certificate of protection for the new agricultural variety results in the protection for a period of twenty years if the protection relates to trees and grapes. As for other agricultural varieties, the duration of Protection is limited to ten years only. The period of protection begins with the date of filing an application for registration with the National Committee. The Iraqi legislator did not do

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well when granting the right to exploit the agricultural variety during the period of temporary protection because it leads to negative effects, such as conducting an inferred right that is not formally established because the breeder’s right of ownership of the variety is only realized by registering as registration has the effect of a constructor of property that does not reveal it. The protection is only available after completing the registration procedures. The Iraqi Agricultural law No. (15) for 2013 did not provide precautionary measures to protect agricultural varieties. In the case of assaulting the agricultural variety, compensation includes the loss caused to the affected breeder and the loss he/she has lost, as well as moral damage. Compensation is due to the amount of damage without increasing or decreasing. This compensation is not sufficient to redress the damage to the breeder as a result of assaulting his/her Agricultural variety Because the judiciary does not take into account when calculating the amount of compensation, the money spent by the affected breeder in the research, development, and hybridization of his/her agricultural variety and the profits earned by the aggressor from assaulting the agricultural variety.

Second: The Recommendations.

The researchers recommend the Iraqi legislator to amend the Law for the Registration, Approval and Protection of Agricultural Varieties No. (15) for 2013 to limit the right granted to the breeder during the period starting from the date of submitting the application to the National Committee for the registration, accreditation and protection of agricultural varieties and ending with the date of publication of the announcement of the acceptance of the request to grant protection, to respond to the assault claiming compensation only until the protection certificate is issued. The researchers also recommend the Iraqi legislator to pass a set of precautionary measures in the above law aiming at stopping the assault on new agricultural varieties, proving it, limiting the damages resulting from it, enabling the breeder to claim compensation, giving the judge of the competent court of first instance the right issue one or more appropriate precautionary measures, in particular: 1. Proving the assault on the new agricultural variety. 2. 2. Carrying out an inventory and detailed description of the violated varieties and the tools that were used in assaulting the variety. 3. 3. Signing the seizure of the things mentioned in Clause. In order to find a balance between the interest of the defendant, who has not yet been proven to have assaulted the agricultural variety, and the interest of the plaintiff in obtaining prompt and effective temporary protection, as well as to prevent abuse of the right of requesting provisional measures, the applicant is obliged to provide sufficient financial guarantee to prevent abuse that guarantees seriousness. The person submitting the request should take precautionary measures in what he/she claims and to guarantee the damage that may be caused to the defendant whenever the claimant is not right in what he/she claimed. The matter is to file a grievance with the Court of First Instance within thirty days from the date of its issuance or its announcement. The judge of the Court of First Instance will have the right to support the order or cancel it in whole or in part. Finally, the Minister of Justice must, in agreement with the Minister of Agriculture, issue a decision determining who has the status of judicial seizure in implementing precautionary measures to protect agricultural varieties.

References:

Zeineddine, Abed Al Maksoud. Environment and Human Being. 2nd ed. Kuwait: Scientific Researches Center, 1990. Abdulmajeed, R. (2005). the legal system for animal and plant species disasters, Arab Renaissance House, Cairo. Al-Fatlawi, S. (2006). Industrial Property, New University House, Alexandria. Al-Qalioubi, S. (2008). Industrial Property, 7th edition, Arab Renaissance House, Cairo. Ashour, A. (2019). Criminal Liability Against Perpetrators of Economic Crimes. International Journal of Innovation, Creativity and Change 9, no.2: 285-299. Badawi, B. (2006). The Evolution of International Mechanisms for the Protection of Industrial Property Rights, Arab Renaissance House, Cairo. Bandak, W. (2005). Encyclopedia of Intellectual Property, Vol Three, Industrial Property, Dar Al-Fikr Al-Jami'a, Cairo.

El-Najjar, M. (2005). The Legal Organization of Commercial and Industrial Property Elements, New University House, Alexandria. Hassan, N. (2004). Intellectual Property Protection in the Pharmaceutical Industry, New University House, Alexandria. Khalil, J. (1983). The Legal System for the Protection of Inventions and Transfer of Technology to Developing Countries, Kuwait University Press, Kuwait. Lutfi, K. (2003). Encyclopedia of Intellectual Property Rights, Nass Corporation, Cairo. Muhaisena A. and Muttair, W. (2019). The Administrative Judge's Role in Filling the Legislative Gaps, International Journal of Innovation, Creativity and Change 9, no.2: 17. Muhammadin, J. (2000). Legal Protection of Industrial Property According to Trade-Related Aspects of Intellectual Property Rights, New University House, Alexandria. Zain Al-Din, S. (2005). Industrial and Commercial Property, House of Culture, Amman.

Laws:

The Egyptian Civil Law No. (131) of 1948. The Iraqi Civil Law No. (40) of 1951. The Jordanian Law for the Protection of New Varieties of Plants (24) of 2000. The Egyptian Intellectual Property Protection Law No. (82) of 2002. Law of Registration, Approval and Protection of Agricultural Varieties No. (15) of 2013.

International agreements:

The International Convention for the Protection of New Varieties of Plants (UPOV) concluded in 1961. The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) signed in Marrakesh on April 15, 1994.

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