Highlights of the UPOV Convention

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Highlights of the UPOV Convention IGNOU, New
Delhi India April 2005
Anil Sinha Senior Program OfficerWIPO Worldwide
Academy World Intellectual Property Organization
(WIPO)
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UPOV

• International Union for Plant Variety Protection

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What is plant breeding?

• Plant breeding is the act of developing new
  varieties of plants through the transfer of
  desirable traits from parent to progeny, through
  the practical application of genetics.
• Plants evolve naturally over generations through
  genetic variation that results from sexual
  reproduction and genetic mutation.
• The aim of plant breeding is to intervene in this
  process so as to ensure the transfer of specific
  desirable traits from parent stock to progeny.
• This involves changing the hereditary makeup of
  plants so as to fix the required traits in a
  stable form for successive generations.

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What is plant breeding?

• The main techniques for plant breeding are
  selection, hybridization, genetic engineering and
  mutation
• selection within a species allows for traits
  which can be inherited to be gradually reinforced
  insuccessive generations, by cultivating progeny
  only from those parents which best display the
  desired traits
• hybridization entails cross-pollinating plants of
  different strains to bring together their
  desirable traits in their offspring. It is often
  combined with back-crossing and selection over
  several generations to ensure that the combined
  traits reappear in each new generation to
  ensure that the hybrid breeds true with the
  desired new trait

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What is plant breeding?

• genetic engineering fast tracks the transfer of a
  desirable trait into the genetic structure of a
  plant and
• mutations (or sports) occur naturally in
  plants, when the genetic makeup (normally of a
  single gene) spontaneously changes in some cases
  this leads to an improved quality, which can then
  be bred further to produce a stable new variety
  including that quality. Radiation and chemicals
  can be used to induce mutations for use in
  breeding.

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Public interest in plant breeding

• Plant breeding in the past has produced the crops
  that are the mainstay of todays agriculture
• This process continues today, so that further
  plant varieties will be available to meet the
  challenges
• of sustainable agriculture,
• population growth
• environmental impact,
• as well as providing other economic, social and
  cultural benefits for the community.

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Why have plant breeders rights?

• Any government in this context is faced with two
  basic questions
• how to promote the availability of the necessary
  resources and investment for plant breeding to
  occur and
• once useful new varieties are developed, how to
  ensure that their benefits can be enjoyed by
  society on reasonable terms, including the need
  for further plant breeding to continue.

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Why have plant breeders rights?

• One way to achieve this would be for governments
  to fund plant breeding directly,
• Another way is to recognise the need to provide
  incentives for private plant breeders, or for
  institutes not fully funded by the government, to
  invest their resources in innovative plant
  breeding.
• To this end, many countries have established a
  legal system of intellectual property (IP)
  protection known as plant breeders rights
  (PBR) or plant variety rights (PVR).

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Why have plant breeders rights?

• A PBR is a separate kind of IP right which is
  granted for a distinct new plant variety.
• A plant variety is generally defined as the
  lowest level of taxonomy (or classification)
  within the plant kingdom in ordinary language,
  a group of plants that is distinct from all
  other groups of plants within a given species.
• By contrast, a plant species, a higher level of
  classification, covers plants that are different
  from one another, but are capable of
  interbreeding.

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Why have plant breeders rights?

• A PBR gives the innovator the opportunity, via a
  limited monopoly, to gain reward for their effort
  and investment.
• Without this period of exclusive rights, anyone
  else would be able to reap commercial benefits
  from the innovation without having to pay for its
  development.
• The innovator would have little chance of
  recouping the costs of creating the new variety,
  resulting in a major disincentive to investing in
  plant breeding and developing new plant
  varieties.

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legal options for plant variety protection

• a specific legal system that is sui generis or
  tailor made for protecting plant varieties
  commonly known as a PBR system
• the patent system that encompasses plant
  varieties provided that they can be characterized
  as an invention and otherwise meet the normal
  criteria for patenting any new technology and
• general legal mechanisms, such as protection of
  trade secrets and contract law.

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UPOV the most common PBR system

• The most common legal mechanism for plant variety
  protection is a specific PBR system.
• UPOV Convention sets out a framework for specific
  PBR systems that is used extensively.
• UPOV establishes a number of principles that
  acknowledge the achievements of breeders of new
  plant varieties, by making available to them an
  exclusive property right, on the basis of a set
  of uniform and clearly defined criteria.

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Key elements of the UPOV system

• A country which is either a member of UPOV, or
  has an equivalent system consistent with UPOV
  criteria, will normally be seeking some specific
  outcomes, such as to
• achieve recognition that its plant variety
  protection system meets international standards,
  and gives effect to the TRIPS requirement of an
  effective sui generis system
• the ability of breeders to obtain protection in
  other member states under same treatment
  provisions
• the ability of the breeders to claim priority in
  other countries for applications filed in the
  member state
• make use of UPOV technical support for the
  examination of new plant varieties by use of UPOV
  technical standards

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Why UPOV?

• Governments seek to apply the general UPOV
  international standards in a specific national
  context in order to
• encourage investment in plant breeding, and the
  transfer of technology and know-how from
  overseas
• promote the development of varieties adapted to
  the nations agricultural and economic
  conditions
• establish a balance of interests between the
  breeder of a new variety and others who make use
  of the variety through further breeding or
  genetic modification
• increase community access to varieties with
  improved characteristics of nutrition,
  productivity,taste, look, scent, and which
  alleviate some environmental concerns and
• take advantage of harmonised international
  systems to facilitate the export of harvested
  material or end products produced from protected
  varieties, and trade in new plant varieties and
  technologies.

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UPOV

• UPOV was established in 1961 and revised in 1972,
  1978 and 1991.
• UPOV establishes harmonised international
  standards for plant variety protection, as well
  as mutual international obligations between
  parties to the Convention.
• The acronym UPOV is from the French name of the
  organisation established under the Convention,
  namely the Union Internationale pour la
  Protection des Obtentions Vegetales

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PBRs and TRIPS

• The TRIPS Agreement does not have detailed
  provisions on PBR protection, but stipulates that
  plant varieties must be protected by
• patents or
• effective sui generis protection, or
• both patents and sui generis protection.

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What is a variety?

• UPOV 1991 defines a variety as
• a plant grouping within a single botanical taxon
  of the lowest known rank, which grouping,
  irrespective of whether the conditions for the
  grant of a breeders right are fully met, can be
• defined by the expression of the characteristics
  resulting from a given genotype or combination of
  genotypes
• distinguished from any other plant grouping by
  the expression of at least one of the said
  characteristics and
• considered as a unit with regard to its
  suitability for being propagated unchanged.

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the DUS requirements

• UPOV provides that PBR may be granted to the
  breeder of a new variety that is
• distinct
• uniform
• stable
• The UPOV technical requirements for breeders
  rights are referred to as the DUS requirements

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New

• New
• A plant variety is new if at the date an
  application is filed for a breeders right
  propagating or harvested material of the variety
  has not been sold one year before the filing date
  in the country in which protection is sought.
• A plant variety is also new if at the date of
  filing for a breeders right propagating or
  harvested material of the variety has not been
  sold four years before the filing date in member
  countries parties outside the member country in
  which protection is sought.
• In the case of trees and vines, the period is
  six years.

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Distinct

• Distinct
• A new plant variety is distinct if it is clearly
  distinguishable from any other variety whose
  existence is a matter of common knowledge at the
  time of the filing of the application
• UPOV also provides that an application in any
  country for a plant breeders right or entering
  another variety in an official register of
  varieties makes that variety a matter of common
  knowledge from the date of the application.

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Uniform

• Uniform
• Subject to the variation that may be expected
  from the particular features of its propagation,
  a new plant variety is uniform if it is
  sufficiently uniform in its relevant
  characteristics. That is, within a specified
  environment, all plants of the population will
  conform to the description of the variety.
• In other words, when the variety is grown in the
  field, the great majority of individual plants
  must display all the specific properties that are
  claimed for the variety.

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Stable

• Stable
• A new plant variety is stable if its relevant
  characteristics remain unchanged after repeated
  propagation or in the case of a particular cycle
  of propagation, at the end of the cycle. In other
  words, the claimed improvements or distinctive
  features in the new plant variety must not be a
  once-off or transient property they must be
  durable, and reappear in subsequent generations
  of the plant.

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Examination

• New plant varieties must be subject to a series
  of examinations before the grant of PBR can be
  made.
• UPOV has an active role in harmonising national
  examination processes for assessing whether
  claimed new plant varieties meet the DUS
  requirement.
• This reduces the cost and uncertainty for
  breeders seeking protection in several countries,
  and assists administrations to apply their
  resources efficiently.
• Prior to the UPOV Convention, different countries
  had different examination standards for DUS
  testing.

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Scope of PBR

• The plant breeders right is an entitlement to
  exclude others from doing specific acts in
  relation to an eligible new plant variety.
• UPOV provides that in respect of the propagating
  material of the protected variety a breeders
  authorization is required for the following acts
• the production or reproduction
• conditioning for the purpose of propagation
• offering for sale, selling or other marketing
• exporting or importing, and
• stocking for any of these purposes.

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Propagating material

• Propagating material
• any product from which
• another plant
• with the same essential characteristics
• can be produced.
• For example, a rose can be reproduced by growing
  a bud or from a cutting.

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Essentially derived variety

• A variety which is essentially derived from a
  protected variety and which fulfills the normal
  protection criteria of novelty, distinctness,
  uniformity and stability, may be the subject of
  protection but cannot be exploited without the
  authorization of the breeder of the protected
  variety.
• a variety (B) is essentially derived from
  another variety (A) when it (B) is
  predominantly derived from that variety (A), and
  except for the differences which result from the
  act of derivation, it (B) conforms to that
  variety (A) in the expression of the essential
  characteristics that result from the genotype or
  combination of genotypes of that variety (A).
  Accordingly, for practical purposes, varieties
  will only be essentially derived when they are
  developed in such a way that they retain
  virtually the whole genetic structure of the
  earlier variety. Any protected variety may, even
  under the 1991 Act, be freely used as a source of
  initial variation and, only if a resulting
  variety falls within the narrowly defined concept
  of essential derivation, is the authorization of
  the breeder of the protected variety required.

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Term of Protection and exceptions

• Generally 20 years,
• 25 years for trees and vines
• The term of protection for trees and vines is
  longer than for other plant varieties in
  recognition of the fact that the breeding process
  for trees and vines is a much longer process than
  for other plants.
• Exceptions to the breeders exercise of PBR
• acts done privately and for non-commercial
  purposes
• acts done for experimental purposes, and
• acts done for the purpose of breeding other
  varieties.
• allow farmers to save seed (optional),

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Thank you