Introduction to UPOV convention.pdf - The East Asia Plant Variety ...

PVP SYSTEM AWARENESS RAISING SEMINARIN CAMBODIAINTRODUCTION TO UPOVPeter Button (Vice Secretary-General, UPOV)February 24, 20121

PREVIEWI. About UPOVII Key Provisions of the 1991 Act of theUPOV ConventionIII. UPOV Website2


The International Union for the …Protection of New Varieties of Plants4

UPOV MISSION STATEMENT“To provide and promote an effectivesystem of plant variety protection,with the aim of encouraging thedevelopment of new varieties ofplants, for the benefit of society”5

Members of UPOV (green)Initiating States & organizations (brown)6

Development of Plant Variety ProtectionApplications: All UPOV14,00012,00010,0008,000Europe: EU 27Europe: Non-EU 27North AmericaAsia / PacificLatin AmericaAfricaNear / Middle East6,0004,0002,00001968197019721974197619781980198219841986198819901992199419961998200020022004200620087

• Plant breeding is long and expensiveBUT• Plant varieties can be easily and quicklyreproducedBreeders need protection to recoverinvestment10

PREVIEWI. About UPOVIIKey Provisions of the 1991 Act of theUPOV ConventionIII. UPOV Website11

SOME KEY PROVISIONS OFTHE UPOV CONVENTION (1991 Act)(a) Breeders and varieties(b) Genera and species(c) National treatment(d) Conditions of protection(e) Breeder’s right and exceptions12

BREEDER- the person who bred, ordiscovered and developed, a variety- the person who is the employer ofthe aforementioned person or who hascommissioned the latter’s work, wherethe laws of the relevant ContractingParty so provide, or- the successor in title of the first orsecond aforementioned person.14

BREEDERThe person whobred, or discoveredand developed, avariety15

There are no restrictions on whocan be considered to be abreeder under the UPOVsystem: a breeder might be anindividual, a farmer, aresearcher, a public institute, aprivate company etc.16


DISCOVERYOR FINDDEVELOPMENTIS NECESSARY18


SPECIES20

VARIETY21


GENERA AND SPECIESTO BE PROTECTED(1991 ACT: New members of the Union)• At least 15 plant genera or species onbecoming bound by the UPOV Convention• ALL plant genera and species within 10years23

NON-RESIDENT PBR APPLICATIONS(Selected Countries in Latin America)300250Number of Non-Resident PBR Applications200150100EcuadorColombia50ArgentinaMexicoChileBrazil0-4 -3 -2 -1 0 1 2 3 4Years after UPOV MembershipArgentina, Chile, Colombia, Ecuador and Mexico provide protection forall genera and species of the plant kingdom.24

BRAZIL: Applications filed by Non-Residents1401201008060Number of Non-ResidentapplicationsNumber of species for whichprotection available40200-2 -1 0 1 2 3 4 5 6 7 8 9 10Years after UPOV membership25

MEETING the CHALLENGE• Cooperation between Authorities can involve:– purchase of DUS Test Reports from otherAuthorities– bilateral arrangements to remove the need forduplication of DUS Tests– centralized DUS testing at regional or globallevel• Cooperation with Breeders• Support from UPOV– other members of the Union– UPOV Office26

COOPERATIONNumber of genera/speciesfor which varietiesprotected by members ofthe Union: > 3,000Practical DUSexperience offeredfor >2,600 generaand species(>10,000 titles granted/annum)Agreements forcooperation betweenmembers of the Union:> 1,40027


NATIONAL TREATMENT• National treatment, within the territory of amember of the Union, for nationals andresidents of any other members of the Union29


Criteria to be satisfied• NOVELTYCONDITIONS FOR GRANTING ABREEDER’S RIGHT…31

CONDITIONS FOR GRANTING ABREEDER’S RIGHT• Novelty : No sale or disposal within• 1 year - own territory• 4 years - other territory (6 years - trees/vine)• Exception for varieties of recent creation(new members / extension of protection)32

CONDITIONS FOR GRANTING ABREEDER’S RIGHTCriteria to be satisfied• NOVELTY• DISTINCTNESS• UNIFORMITY• STABILITY“DUS”…33

DISTINCTNESSApple: Fruit colorApple: Flower bud color34

UNIFORMITYA uniform varietyA variety lacking uniformity35

STABILITYStable varietyThe relevant characteristics of the variety do not change through the generations.Original material Generation 1 Generation 2 Generation NVariety not stable / Variété non stableThe relevant characteristics of the variety change through the generations. The plant grouping no longerretains the expression of the relevant characteristics of the original variety.Original material Generation 1 Generation 2 Generation N36

Nature of the DUS ExaminationThe “DUS Test” (field trial)37

CONDITIONS FOR GRANTING ABREEDER’S RIGHT… Other requirements• VARIETY DENOMINATION• FORMALITIES• PAYMENT OF FEESNO OTHER CONDITIONS!38

SOME KEY PROVISIONS OFTHE UPOV CONVENTION (1991 Act)(a) Breeders and varieties(b) Genera and species(c) National treatment(d) Conditions of protection(e) Breeder’s right andexceptions39

MINIMUM DURATION OF PROTECTIONTREES and VINES25 yearsOTHER PLANTS20 yearsTo be counted from the date of grant40

Authorization of breeder required for:• Production or reproduction (multiplication)• Conditioning for the purpose of propagation• Offering for sale• Selling or marketing• Exporting• Importing• Stocking for any of the above purposes…. for any protected variety41

MATERIAL COVERED• All propagating materialSEEDS42

MATERIAL COVERED• All propagating material• Harvested materialif obtained through unauthorized use ofpropagating material unless, reasonableopportunity for breeder to exercise his right• Certain products (optional)43

VARIETIES COVEREDVARIETIES:• not clearly distinguishable from theprotected variety• whose production requires therepeated use of the protectedvarietye.g. hybrids• which are essentially derived from theprotected variety …44

VARIETIES COVEREDPURPOSE:ESSENTIAL DERIVATIONto ensure sustainable plant breedingdevelopment by:– providing effective protection for thebreeder and– encouraging cooperation between breedersand developers of new technologies suchas genetic modification45

VARIETIES COVEREDEssentially Derived VarietiesMay be obtained for example by:• selection of a natural or induced mutant• selection of a somaclonal variant• selection of a variant individual from plantsof the initial variety• back-crossingcrossing• transformation by genetic engineering46

VARIETIES COVERED...a variety shall be deemed to be essentially derivedfrom another variety (“the initial variety”) when(i) it is predominantly derived from the initialvariety, or from a variety that is itself predominantlyderived from the initial variety, while retaining theexpression of the essential characteristics that resultfrom the genotype or combination of genotypes of theinitial variety,(ii) it is clearly distinguishable from the initialvariety and(iii) except for the differences which result from theact of derivation, it conforms to the initial variety inthe expression of the essential characteristics thatresult from the genotype or combination of genotypesof the initial variety.47

VARIETIES COVEREDCan EDVs be protected ?YESCan EDVs be commerciallyexploited?AUTHORIZATIONNEEDEDrequires the authorization of thePBR holder of the initial variety48

VARIETIES COVEREDInitial Variety ‘A’(PROTECTED)bred and protected by Breeder 1Essentially Derived Variety ‘B’bred and protected by Breeder 2- predominantly derived from ‘A’- retains expression of essential characteristics of ‘A’- clearly distinguishable from ‘A’- conforms to ‘A’ in essential characteristics(except for differences from act of derivation)Commercialization:authorization ofBreeders 1 and 2 requiredEssentially Derived Variety ‘C’bred and protected by Breeder 3- predominantly derived from ‘A’ or ‘B’- retains expression of essential characteristics of ‘A’- clearly distinguishable from ‘A’- conforms to ‘A’ in essential characteristics(except for differences from act of derivation)Commercialization:authorization ofBreeders 1 and 3 required(authorization of Breeder 2not required)49

VARIETIES COVEREDInitial Variety ‘A’(NOT PROTECTED)bred and protected by Breeder 1Essentially Derived Variety ‘B’bred and protected by Breeder 2- predominantly derived from ‘A’- retains expression of essential characteristics of ‘A’- clearly distinguishable from ‘A’- conforms to ‘A’ in essential characteristics(except for differences from act of derivation)Commercialization:authorization ofBreeder 2 required(authorization of Breeder 1not required)Essentially Derived Variety ‘C’bred and protected by Breeder 3- predominantly derived from ‘A’ or ‘B’- retains expression of essential characteristics of ‘A’- clearly distinguishable from ‘A’- conforms to ‘A’ in essential characteristics(except for differences from act of derivation)Commercialization:authorization ofBreeder 3 required(authorization of Breeder1and 2 not required)50

EXCEPTIONS TO THEBREEDER’S RIGHT51

EXCEPTIONS TO THE BREEDER’S RIGHTCompulsoryActs done:• privately and for non-commercialpurposes• for experimental purposes• breeding other varieties (breeder’sexemption”)OptionalFarm-saved seed52

EXCEPTIONS TO THE BREEDER’S RIGHTCompulsoryActs done:• privately and for non-commercialpurposes• for experimental purposes• breeding other varieties(“breeder’s s exemption”)53

THE BREEDER’S EXEMPTION: ExampleProtectedVariety AVariety BBreeder 1Breeder 2Breeder 3Authorizationof Breeder 1NOTrequiredVariety CAuthorizationof Breeder 2NOTrequiredAuthorizationof Breeder 1NOTrequired*Authorizationof Breeder 2NOTrequiredCommercialization* Except for:(i) varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety,(ii) varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and(iii) varieties whose production requires the repeated use of the protected variety.54

ADVANTAGES OF THEBREEDER’S EXEMPTION• Germplasm sources remain accessible tothe community of breeders• Genetic basis for plant improvement isbroadened and is actively conserved• Variety improvement is enhanced• Opportunity for all breeders to share inbenefits of breeding activities55

EXCEPTIONS TO THE BREEDER’S RIGHTCompulsoryActs done:• privately and for non-commercial purposes• for experimental purposes• breeding other varieties(breeder’s exemption”)56

EXCEPTIONS TO THE BREEDER’S RIGHT• Compulsory(i) Acts done privately and for non-commercial purposes• amateur gardenerActs Possibly falling within the scope of the exception57

EXCEPTIONS TO THE BREEDER’S RIGHT• Compulsory(i) Acts done privately and for non-commercial purposes• propagation of a variety by a farmer exclusively for the production ofa food crop to be consumed entirely by that farmer and thedependents of the farmer living on that holdingtherefore“subsistence farming” where these constitute acts done privatelyand for non-commercial purposes, may be considered by a UPOVmember to be excluded from the scope of the breeder’s rightActs Possibly falling within the scope of the exception58

EXCEPTIONS TO THE BREEDER’S RIGHTCompulsoryActs done:• privately and for non-commercialpurposes• for experimental purposes• breeding other varieties (breeder’sexemption”)OptionalFarm-saved seed59

EXCEPTIONS TO THE BREEDER’S RIGHTA Contracting Party may restrict breeder’srights in order to permit farmers to use:• for propagating purposes on their own holdingsthe product of the harvest• obtained on their own holdingsfrom the protected variety• within reasonable limits• subject to safeguarding legitimate interests ofthe breeder[Article 15(2) and Recommendation of theDiplomatic Conference]60

EXCEPTIONS TO THE BREEDER’S RIGHTProduct of the harvest:Product of the harvest can be used for propagating purposessmall grain cereals:harvested product may = propagating materialFruit, ornamentals and vegetables:harvested product may ≠ propagating material61

EXCEPTIONS TO THE BREEDER’S RIGHTReasonable limits and safeguarding thelegitimate interest of the breederPossible factors:- Type of variety- Size of holding/crop area/crop value- Proportion/amount of harvested materialReview over time- Remuneration to the breeder62

HOW TO BECOME AMEMBER OF UPOVState/Intergovernmental Organizationmust:• Have a law which conforms to UPOVConvention• Ask advice of the Council of UPOV• If advice positiveadvice positive: deposit instrumentof accession63


http://www.upov.int65

THANK YOU66

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