International Union for the Protection of New Varieties of Plants

The International Union for the Protection of New Varieties of Plants or UPOV (French: "Union internationale pour la protection des obtentions végétales") is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Kamil Idris.

UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. By codifying intellectual property for plant breeders, UPOV aims to encourage the development of new varieties of plants for the benefit of society.

For plant breeders' rights to be granted, the new variety must meet four criteria under the rules established by UPOV.
#The new plant must be novel, which means that it must not have been previously marketed in the country where rights are applied for.
#The new plant must be distinct from other available varieties.
#The plants must display homogeneity.
#The trait or traits unique to the new variety must be stable so that the plant remains true to type after repeated cycles of propagation.

Protection can be obtained for a new plant variety how ever it has been obtained, e.g. through conventional breeding techniques or genetic engineering.

Members

As of September 2008, the following 65 countries were members of UPOV: Albania, Argentina, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, the People's Republic of China, Colombia, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, European Community, [ The European Community was the first intergovernmental organization to join. ] Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, Moldova, Morocco, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United States of America, Uruguay, Uzbekistan, and Viet Nam. [ UPOV web site, [http://www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf "Members of the International Union for the Protection of New Varieties of Plants, International Convention for the Protection of New Varieties of Plants, UPOV Convention (1961), as revised at Geneva (1972, 1978 and 1991) Status on September 1, 2008"] . Consulted on September 29, 2008. ]

System of protection

The Convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union. These concepts include UPOV System of Protection. [http://www.upov.int/en/about/upov_system.htm http://www.upov.int/en/about/upov_system.htm] . 2002. ] :

*The criteria for new varieties to be protected: novelty, distinctness, uniformity, and stability.
*The process for application for a grant
*Intellectual property rights conferred to an approved breeder
*Exceptions to the rights conferred to the breeder
*Required duration of breeder's right
*Events in which a breeder's rights must be declared null and void

In order to be granted breeder's rights, the variety in question must be shown to be new. This means that the plant variety cannot have previously been available for more than one year in the applicant’s country, or for more than four years in any other country or territory. The variety must also be distinct, that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity and stability, mean that individual plants of the new variety must show no more variation in the relevant characteristics than one would naturally expect to see, and that future generations of the variety through various propagation means must continue to show the relevant distinguishing characteristics.

A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without waiting for a result from previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority.

The rights conferred to the breeder are similar to those of copyright in the United States, in that they protect both the breeder's financial interests in the variety and his recognition for achievement and labor in the breeding process. The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder also has the right to name the new variety, based on certain guidelines that prevent the name from being deliberately misleading or too similar to another variety's name.

There are explicit exceptions to the rights of the breeder, known as the "breeder's exemption clause", that make it unnecessary to receive authoriziation for the use of a protected variety where those rights interfere in the use of the variety for a private individual's non-monetary benefit, or the use of the variety for further research. For example, the breeder's rights do not cover the use of the variety for subsistence farming, though they do cover the use of the variety for cash crop farming. Additionally, the breeder's authorization is not required to use a protected variety for experimental purposes, or for breeding other varieties, as long as the new varieties are not "essentially derivative" of the protected variety.

The Convention specifies that the breeder's right must be granted for at least 20 years from grant date, except in the case of varieties of trees or vines, in which case the duration must be at least 25 years.

Finally, there are provisions for how to negate granted breeders' rights if the rights are determined to be unfounded. That is, if it is discovered after the application has been granted that the variety is not actually novel or distinct, or if it is discovered to not be uniform or stable, the breeder's rights are nullified. In addition, if it is discovered that the person who applied for protection of the variety is not the actual breeder, the rights are nullified unless they can be transferred to the proper person. If it is discovered after a period of protection that the variety is no longer uniform and stable, the breeder's rights are canceled.

UPOV and Genetically Modified Plant Varieties

The UPOV has been updated several times to reflect changing technology and increased understanding of how plant variety intellectual property protection must work. The last revision was in 1991, and specifically mentioned genetic engineering only insofar as it is a method of creating variation http://www.upov.int/en/publications/conventions/1991/act1991.htm UPOV Convention: 1991 Act, Article 14, Section 5c. 1991.] . Under the UPOV Convention alone, genetically modified crops and the intellectual property rights granted to them are no different than the intellectual property rights granted for traditionally bred varieties. It is important to note that this necessarily includes the ability to use protected varieties for subsistence farming and for research.

In October 2004, two joint Symposia were held in Geneva with the World Intellectual Property Organization (WIPO). These Symposia were the WIPO-UPOV Symposium on Intellectual Property Rights in Plant Biotechnology (24 October 2003) and the WIPO-UPOV Symposium on the Co-Existence of Patents and Plant Breeders’ Rights in the Promotion of Biotechnological Developments (25 October 2003). No new policy was created at either of these events, but a consensus emerged that both patents and plant-breeders' rights must combine to promote plant biotechnology. http://www.upov.int/en/documents/Symposium2003/intro_index.html WIPO-UPOV Symposium. 2003.]

As a policy matter, the UPOV is known to consider open and un-restricted access to the genetic resources of protected plant varieties to be important to the continued development of new varieties. http://www.upov.int/en/about/pdf/cbd_respons_oct_31_2005.pdf Jordens, Rolf. Access to Genetic Resources and Benefit-Sharing. October 31, 2005. p 4.] This opinion is indicated in the "breeders' exemption" clause of the Convention, as described above, and was reinforced in October of 2005 in a reply to a notification from the Convention on Biological Diversity.

In April 2003, the Convention on Biological Diversity asked the UPOV for comment on the use of Genetic Use Restriction Technologies (also known as terminator genes) as they relate to the promotion of intellectual property rights. In the summary of their response, the UPOV stated that intellectual property protection is necessary because breeders must have the ability to recoup their money and labor investment in creating new varieties, and in that light, plants with terminator genes may still be accepted for protection if they meet the other criteria. However, the UPOV comment states that the Convention and its system of protection is sufficient to protect intellectual property rights, and that with proper legal protections in place, technologies like terminator genes should not be necessary. http://www.upov.int/en/about/pdf/gurts_11april2003.pdf Position of the International Union for the Protection of New Varieties of Plants (UPOV) concerning Decision VI/5 of the Conference of the Parties to the Convention on Biological Diversity (CBD). April 11, 2003. p 2.]

References and notes

See also

* Community Plant Variety Office (CPVO)

External links

* [http://www.upov.int/index.html UPOV Homepage]