DL101: General Course on Intellectual Property Summary for

Module 10 - Protection of New Varieties of Plants

Sustained and long-term breeding efforts are only worthwhile if there is a chance
to be rewarded for the investment made. To recover the costs of this research and
development, the breeder may seek protection to obtain exclusive rights for the
new variety.

At the same time, a new variety, once released, can often be easily reproduced by
others. The original breeder is thus deprived of the fair opportunity to benefit
from his or her investment. It is, therefore, critical to provide an effective system of
plant variety protection, which encourages the development of new varieties of
plants thereby benefiting the breeder and society at large.

The UPOV system provides an effective mechanism of protection for breeders in

both the public and private sectors and facilitates public-private partnerships. It is
a system that is equally relevant for individual breeders, SMEs and larger breeding
institutes/enterprises. Most countries and intergovernmental organizations which
have introduced a plant variety protection (PVP) system have chosen to develop
their system in accordance with the UPOV Convention and to become a UPOV
member.

Plant variety protection supports long-term investment in breeding and

provides a framework for investment in the delivery of improved varieties
suited to farmers’ and growers’ needs. In order to obtain protection, the new
variety must be:

 New
 “the variety shall be deemed to be new if, at the date of filing of the
application for a breeder’s right, propagating or harvested material of the
variety has not been sold or otherwise disposed of to others, by or with the
consent of the breeder, for purposes of exploitation of the variety”
 “(i) in the territory of the Contracting Party in which the application has
been filed earlier than one year before that date” and
 “(ii) in a territory other than that of the Contracting Party in which the
application has been filed earlier than four years or, in the case of trees
or of vines, earlier than six years before the said date.”
 Distinct: The variety shall be deemed to be 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.
 Uniform : “The variety shall be deemed to be uniform if, subject to the variation
that may be expected from the particular features of its propagation, it is
sufficiently uniform in its relevant characteristics.”
 Stable: “The variety shall be deemed to be stable if its relevant characteristics
remain unchanged after repeated propagation or, in the case of a particular
cycle of propagation, at the end of each such cycle.” and
 Have a suitable denomination: The UPOV Convention (Article 20) requires
that a variety shall be designated by a variety denomination, which will be its
generic designation

The minimum period of protection of the breeder’s right, under Article 19 of the
1991 Act of the UPOV Convention, is designed to ensure an adequate incentive for
the long-term investment that is necessary in plant breeding. The term is:

 25 years for trees and vines

 20 years for other plants

The UPOV Convention establishes compulsory exceptions and an optional exception

to the breeder’s right.

Compulsory Exceptions

The compulsory exceptions are established in Article 15(1). The following acts are
not covered by the breeder’s right: acts done privately and for non-commercial
purposes; acts done for experimental purposes, and acts done for the purpose of
breeding other varieties.

Optional Exception

Article 15(2) of the UPOV Convention provides an optional exception, which

permits UPOV members to exclude, for example, farm saving of seed from the
scope of the breeder’s right, subject to certain conditions. This exception covers
three aspects: the farmer’s holding—where it can take place; the product of the
harvest—the material involved; and the limits and safeguarding of the legitimate
interest of the breeder.