International Union for the Protection of

New Varieties of Plants (UPOV)

Union Internationale pour la Protection des Obtentions Végétales

By
Onkar Singh,
Onkar.singh9999@gmail.com
 Outline

 International instruments

 Introduction & Membership -UPOV

 Key provisions - UPOV

 Entitlement to Protection
 Conditions of Protection
 Scope of Breeders’ rights; Acts and Materials
 Duration of Protection & Provisional Protection
 Exceptions to Breeders’ rights
 Nullity & Cancellation of Breeders’ Rights

 Conclusion statements
 Questions
 International instruments interfacing under IP
TRIPS Minimum Standard for IPRs
Protection and enforcement of intellectual property rights in order to reduce
distortion and impediments to international trade.

UPOV Instrument for PBR

To provide and promote an effective system of plant variety protection, with the aim
of encouraging the development of new varieties of plants, for the benefit of society.

CBD/Nagoya Protocol Sovereign rights over GM+ABS

Conservation of biological diversity, sustainable use of its elements and benefit sharing
of the advantages flowing from exploitation of these genetic resources.

ITPGRFA Instrument for PGR+ABS

Conservation and sustainable use of plant genetic resources for food and agriculture
and the fair and equitable sharing of the benefits arising out of their use for
sustainable agriculture and food security.
Introduction http://www.upov.int/

Provides an
international
system for the
protection of
new plant
varieties in
recognition of
the IPRs of
plant
breeders.
 Membership
http://www.upov.int/export/sites/upov/members/en/pdf/pub423.pdf

• 72 members (Green). EU and Organisation Africaine de la Propriété Intellectuelle (OAPI).

India has observer status

5
 Entitlement to Protection
 Who can apply for PVP ? Breeder

 Who is breeder?
 “the person who bred, or discovered and developed, a variety, the person who is the
employer of the aforementioned person or who has commissioned the latter’s work,
where the laws of the relevant Contracting Party so provide, or the successor in title of
the first or second aforementioned person, as the case may be.”

 Understanding
 Concept of person includes both physical and legal person i.e. companies.
 Breeder term is defined in broad and inclusive manner.
 No restriction on techniques used for breeding.
 Discovery would not entitle the person for protection. Development mandatory.
 Conditions of Protection
 (1) The breeder’s right shall be granted where the variety is: (i) new, (ii) distinct, (iii)
uniform and, (iv) stable.
 (2) The grant of the breeder’s right shall not be subject to any further or different
conditions, provided that the variety is designated by a denomination in accordance
with the provisions of Article 20, that the applicant complies with the formalities
provided for by the law of the Contracting Party with whose authority the
application has been filed and that he pays the required fees.

No other conditions
 Understanding
 The grant of protection shall not be subject to any further conditions, provided that
the applicant complies with all the formalities and pays the required fees.
 The DUS test is based mainly on growing tests.
 Conditions for protection; 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”

Country I Country O
$ $$$$$$$$
2014 2015 2016 2017 2018 2019 2020
1 Crops 1
4 4
6 Crops 6

Tree /Vines
 Conditions for protection; 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”

Understanding
 A variety can be considered as clearly distinguishable, if the difference in
characteristics are (a) consistent and (b) clear.
 Common knowledge is not restricted to national or geographical borders.
 Conditions for protection; 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”

Understanding
 The notion of uniformity ensures that the variety can be defined as far as is it
necessary for the purpose of protection. The criterion for uniformity does not
seek absolute uniformity.
 Conditions for protection; Stability
“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”

 Understanding:

 Relevant characteristic don’t change through the generations.

 Scope of breeder rights; Acts and Materials Covered
 Right to exclude others from performing certain acts; (a)Production or
reproduction (b)Conditioning for the purpose of propagation (c) Offering for sale
(d) Selling or other marketing (e)Exporting (f) Importing (g)Stocking for any of the
above purposes .
 Materials covered under PBR;
(i) Propagating material
(ii) Harvested material Compulsory Provision

(ii)Products made directly from harvested material Optional Provision

Cascade Effect: Breeders can only exercise their right in relation to the harvested
material if they have not been able to exercise their right in relation to the
propagating material, and can only exercise their right in relation to a product
made directly from the harvested material if they were unable to exercise their right
in relation to the harvested material.
Example on exercise of Right
 Duration of the Protection & Provisional Protection
 Duration of Protection;
Trees & vines 25 years
 This period starts from the date of grant.
Other plants 20 years
Old members At the date of joining;
Minimum
Genera & species

(i) All plant genera and species and,

(ii) at the latest by the expiration 5 Years from
the joining date

New members At the date of joining

(i) Minimum 15 plant genera or species and,
(ii) At the latest by the expiration 10 years from the
joining date, to all plant genera and species.

 Provision Protection;
choice
 To safeguard the interests of breeder
 During the period between the filing or the publication of the application for the
grant of a breeder's right and the grant of that right.
 Equitable remuneration from unauthorized use by any person.
Understanding
 Provisional protection takes effect only if protection is granted, i.e., if the
application is rejected, provisional protection will not be available.
 Exceptions to breeder rights

. COMPULSORY OPTIONAL

Breeder’s
Experimental Private and Non-Commercial Farm Saved Seeds
Exemption

VARIETY
EDV

Understanding
All the above mentioned activities don’t required authorization from Breeder.
Protected varieties can be used to develop New Variety varieties. But, not to develop
EDV.
Non-private acts, even where for non-commercial purposes, may be outside the scope
of the exception. Furthermore, the wording indicates that private acts which are
undertaken for commercial purposes do not fall within the exception.
Nullity and Cancellation of PBR
Nullity Cancellation
Reasons A breeder’s right shall be declared A breeder’s right may be cancelled if:
null and void if:
(i) Not New or Distinct. (i) No longer Uniform or Stable.
(ii) PBR granted based on (ii) Information, documents or
information and documents material not provided.
furnished, the variety was not (iii) Fail to pay fees.
uniform or stable at the time of (iv)Fail to propose alternate
the grant of right. denomination.
(iii) Not an entitled breeder . Within prescribed time
No other reasons
Understanding The PBR was never valid, granted PBR rightfully granted, it simply
by mistake. ceases to exist due to lack of
compliance.
Effect It have retroactive effect. No retroactive effect; takes effect
from given date, i.e. the date of the
cancellation
Conclusion statements
 The UPOV Convention provides the basis for UPOV members to encourage
plant breeding by granting PBR to new plant varieties an intellectual property
right.
 The UPOV Convention specifies (i) Scope of PBR, (ii) the acts that require the
breeder’s authorization, (iii) the acts that do not require the breeder’s
authorization, (iv) the conditions of grant and, (v) Duration of grant.


Thank yoU for Paying attentiOn and Valuable time
provided!!!!  

Questions??