International Union for the Protection of New Varieties of Plants (UPOV)

Union Internationale pour la Protection des Obtentions Végétales

ByOnkar 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 TRIPSProtection and enforcement of intellectual property rights in order to reduce distortion and impediments to international trade. UPOVTo 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 Conservation of biological diversity, sustainable use of its elements and benefit sharing of the advantages flowing from exploitation of these genetic resources. ITPGRFAConservation 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.

Minimum Standard for IPRs

Instrument for PBR

Sovereign rights over GM+ABS

Instrument for PGR+ABS

Introduction http://www.upov.int/

Provides an international system for the protection of new plant varieties in recognition of the IPRs of plant breeders.

India has observer status

Membershiphttp://www.upov.int/export/sites/upov/members/en/pdf/pub423.pdf

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

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.

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.

New Denomination

Fees

Distinct, Uniform, Stable (DUS)

No other conditions

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

2015 2016

2017 2018 20192014

Crops44

Tree /Vines

66

2020

$ $$$$$$$$

Crops1 1

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(ii)Products made directly from harvested material

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.

Propagating material

Harvested material Products

Compulsory Provision

Optional Provision

Example on exercise of Right

Duration of the Protection & Provisional Protection

Duration of Protection; This period starts from the date of grant.

Provision Protection; 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.

Trees & vines

25 years

Other plants 20 years Old members

At the date of joining;(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.

Gen

era

&

spec

ies

Minimum

choice

Exceptions to breeder rights

.

UnderstandingAll 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.

COMPULSORY OPTIONAL

Breeder’s Exemption Experimental Private and Non-

Commercial Farm Saved Seeds

EDV

VARIETY

Nullity and Cancellation of PBRNullity Cancellation

Reasons A breeder’s right shall be declared null and void if: (i) Not New or Distinct.(ii) PBR granted based on information and documents furnished, the variety was not uniform or stable at the time of the grant of right.(iii) Not an entitled breeder .

A breeder’s right may be cancelled if:

(i) No longer Uniform or Stable. (ii) Information, documents or material not provided.(iii) Fail to pay fees.(iv)Fail to propose alternate denomination.Within prescribed time

Understanding The PBR was never valid, granted by mistake.

PBR rightfully granted, it simply 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

No other reasons

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.

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Questions??