The International Union for the Protection of New Varieties of Plants or UPOV () is a treaty body (non-United Nations intergovernmental organization) with headquarters in Geneva, Switzerland. Its objective is to provide an effective system for plant variety protection. It does so by defining a blueprint regulation to be implemented by its members in national law. The expression UPOV Convention also refers to one of the three instruments that relate to the union, namely the 1991 Act of the UPOV Convention (UPOV 91), 1978 Act of the UPOV Convention (UPOV 78) and 1961 Act of the UPOV Convention with Amendments of 1972 (UPOV 61).
History UPOV was established by the International Convention for the Protection of New Varieties of Plants (UPOV 61). The convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991.
The initiative for the foundation of UPOV came from European breeding companies, who called for a conference to define basic principles for plant variety protection in 1956. The first version of the UPOV convention was agreed on in 1961 by 12 European countries. By 1990 still only 19 countries were part of the convention, with South Africa being the only country from the Southern Hemisphere. From the mid-1990s more and more countries from Latin America, Asia and Africa joined the convention. A reason for this development might be the TRIPS-Agreement that obliged WTO members to introduce plant variety protection in national law. Later, many countries have been obliged to join UPOV through specific clauses in bilateral trade agreements, in particular with the EU, USA, Japan and EFTA. The TRIPS-Agreement doesn't require adherence to UPOV but gives the possibility to define a sui generis system for plant variety protection. In contrast, clauses in free trade agreement are more comprehensive and typically require adherence to UPOV.
While the earlier versions of the convention have been replaced, UPOV 78 and UPOV 91 coexist. Existing members are free to decide whether they want to ratify UPOV 91 or stay with UPOV 78, whereas new members have to adhere to the more restrictive version from 1991.
Membership As of December 3, 2021 two intergovernmental organisations and 76 countries and were members of UPOV:List of UPOV Members published by (PDF ) African Intellectual Property Organisation, Albania, Argentina, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Egypt, Estonia, European Union,The European Community was the first intergovernmental organization to join; The European Union is its legal successor. Finland, France, Georgia,UPOV Notification No. 106, International Convention for the Protection of New Varieties of Plants, Accession by Georgia, October 29, 2008. Germany, Ghana, Guatemala, Hungary, Iceland, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, Moldova, Montenegro, Morocco, the Netherlands, New Zealand, Nicaragua, North Macedonia, Norway, Oman, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tanzania, Trinidad and Tobago, Tunisia, Turkey, Ukraine, the United Kingdom, the United States of America (with a reservation), Uruguay, Uzbekistan, and Viet Nam.UPOV web site, 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 May 12, 2009. Consulted on June 26, 2009.
For a country or intergovernmental organisation to become member, it needs to implement the requirements of the actual convention in national law. UPOV's secretariat analyises the regulation of plant variety protection in national law and writes a recommendation to the council whether or not the applicant shall be granted membership. In the past several countries have been refused memberships because their national plant variety protection laws granted exceptions for subsistence farmers to reuse and exchange seeds.
In addition, a large number of countries (e.g. Pakistan), intergovernmental organisations (e.g. European Free Trade Association) and international non-governmental organisations (e.g. International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties) have observer status.
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 . 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 (D), that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity (U) and stability (S), 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. The UPOV offers general guidelines for DUS testing.
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 other intellectual property rights, such as patents, even though there are important differences. Their purpose is to create a temporary monopoly on a plant variety, to allow its breeder to redeem the costs he invested to create this innovation - typically the creation of a new variety takes 10 to 15 years and implies a substantial investment. 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.
In the 1991 convention there are four exceptions to the rights of the breeder owning a plant variety:
Breeders exception: Even if a variety is protected it can be freely used by an other breeder as a source for new varieties, without the authorization of the owner of the original variety. With the introduction of the 1991 convention this exception has been narrowed down to exclude "essentially derived varieties". Farmers exception: In the 1978 Convention the reproduction of seeds, as well as their exchange with other farmers is implicitly allowed, because the exclusive right of the breeder only extend to the production for the purpose of marketing. With the 1991 Convention the scope of breeders rights were expanded to include the multiplication of a variety. However, there still is an optional exception that can be included in national legislation to allow reproduction of seeds of certain crops by farmers, but only "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder" which practically means that the farmers is obliged to pay license fees to the breeder. The only members of UPOV 91 allowing the free reproduction of seeds for some species by farmers are Switzerland and United States of America. UPOV secretariat never assessed if this implementation is in line with the convention as these countries already member of UPOV 1978 and national laws are only analysed for new members and not for existing members who update from UPOV 78 to UPOV 91. Exception for private non-commercial use: While free private use is implicitly allowed in UPOV 78, in UPOV 91 a mandatory explicit exception has been introduced. It allows the reproduction of protected varieties for private use, by amateur gardeners as well as by subsistence farmers. However, the exception only applies exclusively for the production of a food crop to be consumed by that farmer or gardener. In any case the exchange or gift of seeds or propagating material of protected varieties are prohibited. Exception for research: Acts done for experimental purpose are excluded from the scope of breeders rights UPOV 91, something that was implicit in UPOV 78.
The 1991 Convention specifies that the breeder's right must be granted for at least 20 years from grant date for perennial crops and at least 25 years in the case of varieties of trees or vines. In the 1978 convention minimum duration of breeders rights are 15 years for perennials and 18 years for trees and vines.
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.
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Conflicts between breeders' rights and peasants' rights