Summary of the role and functions of the Union
by KATZAROV S.A., Patent & Trademark Attorneys,
European Patent Attorneys, Geneva, Switzerland
Definition and origins of UPOV
The International Union for the Protection of New Varieties of Plants, known as “UPOV,” is an intergovernmental organization with headquarters in Geneva. The acronym UPOV is derived from the French name of the organization, “Union internationale pour la protection des obtentions végétales”.
UPOV has been established by the International Convention for the Protection of New Varieties of Plants (the “UPOV Convention”), which was signed in Paris in 1961. The Convention entered into force in 1968. It was revised in Geneva in 1972, 1978 and 1991. The 1978 Act entered into force on November 8, 1981. The 1991 Act entered into force on April 24, 1998.
The purpose of the UPOV Convention
The purpose of the UPOV Convention is to ensure that the member States of the Union acknowledge the achievements of breeders of new plant varieties, by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles. To be eligible for protection, varieties have to be distinct from existing, commonly known varieties, sufficiently uniform, stable and new in the sense that they must not have been commercialized prior to certain dates established by reference to the date of the application for protection.
The effect of Plant Breeders’ rights
Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation.
Under the 1978 Act, the minimum scope of the plant breeder’s right requires that the holder’s prior authorization is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder’s authorization is required. Exceptionally, but only where the holder has had no reasonable opportunity to exercise his right in relation to the propagating material, his authorization may be required in relation to any of the specified acts done with harvested material of the variety.
Like all intellectual property rights, plant breeders’ rights are granted for a limited period of time, at the end of which varieties protected by them pass into the public domain. The rights are also subject to controls, in the public interest, against any possible abuse. It is also important to note that the authorization of the holder of a plant breeder’s right is not required for the use of his variety for research purposes, including its use in the breeding of further new varieties.
The agricultural, horticultural and forestry industries and the final consumer all ultimately gain from the additional stimulus that plant breeders’ rights give to the creation of new varieties that are better suited to satisfy man’s needs.
Why new varieties of plants are protected
Protection is afforded to new varieties of plants both as an incentive to the development of agriculture, horticulture and forestry and to safeguard the interests of plant breeders. Improved varieties are a necessary, and very cost-effective, element in the quantitative and qualitative improvement of the production of food, renewable energy and raw material.
Breeding new varieties of plants requires a substantial investment in terms of skill, labor, material resources, money and time. The opportunity to obtain certain exclusive rights in respect of his new variety provides the successful plant breeder with a better chance of recovering his costs and accumulating the funds necessary for further investment. In the absence of plant breeders’ rights, those aims are more difficult to achieve since there is nothing to prevent others from multiplying the breeder’s seed or other propagating material and selling the variety on a commercial scale, without recognizing in any way the work of the breeder.
Reasons for becoming a member of UPOV
By becoming a member of UPOV, a State signals its intention to protect plant breeders on the basis of principles that have gained worldwide recognition and support. It offers its own plant breeders the possibility of obtaining protection in the other member States and provides an incentive to foreign breeders to invest in plant breeding and seed production on its own territory.
It has the opportunity through membership of UPOV to share in and benefit from the combined experience of the member States and to contribute to the worldwide promotion of plant breeding. A constant effort of intergovernmental cooperation is necessary to accomplish such an aim and this requires the support of a specialized secretariat.
The functions of UPOV
The main activities of UPOV are concerned with promoting international harmonization and cooperation, mainly between its member States, and with assisting countries in the introduction of plant variety protection legislation. A smoothly operating international trade requires uniform, or at least mutually compatible, rules.
The fact that the UPOV Convention defines the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union leads, in itself, to a great degree of harmony in those laws and in the practical operation of the protection systems. Such harmony is enhanced, firstly, through specific activities undertaken within UPOV leading to recommendations and model agreements and forms and, secondly, through the fact that UPOV serves as a forum to exchange views and share experiences.
UPOV has established a detailed set of general principles for the conduct of the examination of plant varieties for distinctness, uniformity and stability, and more specific guidelines for some 160 genera and species. These normative documents are progressively updated and extended to further genera and species. Their use is not limited to plant variety protection but extends to other areas such as national listing and seed certification.
The most intense cooperation between member States concerns the examination of plant varieties. It is based on arrangements whereby one member State conducts tests on behalf of others or whereby one member State accepts the test results produced by others as the basis for its decision on the grant of a breeder’s right. Through such arrangements member States are able to minimize the cost of operating their protection systems and breeders are able to obtain protection in several countries at relatively low cost.
The UPOV member States and the UPOV Secretariat maintain contacts with and provide legal, administrative and technical assistance to the governments of a growing number of States expressing interest in the work of the Union and in the idea of plant variety protection. Regular contacts are also maintained with many intergovernmental and international non-governmental organizations.
Information on the development of plant variety protection legislation throughout the world is published in Plant Variety Protection (UPOV publication No. 438(E)).
Government and Management of UPOV
The Council of UPOV consists of the representatives of the members of the Union. Each member that is a State has one vote in the Council. Under the 1991 Act, certain intergovernmental organizations may also become members of the Union. The Council is responsible for safeguarding the interests and encouraging the development of the Union and for adopting its program and budget. The Council meets once each year in ordinary session. If necessary, it is convened to meet in extraordinary session. The Council has established a number of Committees, which meet once or twice a year. The Secretariat of UPOV (called “the Office of the Union”) is directed by a Secretary-General. Under a cooperation agreement with the World Intellectual Property Organization (WIPO), an organization belonging to the United Nations system, the Director General of that Organization is the Secretary-General of UPOV. He is assisted by a Vice Secretary-General. The Office has a small international staff.