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

The UPOV Convention was first signed in 1961 to provide a form of legal protection of plant varieties for western European countries. It seeks to protect new varieties of plants in the interests of both agricultural development and plant breeders. Though it did not introduce patents, UPOV sought from the outset to provide incentives to the private sector to engage in commercial plant breeding by introducing so-called plant breeders’ rights. Despite the distinction between patents and plant breeders' rights, the two share several basic characteristics: they provide exclusive commercial rights to holders, reward an inventive process, and are granted for a limited period of time after which they pass into the public domain.

More specifically, UPOV recognizes the exclusive rights of individual plant breeders to produce or reproduce protected varieties, to condition them for the purpose of propagation, to offer them for sale, to commercialise them, including exporting and importing them, and to stock them in view of production or commercialisation[1]. Protection under UPOV is granted for developed or discovered plant varieties which are new, distinct, uniform and stable[2]. The concept of novelty under UPOV is noteworthy because it differs from the approach under patent law. Under UPOV, a variety is novel if it has not been sold or otherwise disposed of for purposes of exploitation of the variety. Novelty is thus defined in relation to commercialisation and not by the fact that the variety did not previously exist. UPOV gives a specific time frame for the application of novelty. To be novel, a variety must not have been commercialised in the country where the application is filed for more than a year before the application and in other member countries for more than four years[3]. The criterion of distinctness requires that the protected variety should be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application. Stability is obtained if the variety remains true to its description after repeated reproduction or propagation. Finally, uniformity implies that the variety remains true to the original in its relevant characteristics when propagated.

The UPOV Convention has been revised several times since 1961 – in 1972, 1978 and 1991. At present some states are parties to the 1978 Act while some are parties to the 1991 Act. Non-member states which wish to join the UPOV regime at present must join under the 1991 Act but there is no obligation for existing member states to ratify the latest version of the convention if they do not wish to.

The revisions to the Convention have generally served to progressively strengthen plant breeders' rights. The 1991 version, for instance, extends breeders' rights to all production and reproduction of their varieties and to species as well as general and specific plant varieties. This now also includes so-called ‘essentially derived varieties’[4]. Protection of an essentially derived variety is obtained if the variety is predominantly derived from the initial variety and retains its essential characteristics. It must also be clearly distinguishable from the initial variety while confirming to the initial variety in the expression of the essential characteristics.

One of the main distinguishing features of the original UPOV regime is that the recognition of plant breeders' rights is circumscribed by two main exceptions. Firstly, under the 1978 version of the Convention, the so-called ‘farmer’s privilege’ allows farmers to re-use propagating material from the previous year's harvest and to freely exchange seeds of protected varieties with other farmers. Secondly, plant breeders' rights do not extend to acts done privately and for non-commercial purposes or for experimental purposes and do not extend to the use of the protected variety for the purpose of breeding other varieties and the right to commercialise such other varieties. The 1991 version of the Convention, by strengthening plant breeders' rights, has conversely limited existing exceptions. The remaining exceptions include acts done privately and for non-commercial purposes, experiments, and for the breeding and exploitation of other varieties. Breeders are now granted exclusive rights to harvested materials and the distinction between discovery and development of varieties has been eliminated[5]. Further, the right to save seed is no longer guaranteed as the farmer’s privilege has been made optional.

UPOV provides that plant breeders’ rights are time-bound intellectual property rights. The period of protection has evolved over time but always with the idea that the rights conferred expire at the end of a specific period of protection. Under UPOV-1978, the period of protection is of a minimum of 15 years. For vines, forest trees, fruit trees and ornamental trees, the minimum is 18 years[6]. UPOV-1991 extends the minimum period from 15 to 20 years. For trees and vines, the minimum is of 25 years[7].

As noted, plant breeders' rights were first conceived as an alternative to patent rights. As a result, UPOV originally provided that the two kinds of intellectual property rights should be kept separate. Under UPOV-1978, member states can, for instance, only offer protection through one form of intellectual property rights. The grant of a PBR on a given variety implies that no other intellectual property right can be granted to the same variety. This restriction has been eliminated under UPOV-1991 and double protection is now allowed.

The UPOV Convention was first negotiated and ratified mostly by developed countries. It is only since the adoption of the TRIPS Agreement that more developing countries have progressively joined the Convention[8]. Even though developing countries did not participate in the development of this legal regime which is tailored for mechanized and large-scale agriculture, the rationale for joining it is that the UPOV regime is generally held to fulfil the conditions of a sui generis system as required under Article 27.3.b of the TRIPS Agreement[9].