UPOV CONVENTION A BRIEF INTRODUCTION:   

1. Plant Variety Protection based on UPOV Convention is a Sui-Generis form of IPR Specifically designed to reflect the peculiarities of:

• Breeding
• Cultivation
• Use of new Varieties of plants  

THE 1961 ACT.  

2. After extensive preparatory work at the initiative of the French Government and participation of 13 European States together with:

• The European Economic Committee (EEC).
• The United International Bureau for the protection of Industrial, Literary and Artistic Property -(BIRPI) – which later became WIPO.
• The Food and Agricultural Organization FAO.
• The Organization for Economic Cooperation and Development (OECD)Along with the following 4 non – Governmental Organizations:
• International Association of Plant Breeders for the Protection of Plants Varieties (ASSINSEL).
• International Association for the Protection of Industrial Property (AIPPI).
• International Community of Breeders of Asexually Reproduced Ornamental Varieties (CIOPORA) – Which later became the – International Community of Breeders of Asexually Reproduced Fruit Tree and Ornamental Varieties (CIOPORA).
• International Federation of Seed Trade (FIS)- In recognition of the fact that new varieties of plants are a powerful tool to enhance Agriculture and overall economic development, the states party to the UPOV wished to provide incentives for sustainable plant breeding.
  – Their aim was to guarantee  moral and material rights of breeders in respect of their varieties, in accordance with clearly defined and internationally harmonized principles.
  – Under the UPOV Convention,  in order to obtain protection of a new variety, Applicant is required to fulfill the following three technical criteria:
• 1. It must be clearly distinguishable from existing varieties.
  2. It must be sufficiently uniform.
  3. It must be stable in its essential characteristics after repeated reproduction or propagation.
• And, it must have a suitable denomination.
  ‘Protection means  any kind of commercialization of propagating material of the variety and subject to the breeders’ authorization’. Additional Act of 1972The UPOV Convention Provided in its Article 27, that it was “reviewed periodically with a view to the introduction of amendments designed to improve the working of the Union” and that unless the council decided otherwise “for this purpose, conferences shall be held every 5 years ”The first revision was thus to take place in 1972.The Additional Act entered into force on February 11, 1977. By that time, the work on a new revision of the convention was already underway.The 1978 revision.The member states of UPOV had already realized in 1973 that there was a need to revise the substantive provisions of the convention. After extensive preparatory work under the auspices of the council of UPOV, a diplomatic conference was convened in October 1978.
• The most important amendment concerned the status of UPOV as an Inter-Governmental Organization.
• UPOV was endowed with legal personality and also on the territory of each member of the union, the legal capacity necessary to achieve this aim and carry out its functions.
• It was provided that it would also enter into a Head-Quarters Agreement with the Swiss Confederation.
• An exception was incorporated into Article 37 to allow the United States of America to retain their dual system of protection and the demarcation of the areas of application according to the manner of propagation of the variety.
• Revised text of the 1978 differed lightly from the 1961 Act.
• Regarding old member states, the essential amendment was the prolongation from 4 years to 6 years of the period during which a variety world be marketed abroad without losing novelty in the case of Vines, Trees, Rootstocks.
• Provision on priority was revised.
• Rules on variety denomination were also revised.
• Fundamental Principles remained unchanged.
• Provision under which technical procedures and administrative cooperation between UPOV and WIPO were to be governed by rules established by the Swiss Government in agreement with the Unions concerned was deleted.
• The cooperation itself was not thereby affected.
• It is presently governed by an Agreement dated 26.11.1982.
• According to the agreement of 1982, WIPO provided UPOV with logical support against Indemnification.The 1991 Act.By 1991, some 30 years of experience had been gained in the application of the UPOV Convention and improvements were thought necessary.
• 1953-discovery of the structure of the DNA was announced.
• 1961- 1991 – Consequential Scientific discovery and Technological developments took place, which had profound implications for plant improvement and plant variety protection.
• Each of the changes made in 1991 was to deal with a challenge identified through experience or arising from scientific and technical progress.
• All Acts of the UPOV Convention have 5 main features:
  1. Standard Criterion for protection: Novelty, Variety Denomination, Distinctiveness, Uniformity, Stability.
  2. Minimum scope of protection
  3. Minimum duration of protection
  4. Minimum number of Plant Genera and Species for which variety protection must be provided.
  5. Rules for Accession to the Convention, National Treatment and Priority of Applications.
• General Overview:

1. Standard Criteria for protection- No major changes were made in 1991.

• However, it was decided to introduce a number of definitions such as breeder and variety which further clarified the UPOV System and contributed to  harmonization of its operations.

2. Scope of protection- Important clarifications are also made to the:

• Scope of protection varieties.
• Material of these varieties covered by the Breeders Rights.
• In that context Essentially Derived varieties (EDV) were developed.

3. EDV Concept Implies:

• A Variety which is deemed to be Essentially Derived from a protected variety / the initial variety may qualify for protection.
• Its exploitation is subject to the authorization of the breeder’s initial variety.
• The aim is to provide suitable incentives to all forms of plant breeding, thereby also facilitating the integration of biotechnological inventions, which may be protected by patents into modern plant breeding.

4. Exceptions to the Breeders Rights were now specified to include the following relevant Acts done for:

• Experimental Purposes.
• Done Privately.
• Non – Commercial purposes.

5. With respect to usage of a protected variety for breeding other varieties:

• The authorization of the breeder of the protected variety is not required in either in 1978 or 1991 Act as it is the Breeders Exemptions.
• Acts done with these varieties do not require the authorization of the breeder such as marketing.
• As an optional exception to the Breeders’ Right, a provision on farm – seed was introduced which allows UPOV Members under certain circumstances:(a) to save seed within reasonable limits. (b) In a way which safeguards the legitimate interests of the breeder.

6.  Minimum Duration of Protection:  

• Extended to 25 years for varieties of trees and vines.
• Extended to 20 years for other varieties.
• Minimum number of plant genera and species whose varieties must be protected.When the convention was revised in 1991, specific provisions on the examination of the application for a breeders right were introduced which offered a broad range of options for Variety testing involving cooperation with breeders and other authorities on a national and international level.
• Thus, no particular difficulty was seen in providing protection for varieties of all plant genera.
• Accordingly, the 1991 Act requires the grant of protection for the varieties of ALL Plant genera and species.
• Existing members of the union are given 5 years to achieve this.
• No members of the union are given 10 years to achieve this.

7. Expansion of Plant Variety Protection  

• UPOV itself does not grant protection.
• Precise basic provisions in the UPOV Convention along with intensive cooperation within the union in and at the: Legal, Administrative, Technical Matters. Along with:
• Considerable degree of international harmonization.
• Transparency in the operation of the UPOV system.
• At the National and regional level.

8. Broader Bases and Participation in Plant Variety Protection.            

• Permanent Organs of the Union:
• UPOV – Council
• UPOV – Office of Union
• Consultative Committee [CC]:
• Technical Committee [TC]  
• Administrative and Legal Committee [CAG]  

Technical Committee [TC]:  

1. Technical Working Party on Automation and Computers Programs [TWC].
2. Technical Working Party for Agriculture Crops [TWA].
3. Technical Working Party for Fruit Crops [TWF].
4. Technical Working Party for Ornamental Plants and Forest Trees [TWO].
5. Technical Working Party for vegetables [TWV].
6. Working Group on Bio Chemical and Molecular Techniques [BMT].

Conclusion: Attractiveness of the UPOV System: is due to a large extent, to a clear definition of the subject matter of protection, which is the variety and the scope of the breeders right along with a precise and internationally harmonized understanding and application of the technical criteria for protection by way of DUS – Distinctiveness and Uniformity and Stability.