Plant Variety Rights are an internationally recognized form of Intellectual Property (IP) used to protect unique plant varieties. The application of plant variety rights is similar in principle to the IP Protection offered via copyright on books and patents on a wide range of innovative products, including biological material.
Breeding new varieties of plants requires a considerable investment, in terms of skill, labor, material, and economic resources, and may take several years (10 to 15 years in the case of many plant species); however, a new variety, once released, could, in many cases, be easily reproduced by others to rob its breeder of the chance to benefit adequately from the investment made. Sustained breeding efforts are only possible if there is a chance to reward investment. It is, therefore, vital to follow an effective system of Plant Variety Protection, intending to encourage the development of new varieties of plants for the help of society.
The plant variety rights system delivers protection and inspires further innovation in plant breeding by ensuring that the varieties awarded plant variety protection are freely available to others for use in future breeding programs. This access is known as the ‘breeder’s exemption,’ and it has significantly supported the major advances seen in plant breeding over the past 40 years. The plant variety rights system allows plant breeders to amass royalties on the production and sale of seeds of their protected varieties.
The International Union for the Protection of New Varieties of Plants, known as ‘UPOV,’ is an intergovernmental organization with legal personality and headquarters in Geneva, Switzerland. UPOV was established by the International Convention for the Protection of New Varieties of Plants (‘the UPOV Convention’), which was adopted in Paris in 1961. At that point, there was recognition of the Intellectual Property Rights (IPRs) of plant breeders in their varieties internationally. The UPOV Convention was revised in Geneva in 1972, 1978, and 1991.
Plant variety protection, also known as a ‘plant breeder’s right,’ is a form of an IPR granted to the breeder of a new plant variety concerning certain acts and the exploitation of the protected variety, which requires the prior authorization of the breeder. As in the case of patents, trademarks, and industrial designs, prior examination and grant by the relevant authority are required to establish the breeder’s right.
The UPOV Convention provides a sui generis form of IP protection, which has been specifically adapted for the process of plant breeding and developed to encourage breeders to develop new varieties of plants. To fully appreciate the need for protection, it is imperative to understand something about the nature of plant breeding.
Requirements for Obtaining Plant Variety Protection
In order to qualify for plant variety rights, a new variety must undergo official tests to determine whether it is distinct, uniform, and stable (DUS). For most crop species, these independent tests take two years. The requirements are as follows:
A variety must be clearly distinguishable from any other existing variety by one or more characteristics.
Individual plants of the same variety must be sufficiently uniform in a range of key characteristics.
A plant variety is considered to be stable if it reproduces true to type from one generation to the next.
For each new variety, these DUS tests are undertaken, and the results are considered by independent experts to determine whether all the requirements for plant variety rights have been met.
Plant variety rights are granted for 25 years for all species except trees, vines, and potatoes, which have a protection period of 30 years.
Key Advantages of the UPOV Convention
The main advantages of the UPOV Convention in the context of protecting plant varieties are as follows:
- Common agreement on essential notions: Variety and breeder, genera and species to be protected;
- Rules for national treatment and priority, which establish relations between members of the Union and provide the legal mechanism for nationals and residents of a member to benefit from protection in the territories of other members;
- The conditions for the grant of protection: novelty, distinctness, uniformity and stability, and a suitable variety denomination;
- A minimum scope of protection;
- Minimum duration of protection; and
- A clear delimitation of the grounds to nullify or cancel the breeder’s right.
Effect of Grant of Plant Variety Rights
If a person is granted rights over a plant variety, the grantee will take precedence over any other person who was entitled to make an application for the right in the variety. Such a person is not, however, prevented from applying for a revocation of rights or to seek administrative review of the authority’s actions concerning the grant of right or to request the authority to make a declaration that the variety over which the rights were granted was essentially derived from another plant variety. Where it has been determined that another person was entitled in law or equity to an assignment of the right to make an application for the right, that person may be entitled to an assignment of the plant breeder’s rights.
Domestic laws usually necessitate the grantee of rights in a plant variety to take all appropriate steps to ensure reasonable public access to that plant variety. This precondition is considered to be satisfied if propagating material of reasonable quality is available to the public at reasonable prices, or as gifts to the public, in sufficient quantities to meet the demand. For ensuring reasonable public access, the law may permit the relevant authority to license an appropriate person to sell propagating material of plants of that variety or to produce propagating material of plants of that variety for sale during such period as the authority considers appropriate and on such terms and conditions (including the provision of reasonable remuneration to the grantee) as the authority considers would be granted by the grantee in the normal course of business.
A person may make a written request to the authority for the grant of a license where a person considers that a grantee is failing to ensure reasonable public access to a plant variety, and the failure affects that person’s interests.
Most laws provide for the establishment of the Office of the Registrar of Plant Breeders’ Rights, which is responsible for the general administration of the Act and the maintenance of the Register of Plant Varieties. The office of the Registrar will generally issue an official Plant Varieties Journal in which all public notices are to be published.
During its 50 years of development and application, UPOV’s plant variety protection system has proven effective in encouraging the creation of new varieties of plants and introducing such varieties into agricultural and horticultural practice to benefit society. Ultimately, the UPOV system contributes to:
- Further innovation and investment in plant breeding;
- Better and more plant varieties for farmers and growers;
- Higher-income for farmers;
- Rural employment and economic development; and
- Development of international markets.