The African Regional Intellectual Property Organization (ARIPO) has 19 members.
The definition of “breeder” is important because it identifies who is entitled to apply for and, if the conditions are fulfilled, obtain, a breeder’s right.
Understanding Territory, duration, type of crops and practices(sold or dispose) are interlinked deciding factors of novelty.
This is linked to the particular features of its propagation. This means that the level of uniformity required for truly self-pollinated varieties, mainly self-pollinated varieties, inbred lines of hybrid varieties, vegetative propagated varieties, cross-pollinated varieties, mainly cross-pollinated varieties, synthetic varieties and hybrid varieties will, in general, be different.
Farm saved seeds can be use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety. This is subject to are subject to within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder.
Nullity: When a plant breeder’s right has been declared null and void, it is equivalent to pronouncing that it was never granted. The breeder’s right was granted by mistake, it was never valid.
International Union for the Protection of
New Varieties of Plants (UPOV)
Union Internationale pour la Protection des Obtentions Végétales
Introduction & Membership -UPOV
Key provisions - UPOV
Entitlement to Protection
Conditions of Protection
Scope of Breeders’ rights; Acts and Materials
Duration of Protection & Provisional Protection
Exceptions to Breeders’ rights
Nullity & Cancellation of Breeders’ Rights
International instruments interfacing under IP
Protection and enforcement of intellectual property rights in order to reduce
distortion and impediments to international trade.
To provide and promote an effective system of plant variety protection, with the aim
of encouraging the development of new varieties of plants, for the benefit of society.
Conservation of biological diversity, sustainable use of its elements and benefit sharing
of the advantages flowing from exploitation of these genetic resources.
Conservation and sustainable use of plant genetic resources for food and agriculture
and the fair and equitable sharing of the benefits arising out of their use for
sustainable agriculture and food security.
Minimum Standard for IPRs
Instrument for PBR
Sovereign rights over GM+ABS
Instrument for PGR+ABS
system for the
the IPRs of
India has observer status
• 72 members (Green). EU and Organisation Africaine de la Propriété Intellectuelle (OAPI).
Entitlement to Protection
Who can apply for PVP ? Breeder
Who is breeder?
“the person who bred, or discovered and developed, a variety, the person who is the
employer of the aforementioned person or who has commissioned the latter’s work,
where the laws of the relevant Contracting Party so provide, or the successor in title of
the first or second aforementioned person, as the case may be.”
Concept of person includes both physical and legal person i.e. companies.
Breeder term is defined in broad and inclusive manner.
No restriction on techniques used for breeding.
Discovery would not entitle the person for protection. Development mandatory.
Conditions of Protection
(1) The breeder’s right shall be granted where the variety is: (i) new, (ii) distinct, (iii)
uniform and, (iv) stable.
(2) The grant of the breeder’s right shall not be subject to any further or different
conditions, provided that the variety is designated by a denomination in accordance
with the provisions of Article 20, that the applicant complies with the formalities
provided for by the law of the Contracting Party with whose authority the
application has been filed and that he pays the required fees.
The grant of protection shall not be subject to any further conditions, provided that
the applicant complies with all the formalities and pays the required fees.
The DUS test is based mainly on growing tests.
No other conditions
Conditions for protection; New
“The variety shall be deemed to be new if, at the date of filing of the application for a
breeder’s right, propagating or harvested material of the variety has not been sold
or otherwise disposed of to others, by or with the consent of the breeder, for
purposes of exploitation of the variety (i) in the territory of the Contracting Party in
which the application has been filed earlier than one year before that date and (ii)
in a territory other than that of the Contracting Party in which the application has
been filed earlier than four years or, in the case of trees or of vines, earlier than six
years before the said date”
Country I Country O
2015 2016 2017 2018 20192014
Conditions for protection; Distinct
“The variety shall be deemed to be distinct if it is clearly distinguishable from any other
variety whose existence is a matter of common knowledge at the time of the filing of
A variety can be considered as clearly distinguishable, if the difference in
characteristics are (a) consistent and (b) clear.
Common knowledge is not restricted to national or geographical borders.
Conditions for protection; Uniform
“The variety shall be deemed to be uniform if, subject to the variation that may be
expected from the particular features of its propagation, it is sufficiently uniform in its
The notion of uniformity ensures that the variety can be defined as far as is it
necessary for the purpose of protection. The criterion for uniformity does not
seek absolute uniformity.
Conditions for protection; Stability
“The variety shall be deemed to be stable if its relevant characteristics remain
unchanged after repeated propagation or, in the case of a particular cycle of
propagation, at the end of each such cycle”
Relevant characteristic don’t change through the generations.
Scope of breeder rights; Acts and Materials Covered
Right to exclude others from performing certain acts; (a)Production or
reproduction (b)Conditioning for the purpose of propagation (c) Offering for sale
(d) Selling or other marketing (e)Exporting (f) Importing (g)Stocking for any of the
above purposes .
Materials covered under PBR;
(i) Propagating material
(ii) Harvested material
(ii)Products made directly from harvested material
Cascade Effect: Breeders can only exercise their right in relation to the harvested
material if they have not been able to exercise their right in relation to the
propagating material, and can only exercise their right in relation to a product
made directly from the harvested material if they were unable to exercise their right
in relation to the harvested material.
Duration of the Protection & Provisional Protection
Duration of Protection;
This period starts from the date of grant.
To safeguard the interests of breeder
During the period between the filing or the publication of the application for the
grant of a breeder's right and the grant of that right.
Equitable remuneration from unauthorized use by any person.
Provisional protection takes effect only if protection is granted, i.e., if the
application is rejected, provisional protection will not be available.
Trees & vines 25 years
Other plants 20 years
Old members At the date of joining;
(i) All plant genera and species and,
(ii) at the latest by the expiration 5 Years from
the joining date
New members At the date of joining
(i) Minimum 15 plant genera or species and,
(ii) At the latest by the expiration 10 years from the
joining date, to all plant genera and species.
Exceptions to breeder rights
All the above mentioned activities don’t required authorization from Breeder.
Protected varieties can be used to develop New Variety varieties. But, not to develop
Non-private acts, even where for non-commercial purposes, may be outside the scope
of the exception. Furthermore, the wording indicates that private acts which are
undertaken for commercial purposes do not fall within the exception.
Experimental Private and Non-Commercial Farm Saved Seeds
Nullity and Cancellation of PBR
Reasons A breeder’s right shall be declared
null and void if:
(i) Not New or Distinct.
(ii) PBR granted based on
information and documents
furnished, the variety was not
uniform or stable at the time of
the grant of right.
(iii) Not an entitled breeder .
A breeder’s right may be cancelled if:
(i) No longer Uniform or Stable.
(ii) Information, documents or
material not provided.
(iii) Fail to pay fees.
(iv)Fail to propose alternate
Within prescribed time
Understanding The PBR was never valid, granted
PBR rightfully granted, it simply
ceases to exist due to lack of
Effect It have retroactive effect. No retroactive effect; takes effect
from given date, i.e. the date of the
No other reasons
The UPOV Convention provides the basis for UPOV members to encourage
plant breeding by granting PBR to new plant varieties an intellectual property
The UPOV Convention specifies (i) Scope of PBR, (ii) the acts that require the
breeder’s authorization, (iii) the acts that do not require the breeder’s
authorization, (iv) the conditions of grant and, (v) Duration of grant.
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