- The document discusses the International Union for the Protection of New Varieties of Plants (UPOV), which provides an international system for protecting plant breeders' rights. - UPOV has 72 member countries and establishes common standards for plant variety protection, including entitlement to protection, conditions for protection such as novelty and uniformity, scope of rights, exceptions, and duration of protection. - The UPOV convention aims to encourage plant breeding by granting intellectual property rights to new plant varieties.

1. International Union for the Protection of
New Varieties of Plants (UPOV)
Union Internationale pour la Protection des Obtentions Végétales
By
Onkar Singh,
Onkar.singh9999@gmail.com

2. Outline
 International instruments
 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
 Conclusion statements
 Questions

3. International instruments interfacing under IP
TRIPS
Protection and enforcement of intellectual property rights in order to reduce
distortion and impediments to international trade.
UPOV
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.
CBD/Nagoya Protocol
Conservation of biological diversity, sustainable use of its elements and benefit sharing
of the advantages flowing from exploitation of these genetic resources.
ITPGRFA
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

4. Introduction http://www.upov.int/
Provides an
international
system for the
protection of
new plant
varieties in
recognition of
the IPRs of
plant
breeders.

5. India has observer status
Membership
http://www.upov.int/export/sites/upov/members/en/pdf/pub423.pdf
5
• 72 members (Green). EU and Organisation Africaine de la Propriété Intellectuelle (OAPI).

6. 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.”
 Understanding
 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.

7. 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.
 Understanding
 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

8. 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
Crops
44
Tree /Vines
66
2020
$ $$$$$$$$
Crops1 1

9. 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
the application”
Understanding
 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.

10. 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
relevant characteristics”
Understanding
 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.

11. 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”
 Understanding:
 Relevant characteristic don’t change through the generations.

12. 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.
Compulsory Provision
Optional Provision

13. Example on exercise of Right

14. Duration of the Protection & Provisional Protection
 Duration of Protection;
 This period starts from the date of grant.
 Provision Protection;
 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.
Understanding
 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.
Genera&species
Minimum
choice

15. Exceptions to breeder rights
.
Understanding
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
EDV.
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.
COMPULSORY OPTIONAL
Breeder’s
Exemption
Experimental Private and Non-Commercial Farm Saved Seeds
EDVVARIETY

16. Nullity and Cancellation of PBR
Nullity Cancellation
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
denomination.
Within prescribed time
Understanding The PBR was never valid, granted
by mistake.
PBR rightfully granted, it simply
ceases to exist due to lack of
compliance.
Effect It have retroactive effect. No retroactive effect; takes effect
from given date, i.e. the date of the
cancellation
No other reasons

17. Conclusion statements
 The UPOV Convention provides the basis for UPOV members to encourage
plant breeding by granting PBR to new plant varieties an intellectual property
right.
 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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Questions??