Frequently asked questions

General FAQs

FAQs on relationship with other treaties and measures concerning seed

FAQs for breeders

FAQs for farmers

General FAQs

What is UPOV?

The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization based in Geneva, Switzerland. UPOV was established in 1961 by the International Convention for the Protection of New Varieties of Plants (the "UPOV Convention").

The mission of UPOV is 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.

The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right.

What does UPOV do?

UPOV’s mission is 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. The main objectives of UPOV are, in accordance with the UPOV Convention, to:

  • provide and develop the legal, administrative and technical basis for international cooperation in plant variety protection;
  • assist States and organizations in the development of legislation and the implementation of an effective plant variety protection system; and
  • enhance public awareness and understanding of the UPOV system of plant variety protection.

What is a plant variety?

The term “species” is a familiar unit of botanical classification within the plant kingdom. However, it is clear that within a species there can be a wide range of different types of plant. Farmers and growers need plants with particular characteristics and that are adapted to their environment and their cultivation practices. A plant variety represents a more precisely defined group of plants, selected from within a species, with a common set of characteristics. To see an illustrative example of a plant variety, please go to http://www.upov.int/overview/en/variety.html.

A detailed explanation of the definition of “variety” is provided in document UPOV/EXN/VAR “Explanatory Notes on the Definition of Variety under the 1991 Act of the UPOV Convention”

Why is plant variety protection necessary?

Successful breeding requires great skill and knowledge. In addition, large-scale breeding calls for significant investment in land, specialized equipment (for example, greenhouses, growth chambers and laboratories), and skilled, scientific manpower.

It takes a long time to develop a successful plant variety (10 to 15 years in the case of many plant species). Yet not all new plant varieties are successful and, even where the varieties show significant improvements, changes in market requirements may eliminate the possibility of a return on investment. This makes it necessary to balance the benefits with the return of the original high investment. Generally, however, plant breeding results in the availability of varieties with increased output and improved quality for the benefit of the society.

Sustained and long-term breeding efforts are only worthwhile if there is a chance to be rewarded for the investment made. To recover the costs of this research and development, the breeder may seek protection to obtain exclusive rights for the new variety.

At the same time, a new variety, once released, can often be easily reproduced by others. The original breeder is thus deprived of the fair opportunity to benefit from his or her investment. It is, therefore, critical to provide an effective system of plant variety protection, which encourages the development of new varieties of plants thereby benefiting the breeder and society at large.

In addition to making plant variety protection available, other measures to encourage plant breeding activities include increased public funding for plant breeding, facilitating access to genetic resources and encouraging public-private partnerships.

What are the benefits of plant variety protection and UPOV membership?

The UPOV Report on the Impact of Plant Variety Protection demonstrated that in order to enjoy the full benefits which plant variety protection is able to generate, both implementation of the UPOV Convention and membership of UPOV are important. The introduction of the UPOV system of plant variety protection and UPOV membership were found to be associated with:

(a) increased breeding activities,
(b) greater availability of improved varieties,
(c) increased number of new varieties,
(d) diversification of types of breeders (e.g. private breeders, researchers),
(e) increased number of foreign new varieties,
(f) encouraging the development of a new industry competitiveness on foreign markets, and
(g) improved access to foreign plant varieties and enhanced domestic breeding programs.

In order to become a UPOV member the advice of the UPOV Council in respect of the conformity of the law of a future member with the provisions of the UPOV Convention is required. This procedure leads, in itself, to a high degree of harmony in those laws, thus facilitating cooperation between members in the implementation of the system.

How does plant variety protection work?

The UPOV Convention provides the basis for members (see http://www.upov.int/members/en/) to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right.

The breeder’s right means that the authorization of the breeder is required to propagate the variety for commercial purposes. The UPOV Convention specifies the acts that require the breeder’s authorization in respect of the propagating material of a protected variety and, under certain conditions, in respect of the harvested material. UPOV members may also decide to extend protection to products made directly from harvested material, under certain conditions.

In order to obtain protection, the breeder needs to file individual applications with the authorities of UPOV members entrusted with the task of granting breeders’ rights (see http://www.upov.int/members/en/pvp_offices.html).

Is it true that UPOV only promotes commercially bred plant varieties geared to industrialized farmers?

The aim of the UPOV system is encourage breeding of new plant varieties for all types of farmers. The “Seminar on Plant Variety Protection and Technology Transfer: the Benefits of Public-Private Partnership” and the “Symposium on the Benefits of Plant Variety Protection for Farmers and Growers” demonstrated, for example, the way in which plant breeders’ rights have been used by the public sector to transfer new varieties to both commercial and resource-poor farmers.

Does the UPOV Convention regulate varieties that are not protected by plant breeders’ rights?

The UPOV system does not regulate varieties that are not covered or no longer covered by plant variety protection. Therefore many plant varieties can be replanted by a farmer without any authorization of the breeder.

UPOV does not regulate any other system of intellectual property rights governing the protection of plants/plant varieties. It is necessary to consult the legislation in each UPOV Contracting Party in order to know the situation and the answer in that UPOV member.

Who can protect a plant variety?

Only the breeder of a new plant variety can protect that new plant variety. It is not permitted for someone other than the breeder to obtain protection of a variety.

There are no restrictions on who can be considered to be a breeder under the UPOV system: a breeder might be an individual, a farmer, a researcher, a public institute, a private company etc.

What are the requirements for protecting a new plant variety?

Under the UPOV Convention, the breeder’s right is only granted where the variety is (i) new, (ii) distinct, (iii) uniform, (iv) stable and has a suitable denomination (see http://www.upov.int/overview/en/conditions.html).

Why does UPOV require varieties to be uniform and stable; doesn’t that lead to a loss of diversity?

…Why does UPOV require varieties to be uniform and stable?

A variety which is the object of a breeder’s right needs to be both sufficiently uniform and stable in order to define the object of the right granted to the holder.

The notion of uniformity ensures that the variety can be defined as far as is it necessary for the purpose of protection. This is indicated by the notion of sufficient uniformity, i.e., the criterion for uniformity does not seek absolute uniformity. The UPOV Convention links the uniformity requirement for a variety 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, vegetatively propagated varieties, cross-pollinated varieties, mainly cross-pollinated varieties, synthetic varieties and hybrid varieties will, in general, be different. Furthermore, it relates only to the characteristics which are relevant for the protection of the variety.

As with the uniformity requirement, the criterion for stability has been developed to establish the identity of the variety as the subject matter of protection by ensuring that the relevant characteristics of the variety remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

…doesn’t that lead to a loss of diversity?

On the contrary, the UPOV system encourages the development of new varieties of plants, therefore adding to diversity. The “breeder’s exemption” in the UPOV Convention enables plant diversity to be available for further breeding activities because acts done for the purpose of breeding other varieties are not subject to any restriction by the breeder. This reflects the fact that access to protected varieties contributes to sustain greatest progress in plant breeding and, thereby, to maximize the use of genetic resources for the benefit of society.

Moreover, the UPOV system does not govern the use of non-protected varieties nor the implementation of policies and legislation related to the use of non-protected varieties.

Can breeders use a protected variety in their breeding programs?

Under the “breeder’s exemption” in the UPOV Convention, the authorization of the breeder for the use of protected varieties for breeding purposes is not required.

The relevant provisions of the 1978 Act and of the 1991 Act of the UPOV Convention are reproduced and explained as follows:

1978 ACT

Article 5: Rights Protected; Scope of Protection

“(3) Authorisation by the breeder shall not be required either for the utilisation of the variety as an initial source of variation for the purpose of creating other varieties or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the variety is necessary for the commercial production of another variety.”

1991 ACT

Article 15: Exceptions to the Breeder’s Right

“(1) [Compulsory exceptions] The breeder’s right shall not extend to […]
“(iii) acts done for the purpose of breeding other varieties, and, except where the provisions of Article 14(5) apply, acts referred to in Article 14(1) to (4) in respect of such other varieties.”

Thus, with regard to the use of a protected variety for breeding “other” varieties, the authorization of the breeder of the protected variety is not required in either the 1978 Act (“Authorisation by the breeder shall not be required … for the utilisation of the variety as an initial source of variation for the purpose of creating other varieties…”) or the 1991 Act (“The breeder’s right shall not extend to … acts done for the purpose of breeding other varieties”).

In addition, acts done with the “other” varieties (e.g. marketing), do not require the authorization of the breeder of the protected variety except for the circumstances specified in the 1978 Act and the 1991 Act. Article 5(3) of the 1978 Act (see above) specifies that the “authorisation shall be required … when the repeated use of the variety is necessary for the commercial production of another variety”. The 1991 Act specifies that the authorization of the breeder is required, where the provisions of Article 14(5) (essentially derived and certain other varieties) apply, in respect of the acts for material covered under Article 14(1) to (4) (see http://www.upov.int/overview/en/exceptions.html).

Is it possible to obtain protection of a variety on the basis of its DNA-profile?

For a variety to be protected, it needs to be clearly distinguishable from all existing varieties on the basis of characteristics that are physically expressed, e.g. plant height, time of flowering, fruit color, disease resistance etc. The DNA-profile is not the basis for obtaining the protection of a variety, although this information may be used as supporting information.

A more detailed explanation is provided in the FAQ Does UPOV allow molecular techniques (DNA profiles) in the examination of Distinctness, Uniformity and Stability (“DUS”)?

See also: What are the requirements for protecting a new plant variety?

Who can attend UPOV meetings?

In addition to UPOV members, observer States, intergovernmental organizations and international non­governmental organizations may attend the sessions of the Council and, if applicable, of the Administrative and Legal Committee (CAJ), Technical Committee (TC) and Technical Working Parties (TWPs). The Consultative Committee normally holds closed sessions, restricted to the members of the Union. However, observers may be invited to present their views in relevant agenda items. The “Rules governing the granting of observer status to States, intergovernmental organizations and international non-governmental organizations in UPOV bodies” (document UPOV/INF/19/1) can be consulted at http://www.upov.int/information_documents/en/.

FAQs on relationship with other treaties and measures concerning seed

What is the relationship between the UPOV Convention and international treaties concerning genetic resources, e.g. the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)?

The UPOV Convention, the CBD and the ITPGRFA are all international instruments.

The objectives of the CBD and the ITPGRFA are the conservation and sustainable use of genetic resources and the sharing of benefits arising from their use.

Both the ITPGRFA and the UPOV Convention aim to support plant breeding activities and to encourage the development of new varieties of plants. The ITPGRFA does so by providing a system for facilitated access to plant genetic resources, while the UPOV Convention does so by establishing a system for plant variety protection. When implemented by UPOV members, the relevant legislations dealing with these matters should be compatible and mutually supportive.

What is the relationship between patents and plant breeders’ rights?

Patents and plant breeders’ rights are separate intellectual property rights with different conditions of protection, scope and exceptions. Breeders can use plant breeders’ rights, patents or other forms of intellectual property rights, or a combination to the extent that such systems are available in the territory concerned.

Nowadays, with recent technological developments, for example the rising number of gene-related patents and rapid progress in the field of genetic engineering, patents and plant breeders’ rights are more interlinked.

What is the relationship between plant breeders’ rights and measures regulating commerce, e.g. seed certification, official registers of varieties admitted to trade (e.g. National List, Official Catalogue) etc.?

It is not the role of the UPOV system to regulate the marketplace. The UPOV Convention requires that the breeder’s right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material. In any case, such measures shall not affect the application of the provisions of the UPOV Convention. This clarification should not be taken to mean that UPOV believes that there should be a particular type or level of market regulation, but rather as a recognition that such regulation should be dealt with by an appropriate, dedicated and independent mechanism.

FAQs for breeders

Where do I apply for protection of a variety?

In order to obtain protection, the breeder needs to file individual applications with the authorities of UPOV members entrusted with the task of granting breeders’ rights (see http://www.upov.int/members/en/pvp_offices.html).

Can I obtain protection for more than one country from a single application?

In order to obtain protection the breeder needs to file an application with the authority of each UPOV member where protection is sought. The European Union operates a plant breeders’ rights system which covers the territory of its 28 member States. The African Intellectual Property Organization operates a plant breeders’ rights system which covers the territory of its 17 member States. Contact details of the authorities responsible for the granting of breeders’ rights are provided at http://www.upov.int/members/en/pvp_offices.html.

Who is responsible for enforcing plant breeders’ rights?

While the UPOV Convention requires members of the Union to provide for appropriate legal remedies for the effective enforcement of breeders’ rights, it is a matter for breeders to enforce their rights.

Can I protect an existing plant or variety that I discover?

Only the breeder* of a new plant variety can protect that new plant variety. The 1991 Act of the UPOV Convention provides, under its Article 21(1)(iii), that “ [e]ach Contracting Party shall declare a breeder’s right granted by it null and void when it is established […] (iii) that the breeder’s right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled. ”

*The term “breeder” is defined in Article 1(iv) of the 1991 Act of the UPOV Convention as:

– 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.

The term “person” embraces both physical and legal persons, and refers to one or more persons. Under the UPOV Convention, there is no restriction on who can become a breeder. A breeder might be, for example, an amateur gardener, a farmer, a scientist, a plant breeding institute or an enterprise specialized in plant breeding.

With regard to “discovered and developed”, a discovery might be the initial step in the process of breeding a new variety. However, the term “discovered and developed” means that a mere discovery, or find, would not entitle the person to obtain a breeder’s right. Development of plant material into a variety is necessary for a breeder to be entitled to obtain a breeder’s right. A person would not be entitled to protection of an existing variety that was discovered and propagated unchanged by that person.

The Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture address the issue of access to genetic resources and benefit sharing.

Does the UPOV Convention allow a variety to be refused protection because it is genetically modified?

No. Under the UPOV Convention, no further requirements can be requested for protection than those stated in Article 5. Furthermore, Article 18 of the 1991 Act of the UPOV Convention states that “ [the] breeder’s right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such materials […]. ” In that respect, it is also important to note that the grant of protection does not grant the right to produce or market a plant variety.

The UPOV Convention makes no restriction with regard to the methods or techniques by which a new variety is “bred”.

Can I use plant variety protection to protect the following:
- a trait (e.g. disease resistance, flower color)
- a chemical or other substance (e.g. oil, DNA)
- a plant breeding technology (e.g. tissue culture)?

No. The definition that a variety means a “plant grouping” clarifies that a trait, a chemical or other substance and a plant breeding technology do not correspond to the definition of a variety.

Can I protect a hybrid variety under the UPOV system?

Yes. The definition of variety in the 1991 Act of the UPOV Convention, Article 1 (vi) states that “variety” means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be “defined by the expression of the characteristics resulting from a given genotype or combination of genotypes […]”. The notion of “combination of genotypes” covers, for example, synthetic varieties and hybrids.

Does UPOV allow molecular techniques (DNA profiles) in the examination of Distinctness, Uniformity and Stability (“DUS”)?

It is important to note that, in some cases, varieties may have a different DNA profile but be phenotypically identical, whilst, in other cases, varieties which have a large phenotypic difference may have the same DNA profile for a particular set of molecular markers (e.g. some mutations).

In relation to the use of molecular markers that are not related to phenotypic differences, the concern is that it might be possible to use a limitless number of markers to find differences between varieties at the genetic level that are not reflected in phenotypic characteristics.

On the above basis, UPOV has agreed the following uses of molecular markers in relation to DUS examination:

(a) Molecular markers can be used as a method of examining DUS characteristics that satisfy the criteria for characteristics set out in the General Introduction if there is a reliable link between the marker and the characteristic.

(b) A combination of phenotypic differences and molecular distances can be used to improve the selection of varieties to be compared in the growing trial if the molecular distances are sufficiently related to phenotypic differences and the method does not create an increased risk of not selecting a variety in the variety collection which should be compared to candidate varieties in the DUS growing trial.

The situation in UPOV is explained in documents TGP/15 “Guidance on the Use of Biochemical and Molecular Markers in the Examination of Distinctness, Uniformity and Stability (DUS)” and UPOV/INF/18 “Possible use of Molecular Markers in the Examination of Distinctness, Uniformity and Stability (DUS)”.

FAQs for farmers

Why do farmers and growers need new plant varieties?

New varieties of plants with features such as improved yield, resistance to plant pests and diseases, salt and drought tolerance, or better adaptation to climatic stress are a key element in increasing productivity and product quality in agriculture, horticulture and forestry, whilst minimizing the pressure on the natural environment. Due to the continuous evolution of new pests and diseases as well as changes in climatic conditions and users’ needs, there is a continuous demand by farmers/growers of new plant varieties and development by breeders of such new plant varieties.

The tremendous progress in agricultural productivity in various parts of the world is largely based on improved varieties, together with improved farming practices, and future food security depend on them.

Can a farmer sell seed of a protected variety without the authorization of the breeder?

The authorization of the breeder is required for the selling of seed of a protected variety by any person.

Under the 1978 Act of the UPOV Convention (see Article 5), the prior authorization of the breeder is required for “the offering for sale” and “the marketing” of the reproductive or vegetative propagating material, as such, of the variety.

Under the 1991 Act of the UPOV Convention (see Article 14(1)) the “offering for sale” and “selling or other marketing” of the propagating material of the protected variety requires the authorization of the breeder.

Can a farmer replant seed of a protected variety without the authorization of the breeder?

Commercial farmers

It is necessary to consult the legislation in each UPOV member to know the answer to this question.

Under the 1978 Act of the UPOV Convention (see Article 5), the prior authorization of the breeder is required for the production for purposes of commercial marketing of the reproductive or vegetative propagating material, as such, of the variety. However, no specific mention is made of replanting seed of a protected variety by farmers. Therefore, it is necessary to consult the legislation in each UPOV member.

Under the 1991 Act of the UPOV Convention (see Article 15(2)), there is an optional exception to the breeder’s rights according to which UPOV members can decide to allow farmers to replant seed on their own farms without the authorization of the breeder, under certain circumstances. The wording of this optional exception is as follows:

“Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right in relation to any variety in order to permit farmers to 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 or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii). ”

It is a matter for each UPOV member to decide if, and how, to incorporate this option in its legislation.

Subsistence farmers

Since the 1991 Act and 1978 Act give no definition of the words “commercial” and “subsistence farming”, it is necessary to consult the legislation in each UPOV member to know the answer to this question specific for that UPOV member.

Under the 1978 Act of the UPOV Convention (see Article 5), the prior authorization of the breeder is required for the production for purposes of commercial marketing of the reproductive or vegetative propagating material, as such, of the variety. The 1978 Act of the UPOV Convention is silent on the question of subsistence farmers, and therefore it totally depends on the national legislation.

Under the 1991 Act of the UPOV Convention (see Article 15(1)(i)), a compulsory exception sets out that the breeder’s right does not extend to “acts done privately and for non-commercial purposes”. With subsistence farming, it is observed that the farmer produces barely enough food for their own consumption and that of their dependents. Thus, the propagation of a protected variety by a farmer exclusively for the production of a food crop to be consumed by that farmer and the dependents of the farmer, may be considered to fall within the meaning of acts done privately and for non-commercial purposes.

What is the effect of plant variety protection on varieties that are not protected (e.g. traditional varieties, landraces etc.)?

The UPOV Convention only offers protection to new varieties of plants. UPOV does not regulate varieties that are not covered by plant variety protection. Therefore, plant variety protection does not restrict the ability of farmers to grow and sell propagating material of non-protected varieties.

How do I know if a variety is protected?

It is necessary to consult the official publication concerning protected varieties for the UPOV member concerned.

The UPOV Plant Variety Database (PLUTO) is a compilation of data supplied by many of the competent authorities of the UPOV members. However, the information concerning plant breeders’ rights provided in PLUTO does not constitute the official publication of the authorities concerned. To consult the official publication, or to obtain details on the status and completeness of the information in PLUTO, please contact the relevant authority, contact details for which are provided at http://www.upov.int/members/en/pvp_offices.html.

All contributors to PLUTO are responsible for the correctness and completeness of the data they supply. Users are particularly requested to note that it is not obligatory for members of the Union to supply data for PLUTO and, for those members of the Union who supply data, it is not obligatory to supply data for all items.

Is it possible for subsistence farmers to exchange propagating material of protected varieties against other vital goods within the local community?

Since the 1991 Act and 1978 Act do not specifically address or define subsistence farmers it is necessary to consult the legislation of each UPOV Contracting Party for the answer to this question specific to that UPOV member.

Within the scope of the breeder’s right exceptions provided under the UPOV Conventions, UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community.

Under the UPOV system, breeders decide the conditions and limitations under which they authorize the exploitation of their protected varieties. Can farmers, for instance, be allowed to exchange seeds of protected varieties freely within the local community?

Article 14(1)(a) of UPOV 1991 and article 5(1) of UPOV 1978 define the acts in respect of the propagating material for which the breeder authorization shall be required; Article 14(1)(b) and respectively Article 5(2) state that the breeder may make his authorization subject to conditions and limitations.

Therefore any breeder may decide on the conditions and limitations under which he authorizes the exploitation of his/her protected variety. He may, for instance, allow the farmer to exchange seeds of protected varieties freely within the local community.

 

 

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