UPOV-based Plant Variety Protection (PVP)
Protection of the intellectual input into the development of new plant varieties has always been a difficult topic for intellectual property systems. The juxtaposition of living material and the role of the “hand of man” and the degree to which man’s ingenuity in the development of new varieties should or can be rewarded through intellectual property rights (IPRs) has always been controversial. However, the current requirement for a system to protect new plant varieties can be traced back to Article 27.3(b) of the Trade-Related Aspects of Intellectual Property (TRIPS), which has been adopted by a majority of countries as a part of the obligations as a member of the World Trade Organisation (WTO). Under TRIPS, members are required to provide for the ‘protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.’ Although this contemplates protection through either a patent system or an entirely separate regime, the model for plant variety protection developed by the International Union for the Protection of New Varieties of Plants (UPOV) is the most widely adopted mode for fulfilment of the TRIPs requirement in use today.
Plant Variety Protection (”PVP“) or Plant Breeders Rights (PBRs) is the form of intellectual property right granted to plant breeders of newly bred varieties
Climbing beans in Rwanda
The UPOV Act has been amended several times – in 1972, 1978 and 1991. Different Acts apply to different members of UPOV, depending on the date of their membership. The upshot is that new members after the 1991 Act came into effect had to comply with the 1991 amendments. As with other IPR instruments, the UPOV act and the way in which it is adopted into national law, is a dynamic process and is always open to change or modification. Such modification can be the result of changes in the UPOV Act, in national laws, and in interpretation of national law by the judiciary or other practices.
Under UPOV 1991, the following acts are prohibited in respect of the propagating material of the protected variety:
- production or reproduction (multiplication);
- conditioning for the purpose of propagation;
- offering for sale;
- selling or other marketing;
- exporting;
- importing; or
- stocking for any of the purposes mentioned in (a)-(f).
In addition to protecting the rights of the breeder in respect of propagating materials, UPOV 1991 also extends protection to harvested materials. Any of the above acts in the case of harvested material obtained through the unauthorised use of propagating material of a protected variety will also violate the breeder’s monopoly, unless he has had reasonable opportunity to exercise his right in relation to the said propagating material.
However, the rights cannot prevent the variety from being used in research or further breeding - commonly known as the ‘breeders’ exemption’. Further, UPOV 1991 only allows seed saving by farmers for use on its own holding and for a list of crops. Seed exchange, unlike UPOV 1978, is not allowed under UPOV 1991 without the consent of the rights holder.
PVP And Other Forms Of Protection For New Varieties
Registration under a PVP system is not the only way in which new varieties can be protected. Since early 20th century, hybridsation has been used as a biological means of control to prevent saving and reusing of seeds, together with the physical protection of inbred lines as trade secrets. New technologies have also been employed in producing sterile seeds. With the advancement in biotechnology, most genetic materials of a new variety can be protected as utility patents today. It is also possible to obtain trademark rights to be used to market a variety, although usually the name of the variety in the PVP register cannot be used as a trademark. Trademark rights last indefinitely and this may be important after the expiry of the PVP. Seed laws are also another way to control access to varieties. Compulsory seed certification will allow the maintainer of the variety, usually the breeder, to control the party producing seeds for sale. The use of powerful contractual clauses in grower contracts or seed bags (binding upon opening of the seed package) to restrict and control the uses of seeds purchased is also commonly used (–such licenses are often referred to as “bag tags” or “seed wrap” licences). Material transfer agreements are another form of contractual instrument which can stipulate conditions for access and use when germplasm is transferred from one party to another.
Introductory film about Plant Variety Rights. For a free copy of the full length lecture please contact CAS-IP directly. Contact us
