International Union for the Protection of New Varieties of Plants Totally Explained

Everything about Upov totally explained

The International Union for the Protection of New Varieties of Plants or UPOV (French: Union internationale pour la protection des obtentions végétales) is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Kamil Idris. UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. By codifying intellectual property for plant breeders, UPOV aims to encourage the development of new varieties of plants for the benefit of society.
For plant breeders' rights to be granted, the new variety must meet four criteria under the rules established by UPOV.

The new plant must be novel, which means that it must not have been previously marketed in the country where rights are applied for.
The new plant must be distinct from other available varieties.
The plants must display homogeneity.
The trait or traits unique to the new variety must be stable so that the plant remains true to type after repeated cycles of propagation.

Protection can be obtained for a new plant variety how ever it has been obtained, for example through conventional breeding techniques or genetic engineering.

Members

As of June 2007, the following 64 countries were members of UPOV: Albania, Argentina, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, the People's Republic of China, Colombia, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, European Community, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, Moldova, Morocco, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Ukraine, United Kingdom, United States of America, Uruguay, Uzbekistan, and Viet Nam.

System of protection

The Convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union. These concepts include :

The criteria for new varieties to be protected: novelty, distinctness, uniformity, and stability.

The process for application for a grant

Intellectual property rights conferred to an approved breeder

Exceptions to the rights conferred to the breeder

Required duration of breeder's right

Events in which a breeder's rights must be declared null and void In order to be granted breeder's rights, the variety in question must be shown to be new. This means that the plant variety can't have previously been available for more than one year in the applicant’s country, or for more than four years in any other country or territory. The variety must also be distinct, that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity and stability, mean that individual plants of the new variety must show no more variation in the relevant characteristics than one would naturally expect to see, and that future generations of the variety through various propagation means must continue to show the relevant distinguishing characteristics
   A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without waiting for a result from previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority.
   The rights conferred to the breeder are similar to those of copyright in the United States, in that they protect both the breeder's financial interests in the variety and his recognition for achievement and labor in the breeding process. The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder also has the right to name the new variety, based on certain guidelines that prevent the name from being deliberately misleading or too similar to another variety's name.
   There are explicit exceptions to the rights of the breeder, known as the "breeder's exemption clause", that make it unnecessary to receive authoriziation for the use of a protected variety where those rights interfere in the use of the variety for a private individual's non-monetary benefit, or the use of the variety for further research. For example, the breeder's rights don't cover the use of the variety for subsistence farming, though they do cover the use of the variety for cash crop farming. Additionally, the breeder's authorization isn't required to use a protected variety for experimental purposes, or for breeding other varieties, as long as the new varieties are not "essentially derivative" of the protected variety. . Under the UPOV Convention alone, genetically modified crops and the intellectual property rights granted to them are no different than the intellectual property rights granted for traditionally bred varieties. It is important to note that this necessarily includes the ability to use protected varieties for subsistence farming and for research.
   In October 2004, two joint Symposia were held in Geneva with the World Intellectual Property Organization (WIPO). These Symposia were the WIPO-UPOV Symposium on Intellectual Property Rights in Plant Biotechnology (24 October 2003) and the WIPO-UPOV Symposium on the Co-Existence of Patents and Plant Breeders’ Rights in the Promotion of Biotechnological Developments (25 October 2003). No new policy was created at either of these events, but a consensus emerged that both patents and plant-breeders' rights must combine to promote plant biotechnology.
   As a policy matter, the UPOV is known to consider open and un-restricted access to the genetic resources of protected plant varieties to be important to the continued development of new varieties. This opinion is indicated in the "breeders' exemption" clause of the Convention, as described above, and was reinforced in October of 2005 in a reply to a notification from the Convention on Biological Diversity.
   In April of 2003, the Convention on Biological Diversity asked the UPOV for comment on the use of Genetic Use Restriction Technologies (also known as terminator genes) as they relate to the promotion of intellectual property rights. In the summary of their response, the UPOV stated that intellectual property protection is necessary because breeders must have the ability to recoup their money and labor investment in creating new varieties, and in that light, plants with terminator genes may still be accepted for protection if they meet the other criteria. However, the UPOV comment states that the Convention and its system of protection is sufficient to protect intellectual property rights, and that with proper legal protections in place, technologies like terminator genes shouldn't be necessary.

Further Information

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