Rolf Jördens, Vice Secretary-General, UPOV Geneva, May 29, 2007

1. A BUSINESS-ORIENTED OVERVIEWOF INTELLECTUAL PROPERTY FOR LAW STUDENTS Rolf Jördens,Vice Secretary-General, UPOVGeneva, May 29, 2007 AGRICULTURAL SMEs and the PROTECTION of NEW VARIETIES of PLANTS

2. UPOV MISSION STATEMENT “To provide and promote aneffective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society”

3. OVERVIEW 1. WHAT IS UPOV? 2. WHY IS IT IMPORTANT TO PROTECT NEW PLANT VARIETIES? 3. WHICH ARE THE ESSENTIAL PROVISIONS OF THE UPOV CONVENTION? 4. BENEFITS

4. 1. WHAT IS UPOV?

5. UPOV: INDEPENDENT INTERGOVERNMENTAL ORGANIZATION The International Convention for the Protection of New Varieties of Plants established in 1961 The International Union for the Protection of New Varieties of PlantsUnion internationale pour la protection des obtentions végétales

6. Members of the Union • States • Intergovernmental Organization(s) • Permanent Organs • Council • Office of the Union

7. UPOV Membership/Territories covered 64members

8. Members of UPOV (green) and initiating States and organizations (yellow) Initiated the Procedure19 States 1 intergovernmental organization

9. 2. WHY IS IT IMPORTANT TO PROTECT NEW PLANT VARIETIES?

10. World populationcontinues to grow Agricultural productivity needs to be increased - arable land and other resources are scarce Improved quality - less waste, higher value Better resistance to pests and diseases - higher yields, less inputs More efficient use of inputs Economic development

11. Plant breeding is long and expensive BUT • Plant varieties can be easily and quickly reproduced • Breeders need protection to recover investment

13. 3. WHICH ARE THE ESSENTIAL PROVISIONS OF THE UPOV CONVENTION?

14. UPOV CONVENTION

15. i. Breeders and varieties ii. Conditions of protection iii. (a) Scope of the right, (b) exceptions and (c) duration

16. i. “BREEDERS” AND “VARIETIES”

17. THE ONE ENTITLED TO PROTECTION THE SUBJECT MATTER OF PROTECTION BREEDER VARIETY

18. The personwho bred, or discovered and developed, a variety BREEDER

20. The person who bred,or discovered and developed, a variety BREEDER

21. DEVELOPMENT IS NECESSARY DISCOVERY OR FIND

22. The person who bred, or discovered and developed,a variety BREEDER

23. VARIETY • plant grouping- lowest known rank • irrespective of conditions for the grant are met • defined by the expression of the characteristics • distinguished from other plant grouping • suitability for being propagated unchanged

24. PLANT KINGDOM

25. SPECIES

26. VARIETIES

27. ii. CONDITIONS FOR GRANTING A BREEDER’S RIGHT Criteria to be satisfied • NOVELTY • DISTINCTNESS • UNIFORMITY • STABILITY “DUS” (DHS)

28. Other requirements • VARIETY DENOMINATION • FORMALITIES • PAYMENT OF FEES NO OTHER CONDITIONS!

29. iii. (a) BREEDER’S RIGHT

30. Authorization of breeder required for: • Production or reproduction (multiplication) • Conditioning for the purpose of propagation • Offering for sale • Selling or marketing • Exporting • Importing • Stocking for any of the above purposes …. for any protected variety

31. MATERIAL COVERED • All propagating material • Harvested material under certain conditions

32. SEEDS • All propagating material

33. Harvested material • All propagating material IF obtained through unauthorized use of propagating material unless, reasonable opportunity for breeder to exercise his right

34. Breeder variety X Harvested Material • Variety X material is obtained in Country A and exported to Country B Country A Country B • Variety X is propagated in Country B • Exported to Country A as a harvested material (e.g. cut flowers) • The breeder of Variety X can exercise his rights on the imported harvested material

35. VARIETIES COVERED BY THE PROTECTION PROTECTED VARIETY AND VARIETIES: • not clearly distinguishable • whose production requires the repeated use of the protected variety • which are essentially derived from the protected variety

36. 1991 Act Protected Variety A Patented genetic element >===< Essentially Derived Variety B Authorization required Authorization REQUIRED Commercialization

37. iii. (b) EXCEPTIONS TO THE BREEDER’S RIGHT

38. Acts done: • privately and for non-commercial purposes • for experimental purposes • breedingother varieties Farmer’s privilege (Optional)

39. THE BREEDER’S EXEMPTION

40. ProtectedVariety A Variety B Breeder 2 Breeder 1 Breeder 3 Variety C Commercialization THE BREEDER’S EXEMPTION: Example NOAuthorization required NOAuthorization required NOAuthorization required* NOAuthorization required *except for: essentially derived varieties (1991 Act);varieties which require repeated use of a protected variety (variety A); andvarieties not clearly distinguishable from a protected variety (variety A).

41. ADVANTAGES OF THE BREEDER’S EXEMPTION • Germplasm sources remain accessible to the community of breeders • Genetic basis for plant improvement is broadened and is actively conserved • Variety improvement is enhanced • Opportunity for all breeders to share in benefits of breeding activities

42. THE SAVING OF SEEDBY FARMERS(“FARMER’S PRIVILEGE”)

43. 1991 Act Article 15(2) [optional exception] Contracting Party may restrict breeder’s rights in order to permit farmers to use: - for propagating purposes on their own holdings the product of the harvest - obtained on their own holdings from the protected variety - within reasonable limits subject to - safeguarding legitimate interests of the breeder

44. TREES and VINES25 years OTHER PLANTS20 years To be counted from the date of grant iii. (c) MINIMUM DURATION OF PROTECTION

45. IV. BENEFITS

46. Executive summary available at: www.upov.int “News & Events”

47. Kamil Idris (Secretary-General of UPOV) “...some very clear messages have emerged from this study, perhaps the most important being that the introduction of the UPOV system of plant variety protectionandmembership of the International Union for the Protection of New Varieties of Plants (UPOV)can open a door to economic development, particularly in the rural sector...” “... an important conclusion is that the UPOV system of plant variety protection provides an effective incentive for plant breeding in many different situations and in various sectors, and results in the development of new, improved varieties of benefit for farmers, growers and consumers...”

48. Ing. Enriqueta Molina Macías(Director, National Service for Inspection and Seed Certification (SNICS), Mexico and President of the UPOV Council) “It is perhaps worthwhile at the same time as reviewing those benefits to reflect on the importance of the plant genetic resources which form the raw material for the breeders' work. ...Under the UPOV system, a breeding cycle of progression can continue to maximize the benefits of plant variety protection and plant breeding for the future.”

49. Development of Plant Variety Protection

50. Expansion of UPOV Figure 5. Applications: All UPOV and CPVO: by region Europe: European Community Europe: Non-European Community North America Asia / Pacific Latin America AfricaNear / Middle East Extending coverage to plant genera and species: 1975: 500 plant genera and species (approx.) 1985: 900 1995: 1,300 2005: 2,300