International Union for the Protection of New Varieties of Plants (UPOV)

The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization which was established in 1961 by the UPOV Convention. The 1961 Convention was initially ratified in 1968 by the United Kingdom, Germany and the Netherlands. Since that time membership has grown to 60 countries (as of 15 September 2005), including the United States, Australia, China, 25 European countries and most recently, Azerbaijan and the European Community. Notably, India is not a member. The Convention has been revised three times (in 1972, 1978 and 1991). Given that UPOV is a separate intergovernmental organization and not a 'treaty', the organization has its own standing and is only partially monitored by WIPO.

The aim of the Convention is to encourage development of new plant varieties by award of an intellectual property right.

Plant Breeder's Rights

The most recent UPOV Convention (1991) requires that member countries provide a monopoly of limited duration to reward the development of new plant varieties by way of an exclusive property right, often called "Plant Breeder's Rights" (PBRs). The goal of PBRs is to provide an incentive to individuals or companies to invest in plant breeding and therefore add to the wealth of the community. Plant Breeder's Rights grant a legal monopoly over the commercialization of new plant varieties to the plant breeder, which allows them to try to recover the costs associated with breeding new plant varieties. The rights are granted for a limited period of time, at the end of which the variety passes into the public domain.

The 1991 Convention compared with the 1978 Convention

It is not necessary for all member countries to be bound by the 1991 Convention. Original UPOV members may elect to remain bound by a previous agreement, and as a result 26 countries are bound by the 1978 Convention. Spain and Belgium are the only countries that remain bound by the 1961 Convention.

The main differences between the 1978 and 1991 agreements are in the provisions defining the limits of the plant monopoly right and are presented in the table below:

The 1991 Convention requires that the varieties are new - new in the sense that they have not been previously commercialized or sold prior to the UPOV application being submitted (subject to the grace period outlined in Article 6(1b)). The 1991 Convention also confers protection to 'essentially derived varieties,' i.e. plants which require the protected variety for their production (Article 14(5)). Unlike the previous UPOV agreement, there is no farmer's or breeder's exemption for protected species. It is now up to the national governments to implement separate legislation with respect to this practice.

Many UPOV members are also WTO members and are therefore obliged to allow claims to exclusive rights of some duration over plant varieties (as a result of the TRIPS Agreement). The use of the UPOV system generally fulfills this requirement.

The information contained in this page was believed to be correct at the time it was collated. New patents and patent applications, altered status of patents, and case law may have resulted in changes in the landscape. CAMBIA makes no warranty that it is correct or up to date at this time and accepts no liability for any use that might be made of it. Corrections or updates to the information are welcome. Please send an email to info@bios.net.

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