Need to protect new varieties of plants

Providing an effective system of plant variety protection has the aim of encouraging the development of new varieties of plants, for the benefit of society. The breeding of new varieties of plants requires substantial amounts of investment (skill, labor, money, time, etc.). Providing exclusive rights to breeders is an incentive to the development of new plant varieties for agriculture, horticulture and forestry.

Ways to protect New Plants

The International Convention for the Protection of New Varieties of Plants (UPOV Convention) provides for the protection of plant varieties by means of a “Plant Breeder’s Right”, which is a sui generis form of intellectual property rights, specifically tailored for that purpose.
Members of the World Trade Organization (WTO) are committed by the TRIPS Agreement to provide protection to plant varieties either by patents or by an effective sui generis system (special system for plant varieties) or by a combination of both (Article 27.3(b)).

Stages at which plant varieties can be protected

Under the UPOV Convention, in order for the plant variety to be protected, it must be:

(a) New, meaning that it has not been commercially exploited during a certain period before the application;
(b) Distinct, meaning that it is clearly distinguishable from any other variety whose existence is a matter of common knowledge; (c) Uniform, meaning that the plants of a variety should be uniform in the relevant characteristics, subject to the variations that may be expected from the particular features of its propagation;
(d) Stable, meaning that the variety should remain unchanged in its relevant characteristics over a period of repeated propagation;
(e) Have a suitable denomination, meaning it must have a name by which it is designated.

Protection for the breeder

Under the 1991 Act of the UPOV Convention, the following acts in respect to the propagating material (the seed or plant or part of plant that is used for the reproduction or multiplication of the variety) require prior authorization from the breeder:
- Production or reproduction;
- Conditioning for the purpose of propagation;
- Offering for sale;
- Selling or other marketing;
- Exporting;
- Importing;
- Stocking for any of the above purposes.

If a breeder does not have the chance to exercise his right on the propagating material, and the variety is propagated without authorization, a breeder can exercise his right on the harvested material.

System allows the breeder to recoup the investment

When giving the authorization for the above-mentioned acts to those who wish to exploit the variety, the breeder may, as a condition, require the payment of a royalty. Thus, for farmers who buy seed, this royalty would be included in the price of the seed.

Extent to which protected plant variety can be used without the need to ask for authorization

It is important to note that authorization from the breeder is NOT required for:
- Acts done for non-commercial purposes;
- Acts done for experimental purposes;
- Acts done for the purpose of breeding and exploiting other varieties.

Subject to reasonable limitations and to the safeguarding of the legitimate interest of the breeders, the UPOV Convention allows UPOV members to provide for farmers to use the product of their harvest for propagating purposes (e.g. to save part of the grain harvested by the farmer to be used as seed for the following season on their own farm).

Term of breeder’s rights

The minimum duration described in the 1991 Act of the UPOV Convention is:

-25 years for trees and vines
-20 years for other plants.

Extensiveness of plant variety protection

Usually, the protection is granted on a national level, in each of the States where the breeder seeks protection. However, the International Convention for the Protection of New Varieties of Plants (UPOV) allows protection on a supranational basis, which can greatly reduce the cost and effort needed to obtain protection in several countries. For example in the European Union, the Community Plant Variety Office grants a plant breeder’s right, which is valid in the territory of all its member States.