International Union for the Protection of New Varieties of Plants (UPOV)
Overview of the International Union for the Protection of New Varieties of Plants (UPOV). The eLesson will explain the key elements of the 1991 UPOV Convention and the importance of intellectual property protection to encourage investment and innovation in plant breeding.
University of Nebraska, Department of Agronomy and Horticulture
The Ohio State University and University of Nebraska Dept of Agronomy and Horticulture
This eLesson is designed to provide plant breeders and associated professionals with a basic understanding of the International Union for the Protection of New Varieties of Plants (UPOV). The concepts covered by this section include: the purpose of the UPOV convention, eligibility criteria for protecting a new plant variety, understanding the exclusive rights of the breeder as well as key exemptions, and the benefits of the UPOV system to promoting innovation in plant breeding.
After completing this lesson, you will be able to :
1. Explain the over-arching intent or purpose of the International Union for the Protection of New Varieties of Plants (UPOV).
2. List and explain the key eligibility criteria for a new variety to receive protection under the UPOV framework.
3. List and explain the exclusive rights of the breeder, as well as, key exemptions to those rights.
4. Explain key benefits of the UPOV framework that supports investment in plant breeding, and contributes to agricultural sustainability and food security.
What is the International Treaty for the Protection of New Varieties of Plants?
The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization that was established in 1961 and is based in Geneva, Switzerland. The purpose of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.
The UPOV Convention provides a consistent and harmonized intellectual property framework at the international level, for which countries and intergovernmental organizations can adhere to. In order to become a member, a country or intergovernmental organization must have a domestic Plant Breeders’ Rights (PBR) or Plant Variety Protection (PVP) law that meets the minimum requirements of the UPOV Convention. At present, (2014) there are 70 countries and 2 inter-governmental organizations that are members of UPOV, but this changes over time as more countries become signatories:
International map of UPOV member countries (green) and other countries (brown) that have initiated the process of developing a UPOV based Plant Breeders’ Rights (PBR) law. (Imaged source from the UPOV website http://www.upov.org/members/en/
It is important to provide a mechanism for protecting plant varieties, because plant breeding is a time consuming, expensive, and resource intensive activity. However, plants can easily and quickly be reproduced, sometimes without permission of the breeder or without fairly compensating him/her for their investment and effort. Successful breeding requires great skill and knowledge, as well as, specialized equipment (for example, greenhouses, growth chambers and laboratories).
Often it can take many years to bred a successful plant variety (7 to 15 years depending on the species), but not all new varieties will be successfully adopted in the marketplace. As such, a breeder is taking a risk when developing a new variety, but if successful, the benefits to farmers and society can be enormous. A UPOV based PBR/PVP law, makes it possible for a breeder to protect his/her variety in the marketplace and receive a return on his/her investment, as well as, encourage reinvestment plant breeding.
The breeder’s “right” means that authorization is required from the breeder to propagate the variety for commercial purposes. The UPOV Convention specifies the acts that require the breeder’s authorization in respect of the use propagating material (e.g. seed) of a protected variety and, under certain conditions, in respect of the harvested material (e.g. grain or fruit). UPOV members may also decide to extend protection to products made directly from harvested material, under certain conditions.
In order to obtain protection for a new variety, the breeder needs to file an application with each national PBR or PVP Office in the specific region or country in which he/she plans to release that variety:
UPOV logo from: http://www.upov.int/about/en/
Criteria for Protection
For a plant variety to be eligible for protection there are some basic criteria that the breeder must meet. These four fundamental criteria are applied consistently across all UPOV member countries and organizations. According to the 1991 Act of the UPOV Convention, the breeder’s right shall be granted where the variety is:
(iii) uniform and
Newness or novelty: In order for a variety to be considered “new”, the propagating or harvested material of that variety cannot have been sold in the country of filing for over 1 year. Additionally, the propagating or harvested material of that variety cannot have been sold in another UPOV member country for over 6 years in the case of trees and vines, and 4 years for all other plant species. A specified time limit is set for seeking protection in various UPOV member countries so the breeder does not prolong the length of time he/she can benefit from protection beyond a reasonable time frame by delaying protection in various countries. Also, the difference in set time frames, 4 years for all plant species except trees and vines which are 6 years, acknowledges the slower growth and multiplication of these types of plants.
Distinctness: Another condition of protection is that the applicant must demonstrate that the variety is “distinct”, meaning it must be clearly distinguishable from all other varieties of common knowledge at the time of filing the application. In order to establish “distinctness” of a plant variety it is usually necessary to carry out various tests whereby the candidate variety seeking protection is grown along with other similar reference varieties for comparative purposes. In order to establish that the candidate variety is in fact “distinct” it must differ from the other varieties in at least one “clearly distinguishable” characteristic. The characteristic(s) of interest used to establish distinctness can be either qualitative (observable) or quantitative (measurable) in nature. It is important to emphasize, it must be shown that the candidate variety differs from other varieties by at least one clearly distinguishable characteristic in order to meet the criteria of being “distinct”. The UPOV Office provides guidance on how “distinctiveness” can be assessed based on phenotypic/morphological characteristics for various plant species and crop kinds:
Uniformity: The plant variety seeking protection must also be deemed to be “uniform” (or sufficiently uniform in its relevant characteristics) in order to be eligible for protection. This means that propagating material of the variety must be homogeneous in appearance, and if there is variation in the expression of characteristics or off-types, the occurrences must be within acceptable tolerances/standards for that particular species or crop kind. The UPOV Office provides guidance on the acceptable tolerances for variances in the expression of characteristics or presence of off-types, based on the specific plant species or crop kind being assessed.
Stability: The plant variety must remain stable in its relevant characteristics so that it remains unchanged after repeated cycles of propagation.
Unique Protection for Certain Types of Varieties
In addition to providing a mechanism for protecting varieties arising from plant breeding, the UPOV Convention spells out special considerations for three specific types of varieties, namely:
1) Varieties which are “essentially derived” from a protected variety
2) Varieties which are not clearly distinguishable from a protected variety
3) Varieties whose production requires the repeated use of a protected variety
Essentially derived variety (EDV): Is a plant variety that is predominantly derived from another variety, and retains the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety from which it was bred. The EDV must also be clearly distinguishable in the expression of its few changed characteristics when compared to the initial variety from which it was bred. Since EDV’s only differs from the initial variety in a few key characteristics, it is usually the result of selecting natural or induced mutants, a somaclonal variant, or selecting individual variant plants from backcross breeding or genetic transformation. An example of an EDV would be backcrossing a gene for resistance to a specific pathogen from a donor parent into a high performing recurrent parent. This would result in a new variety that retained all the essential characteristics of the initial variety, but was clearly distinguishable in one key difference, the disease resistance.
The purpose of having an EDV provision within UPOV is to ensure that the breeders of successful and innovative plant varieties are acknowledged and fairly compensated when another breeder only makes minor changes to that variety. Any breeder can use a protected initial variety (Variety A) to breed an EDV (Variety B). The breeder of an EDV variety can seek protection of that variety without seeking permission from the breeder of the initial variety. However, if a breeder of an EDV wishes to commercialize and sell that variety that must reach an agreement with the breeder of the initial variety.
Example: (Click on the image to see a larger version)
Varieties which are not clearly distinguishable: This provision means that if a breeder protects a variety (Variety A) and another variety is identified (protected or not) that is indistinguishable from that variety (Variety B), the breeder’s right extends to also include the variety that is not clearly distinguishable. The intent is to curtail plagiarism or forgery of someone else’s innovation.
Example: (Click on the image to view a larger version)
Varieties whose production requires the repeated use of a protected variety: Some commercially available varieties, such as hybrids, are the result of crosses made between two or more parental varieties. The UPOV Convention requires that if a protected variety is used repeatedly to produce another variety, then protection is extended to that other variety that is produced (e.g. the hybrid).
Click on the image above to view a larger version.
What are the exclusive “rights” of the breeder?
Under the UPOV 1991 Convention, if a breeder satisfies all the conditions for protection for their new plant variety, they are granted exclusive rights to do the following acts in respect of the propagating material of that protected variety:
(i) production or reproduction (multiplication),
(ii) conditioning for the purpose of propagation,
(iii) offering for sale,
(iv) selling or other marketing,
(vii) stocking for any of the purposes mentioned in (i) to (vi), above.
All these acts are usually associated with sale of the plant variety, or preparation of propagating material for the purpose of sale. The breeder can also enter into licencing agreements with other parties (e.g. seed growers) to authorize (conditionally or unconditionally) some or all of the acts contained in (i) to (vii). In situations where there was an “unauthorized use” of propagating material (e.g. seed) of a protected variety, and the breeder did not have a reasonable opportunity to exercise his/her rights, the breeder’s right is extended to the harvested material of the variety (e.g. grain or fruit). Under the UPOV 1991 Convention, the exclusive rights of the breeder are enforceable for up to 20 years for all plant species, except trees and vines which are 25 years. Of course, a breeder can surrender rights at any time if he/she no longer wishes to have intellectual property protection on the variety.
Key exemptions to the breeder’s right
The UPOV 1991 Convention contains key exemptions to the “breeder’s right” intended to balance interests and ensure benefit sharing. The mandatory exemptions to the breeder’s right include:
(i) acts done privately and for non-commercial purposes,
(ii) acts done for experimental purposes
(iii) acts done for the purpose of breeding other varieties
Acts done privately and for non-commercial purposes: This provision allows amateur gardeners to use propagating material for use in their own garden without seeking authorization so long act is private and non-commercial. Additionally, a farmer can propagate a protected variety to be used exclusively for the production of a food crop to be consumed entirely by that farmer and his/her dependents (i.e. subsistence farming).
Acts done for experimental purposes: The breeder’s right does not extend to the use of a protected variety for experimental purposes. This means that a researcher or scientist can conduct studies on a protected variety, and publish results of those investigations, without seeking authorization from the right’s holder. This is an important provision which encourages contribution to the body of scientific knowledge about various plant varieties.
Acts done for the purpose of breeding other varieties: This is a fundamental element of the UPOV system, ensuring that no restrictions can be placed on protected varieties for the purpose of breeding new plant varieties. This means that breeders can always use protected varieties in their breeding program to contribute to developing improved varieties which benefit farmers and society in general.
Farmer’s Privilege: The UPOV Convention contains an optional provision which allows member countries to further restrict the breeder’s right, permitting farmers to use propagating material obtained from their own holdings, to subsequently grow crops. This exemption to the breeder’s right is often known as the “farmer’s privilege”.
Benefits of the UPOV system
In 2005 the International Union for the Protection of New Varieties of Plants (UPOV) published a study entitled “UPOV Report on the Impact of Plant Variety Protection” which examined the benefits on several countries that implemented domestic laws based on the UPOV framework.
The study found improvements in four key areas:
a) Increase number of new varieties
b) Improvement of varieties
c) Introduction of foreign varieties
d) Improvements in domestic breeding
Increase in the number of new varieties: A general trend was demonstrated that after the introduction of a plant protection law based on UPOV, the number of new varieties being released increased. This was true not only for staple agricultural crops such as barley, maize, rice, soybean, and wheat, but also horticultural crops and ornamental plant varieties. The net benefit is that it offers increased choice to farmers in obtaining new and improved plant varieties, and an increased diversity of food products that are available to consumers.
Improvement of varieties: A trend was observed in many countries showing improvements in the performance of new varieties when compared to older varieties. The adoption rate by farmers of improved new varieties increased dramatically in some situations. For example, in Argentina the use of certified seed increased from 18% to 82% for wheat varieties, and 35% to 94% for soybean varieties during the period between 1994 and 2003.
Introduction of foreign varieties: The report showed an almost universal trend of foreign breeders (non-resident) seeking protection of their varieties in countries that have just became new UPOV members. One of the key elements of UPOV membership is the concept of “national treatment and reciprocity”. What this means is that a breeder residing in any UPOV country can apply for protection in any other UPOV member country. This promotes the introduction of new plant varieties into many different markets and jurisdictions, offering farmer’s choice and diversity in the varieties they use. This also supports domestic breeding programs as under the mandatory “experimentation and breeder exemptions” anyone can conduct scientific studies and use protected varieties to breed new varieties. As such, the introduction of new plant varieties by foreign breeders can be an important source of genetic diversity for domestic breeding programs.
Improvements in domestic breeding: This study showed a general improvement in two areas of domestic breeding; a) an increase in the number of breeding entities and varieties, and b) a diversification in the types of breeders. Some interesting trends emerged in many of the countries where the number of breeding entities in both the public and private sectors increased with adoption of a UPOV based law. In addition, the diversity of those breeding activities appeared to increase, releasing more new varieties. The study also showed that the diversity of plant breeding activities also increased with a UPOV based law. For instance, the Republic of Korea showed not only an increase in rice breeding, but diversity in the types of entities engaged in this activity; a) individual rice breeders (farmer breeders), b) university researchers, c) government researchers, and d) private commercial breeders with adoption of a UPOV based law.
UPOV Convention at Work
UPOV Convention at Work: Benefits to the Kenyan Agricultural/Horticultural Sectors
Kenya has a total land surface of 58 million hectares with approximately 7 million hectares under agricultural production. The agriculture sector contributes 26% to the gross national product of Kenya, but over 60% of all export revenues come from agriculture. This indicates how important agriculture is to the Kenyan economy. The Kenyan population is continuing to increase. In 1970 the population of Kenya was 20 million, but today it has increased to 42 million today. Essentially, the population has doubled in a time frame of 40 years. As a consequence, food productivity will need to increase and the diversity of plant varieties and species under cultivation will also need to increase. Kenya is not without its challenges in the agriculture and horticulture sectors. Often weather patterns can be unpredictable, which can lead to crop failures. As such, Kenya will require continued access to innovative new plant varieties and improved production techniques to mitigate crop losses.
In 2005 the UPOV Office published a report on the impact of Plant Variety Protection (PVP) in various countries, including Kenya. The study found that in a seven year period (1997 to 2004) after introduction of PVP system in Kenya, several positive impacts were observed. A significantly higher number of varieties were developed and released into the Kenyan marketplace in the six-year period after the introduction of PVP (1997-2003), when compared to the previous six-year period (1990-1996). In addition, a dramatic increase was observed in the introduction of foreign varieties, especially in the horticultural sector. This resulted in a diversification of the horticultural sector and the emergence of a flower industry. Kenya has now become a significant competitor in the global cut flower industry and a major exporter of horticulture crops, specifically vegetables. A UPOV based PVP law also facilitated an increase in the number of domestically bred agriculture varieties with improved characteristics (e.g. yield, pest and disease resistance, abiotic stress tolerance, improved nutritional qualities, and early maturity).
The development of these improvements benefitted not only commercial agricultural production, but also subsistence farmers. Introduction of a UPOV based PVP law facilitated public-private plant breeding partnerships, including collaborative relationships between international research institutes (i.e. CGIAR Centers) and Kenyan based seed companies. Another benefit observed was the emergence of new breeding entities such as university researchers and private farmer-breeders. At present, the horticulture sector employs 2 million people directly, and indirectly another 3.5 million in associated activities which support the sector. Improving the intellectual property environment has also increased investment by the private sector in breeding new plant varieties, and encouraged collaborative relationships between private-public breeders. Within the last 20 years, the number of seed companies in Kenya has dramatically increased from 13 to 83, with the majority being in the private sector. It is evident that the introduction of a UPOV based PVP law had a positive effect on the agricultural and horticultural sectors, increasing investment and access to new plant varieties, resulting in benefits to Kenyan farmers and producers and the Kenyan economy.
Interested in how other's have benefited from UPOV?
Check out the “Ashiro Rindo” story and how breeding Japanese Gentian flowers helps support community employment and development.
Click on the image above to view the video.
How do I apply for plant variety protection (PVP) of my new plant variety?
If a breeder wishes to protect propagating material of their new plant variety, he/she must file an application in each member country in which they interested in releasing or selling that variety. A complete listing of national plant breeders’ rights/plant variety protection offices is available on the UPOV website:
Interested in learning more about UPOV?
Below are some interesting websites to expand your knowledge of UPOV:
Introduction to UPOV:
Ashiro Rindo Story:
Benefits of the UPOV System:
1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV) Convention
Explanatory Notes on the UPOV Convention
International Union for the Protection of New Varieties of Plants (2005), UPOV Report on the Impact of Plant Variety Protection
International Union for the Protection of New Varieties of Plants (2012), Symposium on the Benefits of Plant Variety Protection for Farmers and Growers, November 2, 2012, Geneva Switzerland.