rolf jördens, vice secretary-general, upov geneva, may 29, 2007

Rolf Jördens,Vice Secretary-General, UPOV

Geneva, May 29, 2007

A BUSINESS-ORIENTED OVERVIEWOF INTELLECTUAL PROPERTY

FOR LAW STUDENTS

AGRICULTURAL SMEs and the PROTECTION of

NEW VARIETIES of PLANTS

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”

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

1. WHAT IS UPOV?

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 Plants

Union internationale pour la protection des obtentions végétales

•Members of the Union–States – Intergovernmental Organization(s)

•Permanent Organs–Council –Office of the Union

UPOV Membership/Territories covered

6464 membersmembers

Initiated the Procedure

19 States

1 intergovernmental organization

Members of UPOV (green) and initiating States and organizations

(yellow)

2. WHY IS IT IMPORTANT TO

PROTECT NEW PLANT VARIETIES?

•World population continues 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

• Plant breeding is long and expensive

BUTBUT

• Plant varieties can be easily and quickly reproduced

Breeders need protection to recover investment

PBR Titles in Force: All UPOV

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

1973

1975

1977

1979

1981

1983

1985

1987

1989

1991

1993

1995

1997

1999

2001

2003

To

tal

nu

mb

er o

f ti

tles

in

fo

rce

0

10

20

30

40

50

60

Nu

mb

er o

f U

PO

V m

emb

ers

Titles in Force: All UPOV

Number of UPOV members

3. WHICH ARE THE ESSENTIAL PROVISIONS

OF THE UPOV CONVENTION?

UPOV CONVENTION

i. Breeders and varieties

ii. Conditions of protection

iii. (a) Scope of the right, (b) exceptions and (c) duration

i. “BREEDERS” AND “VARIETIES”

BREEDER

VARIETY

THE ONE ENTITLED TO PROTECTION

THE SUBJECT MATTER OF PROTECTION

BREEDER

The person who bred, or discovered and developed, a variety

BREEDER

The person who bred, or discovered and developed, a variety

DISCOVERY OR FIND

DEVELOPMENT IS NECESSARY

BREEDER

The person who bred, or discovered and developed, a variety

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

PLANT KINGDOM

SPECIES

VARIETIES

ii. CONDITIONS FOR GRANTING A BREEDER’S RIGHT

Criteria to be satisfied

• NOVELTY

• DISTINCTNESS• UNIFORMITY• STABILITY

“DUS”(DHS)

Other requirements

• VARIETY DENOMINATION• FORMALITIES• PAYMENT OF FEES

NO OTHER CONDITIONS!NO OTHER CONDITIONS!

iii. (a) BREEDER’S RIGHT

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

MATERIAL COVERED

• All propagating material

• Harvested material under certain conditions

• All propagating material

SEEDS

• All propagating material

•Harvested material

IF obtained through unauthorized use of propagating material unless,

reasonable opportunity for breeder to exercise his right

• Variety X material is obtained in Country A and exported to Country B

Harvested Material

Country A

Country B

Breeder variety

X

• 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

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

1991 Act

Patented genetic element

Protected Variety A

Essentially Derived Variety B

Commercialization

Authorization REQUIRED

Authorization required

>===<

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

Acts done:

• privately and for non-commercial purposes

• for experimental purposes

• breeding other varieties

Farmer’s privilege (Optional)

THE BREEDER’S EXEMPTION

THE BREEDER’S EXEMPTION: Example

Commercialization

NOAuthorization

required

NOAuthorization

required*

ProtectedVariety A

Breeder 1

Variety B

Breeder 2

*except for: essentially derived varieties (1991 Act);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).

Variety C

Breeder 3

NOAuthorization

required

NOAuthorization

required

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

THE SAVING OF SEEDBY FARMERS

(“FARMER’S PRIVILEGE”)

1991 ActArticle 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

iii. (c) MINIMUM DURATION OF PROTECTION

TREES and VINES 25 years

OTHER PLANTS 20 years

To be counted from the date of grant

IV. BENEFITS

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

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 protection and membership 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...”

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.”

Applications: All UPOV

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

1973

1975

1977

1979

1981

1983

1985

1987

1989

1991

1993

1995

1997

1999

2001

2003

To

tal

nu

mb

er o

f ap

pli

cati

on

s

Development of Plant Variety Protection

Expansion of UPOV

Figure 5. Applications: All UPOV and CPVO: by region

Extending coverage to plant genera and species:

1975: 500 plant genera and species (approx.) 1985: 9001995: 1,3002005: 2,300

Europe: European CommunityEurope: Non-European CommunityNorth AmericaAsia / PacificLatin AmericaAfricaNear / Middle East

SECTION III. Reports on Studies Conducted

in Individual Countries:

ArgentinaChinaKenyaPoland

Republic of Korea

ArgentinaFigure 13. Number of Titles Granted

Regulatory Decree No. 2183/91

UPOV membershipResidents

Non-residents250

200150

100

50

19

80

19

84

19

86

19

88

19

90

19

92

19

94

19

96

19

98

20

00

20

02

19

82

China

Figure 27. Royalties Collected in Henan Province (Maize)(Maize)

Figure 28. Royalties Collected in Henan Province (Wheat)(Wheat)

Royalties Collected

PVP introduction / UPOV Membership

10

,00

0 R

MB

1R

MB

=0

.12

US

$ (

ap

pro

xim

ate

ly)

10

,00

0 R

MB

1R

MB

=0

.12

US

$ (

ap

pro

xim

ate

ly)

PVP introduction / UPOV Membership

China

Figure 29. Number of Breeders in Henan Province (Maize)(Maize)

Figure 30. Number of Breeders in Henan Province (Wheat)(Wheat)

PVP introduction / UPOV Membership

Number of other breedersNumber of breeders at the Provincial Research Institute

PVP introduction / UPOV Membership

Kenya

Crop Number ofApplications

1 Rose 2472 Maize 553 Tea 334 Wheat 305 Alstroemeria 286 Pyrethrum 237 French Bean 148 Limonium 149 Rape seed 1410 Dry Bean 1311 Macadamia Nut 11

Total 482

Table 15. Number of Applications by crop (top 11 crops) (1997-2003)

Valu

e (

Mill

ion K

en

yan S

hill

ings)

Volu

me (

Tons)

Figure 36. Export of Kenyan Cut Flowers

PVP operational

UPOV Membership

ValueVolume

Poland

Figure 39. Number of Listed and Protected Potato Varieties

Figure 40. Number of Listed and Protected Barley Varieties

Republic of Korea

Republic of Korea

Figure 52. Number of Rose Breeders

Figure 53. Number of Rice Breeders

Republic of Korea

BENEFITS OF UPOV MEMBERSHIP• Internationally accepted sui generis system

• Protection for Breeders in other UPOV members

• Benefit from the priority date (first application)

• Co-operation in examination

• Legal and Technical guidance

• Awareness / Influence of future developments

PARTICULAR BENEFITS FOR SMEs

Particular Benefits for SMEs

(a) Low “barriers to entry” into the breeding

(b) Simple and harmonized application system

(c) Harmonized and transparent system of variety examination:

• Purchase of DUS test reports

• Bilateral Agreements

• Mutual recognition of DUS test reports

• Centralized Testing

BREEDERSIndividualsFamily Co.N.A.R.I.

Farmers

Growers

Processing Industry

Consumers

Seed Multipliers

NEW VARIETIES

$ ROYALTIES / CO-FUNDING

Better products

Fill new demands

Broaden market

Return of invest Broaden market Joint ventures

Case Study

IP Management in the Development of a Medium-sized Argentinean Seed Company:

RELMÓ is a typical family company belonging to the Ferrarotti family. The origins of RELMÓ are to be found in the Ferrarotti Countryside Organization (OFPEC) which was established in the 1960s as the first company to devote itself to the genetic improvement of soybean. OFPEC was responsible for the program that led to the registration of the first Argentinean variety in 1980. The company now has 37 employees, of which 17 are directly involved in research and development.

http://www.wipo.int/sme/en/case_studies/relmo.htm

RELMO

DSP (CH)

WHEAT + OTHERS

USA

SOYBEAN

South Africa

SOYBEAN

INIA (UY)

SOYBEAN

WHEAT

MAIZE

USASOYBEAN

FMT (BR)

Matto Grosso Fundation

RR gen

Bt gen

Monsanto

MAIZEINTA (AR)

SOYBEAN

Seed Company

(AR)

MAIZE

Seed Company

(AR)

UPOV and SMEs

Articles:

Getting the Most out of Your New Plant Variety

Case studies:

IP Management in the Development of a Medium-sized Argentinean Seed Company: RELMÓ

http://www.wipo.int/sme/en/index.jsp?cat=varieties%20plants

HOW TO BECOME A MEMBER OF UPOV

State/Intergovernmental Organizationmust:

• Have a law which conforms UPOV Convention

• Ask advice of the Council of UPOV

• If advice positive: deposit instrument of accession

SUMMARY

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

DO YOU WANT TO LEARN MORE ABOUT UPOV?

CONSULT THE UPOV WEBSITE

http://www.upov.int

UPOV DISTANCE LEARNING COURSE (DL-205)