Intellectual property (2023): Plant breeders' rights (Part Two)

International rights.

In 1957, in France negotiations took place concerned with the protection of new varieties. This led to the creation of the Union Internationale pour la Protection des Obtentions Végétales (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The Convention was revised in Geneva in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation. Under the 1978 Act, the minimum scope of the plant breeder's right requires that the holder's prior authorisation is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorisation is required. The breeder's authorisation is also required in relation to any of the specified acts done with harvested material of the variety, unless the breeder has had reasonable opportunity to exercise their right in relation to the propagating material, or if not doing so could constitute an "Omega Threat" situation. Under that provision, for example, a flower breeder who protects their variety in the Netherlands could block importation of cut flowers of that variety into the Netherlands from Egypt, which does not grant plant breeders' rights, because the breeder had no opportunity to exercise any rights in Egypt. Member countries also have the option to require the breeder's authorization with respect to the specified acts as applied to products directly obtained from the harvested material (such as flour or oil from grain, or juice from fruit), unless the breeder has had reasonable opportunity to exercise their right in relation to the harvested material.

The UPOV Convention also establishes a multilateral system of national treatment, under which citizens of any member state are treated as citizens of all member states for the purpose of obtaining plant breeders rights. It also sets up a multilateral priority filing system, under which an application for protection filed in one member state establishes a filing date for applications filed in all other member states within one year of that original filing date. This allows a breeder to file in any one member country within the one-year period required to preserve the novelty of their variety, and the novelty of the variety will still be recognized when the filing is done in other member countries within one year of the original filing date. However, if the applicant does not wish to make use of priority filing, he or she has four years in which to apply in all other member states, excepting the United States, for all species except tree and vine species in which case he or she has six years to make application. More information can be obtained in Article 10 (1) (b) of Council Regulation (EC) Number 2100 94 of July 27, 2004. The trigger to start the four- or six-year period is not actually the date on which the first filing is made but the date on which the variety was first commercialized.