Rolf Jördens, Vice Secretary-General, UPOV Geneva, May 29, 2007 A BUSINESS-ORIENTED OVERVIEW OF INTELLECTUAL PROPERTY FOR LAW STUDENTS AGRICULTURAL SMEs and the PROTECTION of NEW VARIETIES of PLANTS

UPOV MISSION STATEMENT “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”

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 64 members

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 expensiveBUT Plant varieties can be easily and quickly reproduced èBreeders need protection to recover investment

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!

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 NO Authorization required NO Authorization required* Protected Variety A Breeder 1 Variety B Breeder 2 essentially derived varieties (1991 Act); *except for: essentially derived varieties (1991 Act); varieties which require repeated use of a protected variety (variety A); and varieties not clearly distinguishable from a protected variety (variety A). Variety C Breeder 3 NO Authorization 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 SEED BY FARMERS (“FARMER’S PRIVILEGE”)

1991 Act Article 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 VINES25 years OTHER PLANTS20 years To be counted from the date of grant

IV. BENEFITS

Executive summary available at: “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.”

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: :1, :2,300 Europe: European Community Europe: Non-European Community North America Asia / Pacific Latin America Africa Near / Middle East

SECTION III. Reports on Studies Conducted in Individual Countries: Argentina China Kenya Poland Republic of Korea

Argentina Figure 13. Number of Titles Granted Regulatory Decree No. 2183/91 UPOV membership Residents Non-residents

China (Maize) Figure 27. Royalties Collected in Henan Province (Maize) (Wheat) Figure 28. Royalties Collected in Henan Province (Wheat) Royalties Collected PVP introduction / UPOV Membership 10,000 RMB 1RMB=0.12 US$ (approximately) 10,000 RMB 1RMB=0.12 US$ (approximately) PVP introduction / UPOV Membership

China (Maize) Figure 29. Number of Breeders in Henan Province (Maize) (Wheat) Figure 30. Number of Breeders in Henan Province (Wheat) PVP introduction / UPOV Membership Number of other breeders Number of breeders at the Provincial Research Institute PVP introduction / UPOV Membership

Kenya Table 15. Number of Applications by crop (top 11 crops) ( ) Value (Million Kenyan Shillings) Volume (Tons) Figure 36. Export of Kenyan Cut Flowers PVP operational UPOV Membership Value Volume

Poland Figure 39. Number of Listed and Protected Potato Varieties Figure 40. Number of Listed and Protected Barley Varieties

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

BREEDERS Individuals Family 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 The company now has 37 employees, of which 17 are directly involved in research and development.

RELMO DSP (CH) WHEAT + OTHERS USA SOYBEAN South Africa SOYBEAN INIA (UY) SOYBEAN WHEAT MAIZE USA SOYBEAN FMT (BR) Matto Grosso Fundation RR gen Bt gen Monsanto MAIZE INTA (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

HOW TO BECOME A MEMBER OF UPOV State/Intergovernmental Organization must: 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 UPOV DISTANCE LEARNING COURSE (DL-205)