APBREBES Report from the 2018 UPOV Session

by Francois Meienberg

UPOV’s bodies met in Geneva from 28th October to 2nd November.

The main topics of this report are the discussions on the Explanatory Note on Essentially Derived Varieties, the meeting of the ISC Working Group, the Interrelations with the International Treaty and the examination of the conformity of the PVP Act of Afghanistan.  

Administrative and Legal Committee (CAJ), October 31, 2018

Explanitary notes

The main topic of the CAJ was to consider the need for a revision of three Explanatory Notes (EXN): on Essentially Derived Varieties (EDV), on conditions and limitations concerning the breeder’s authorization in respect of propagating material and on provisional protection. The topics were introduced with presentations by three different breeders Organizations (ISF, ESA and CIOPORA), but no other input was given.  

All organizations asked for the Revision of the EDV Note in order to broaden the scope of protection of the initial variety. How to handle the impact of the new breeding techniques was another concern that was raised. The delegates were sympathetic to the breeders request and decided to organize a “Seminar on the impact of policy on essentially derived varieties (EDVs) on breeding strategy”, to be held on the morning of October 30, 2019. They further decided that the consideration of the revision of the Explanatory Notes would be included in the agenda for the of the CAJ in the afternoon of the same day.

The European Seed Association (ESA) was the only organisation that asked for a revision of the EXN on conditions and limitations concerning the breeder’s authorization in respect of propagating material. ESA asked for a  revision in order to introduce a specific example of a clause which already exist in the Swiss patent law and the PVP law, which clarifies that a contractual limitation of the breeder’s exemption should not be allowed.
In its intervention APBREBES confirmed the usefulness of such a clause and pointed out that not only the breeders exemption should not be undermined by contracts, but also the farmers privilege as enshrined in the national laws. The swiss patent law as well as the swiss PVP law have an article stating this principle „Any agreement which restricts or annuls the exceptions to the right to protection for the varieties referred to in art. 6 [Breeders Exeptions] and 7 [Farmers Privilege] shall be deemed to be null and void.“ Nevertheless the CAJ decided to not follow-up on the revision of this guidance.

Regarding the provisional protection nobody asked for a revision of the guidance and it was agreed to not follow-up on this issue.

ISC Working Group, October 31, 2018

The  International System of Cooperation (ISC) agenda item follows a 2014 proposal by industry associations, the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and CropLife International (CLI), that jointly represent the interests of the mainstream seed industry.

At the second meeting of the WG-ISC, it emerged that there was no concrete evidence to show that these were indeed the need of PVP offices. In contrast, UPOV’s own technical survey shows that ISC proposals are unjustified: “Vague Results Question the Need for Harmonized PVP Filing System in UPOV”.

At the meeting this year the WG-ISC further discussed the possible issues relevant for the needs of the PVP Offices and identified some elements (on DUS, Novelty, Denominations, Cooperation in administrative matters, Facilitating applications) to form a draft proposal for a possible international system of cooperation. The WG-ISC went through the identified elements, and it becames obvious that most needs could be (or are already) addressed by existing tools (like UPOV Prisma, Pluto and GENIE Database, UPOV Website). Therefore there is no need for something like a international system of cooperation. The Office of the Union will now prepare a draft document containing proposals, analysis and information on the identified elements to be discussed at the next meeting of the WG-ISC, to be held October 30, 2019

Consultative Committee, November 1, 2018

FAQ on the benefits of new varieties of plants for society

The Consultative Committee approved the FAQ on the benefits of new varieties of plants for society and at the same time requested the Office of the Union invite comments on the FAQ and consider the need of a revision during the next session of UPOV.

Feeding the World
New varieties of plants are an essential and sustainable means of achieving food security in the context of population growth and climate change.  The availability of an increasing choice of healthy, tasty and nutritious food at affordable prices relies on new varieties that are adapted to the environment in which they are grown and which provide a viable income for farmers.

Improving lives in rural and urban areas
In rural areas, innovation in agriculture and horticulture is important for economic development, with production of high value varieties of fruit, vegetables and ornamentals providing increased income for farmers and employment for millions of people around the world.  At a time of increasing urbanization, new varieties support the development of urban agriculture and the growing of ornamental plants, shrubs and trees that contribute to improving the urban environment.

Respecting the natural environment
Improved yield, more efficient use of nutrients, resistance to plant pests and diseases, salt and drought tolerance and better adaptation to climatic stress are some of the features that enable new varieties to increase productivity and product quality in agriculture, horticulture and forestry, whilst minimizing the pressure on the natural environment. 

Although this FAQ correctly mentions the undisputed benefits of new varieties, it is important to note that there is no causal link between these benefits and the UPOV System. It is evident that new varieties also are developed under PVP laws different to UPOV, under other IP systems or without any Intellecual Property Rights. Thus attributing the benefits of new plant varieties to UPOV is a misleading statement.


Interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)

The identification of interrelations emerged with the adoption in 2013 of Resolution 8/2013 on "Implementation of Article 9, Farmers' Rights" by the ITPGRFA Governing Body. Motivated by concerns that the activities of UPOV and the World Intellectual Property Organization (WIPO) were undermining the implementation of Article 9, the Resolution requested the ITPGRFA Secretariat "to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments". As a next step a symposium was held in October 2016 (Symposium Reveals Conflict in Interrelations Between UPOV and ITPGRFA; UPOV To Consider Proposals).

One year ago, the Consultative Committee decided to follow-up the discussion on Interrelations with the ITPGRFA by following means :

to “(i) to review the FAQ on the interrelations between the UPOV Convention and the ITPGRFA; and (ii) exchange of experience and information on the implementation of the UPOV Convention and the ITPGRFA, with the involvement of stakeholders.”

“As a next step, the Consultative Committee would consider the need for a revision of the current guidance in the “Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention” (document UPOV/EXN/EXC).”

In this session the Consultative Committee noted the proposals for revision of the FAQ on the interrelations between the UPOV Convention and the ITPGRFA, and the proposals on how to facilitate the exchanges of experiences and information on the implementation of the UPOV Convention and the ITPGRFA, with the involvement of stakeholders and the other proposals received. Read the Proposals made by APBREBES here. Surprisingly only now, one year after the process has started, the idea came up that the Vice-Secretary General should consult the Executive Secretary of the CBD and the Secretary of the ITPGRFA on how the objectives of the CBD and ITPGRFA might be reflected in the FAQ. Therefore the process to review the FAQ has been postponed to the next session.

Regarding the revision of the current guidance in the “Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention”” no step has been made. This task has not been further discussed during this CC meeting (see our intervention on this topic during the Council meeting).

Council, November 2 2018

Examination of the conformity of the Plant Variety Protection Act of Afghanistan with the 1991 Act of the UPOV Convention

The commercial seed sector in Afgahnistan (a least developed country) is still limited. According to ICARDA more than 60% of Afghan farmers use farm-saved seeds. The commercial seed market is strongest in vegetables, involving also foreign companies.

In April 2018 Afghanistan sent its draft PVP act to the Office of the Union, asking for comments. After having received the comments Afghanistan submitted the Act for its examination by the Council.

According the analysis by the UPOV Secretariat, nearly every article of the PVP Act of Afghanistan is not in conformity with UPOV 91. For example the article regarding Utilization of New Protected Plant Varieties by Farmers reads as follows :

(1) The farmers can use the new registered plant varieties of private ownership which are  derived 
from products of new plant varieties for propagation purposes in their farms and stock the 
propagation materials for use in subsequent seasons. 
(2) Farmers indicated in paragraph (1) of this article are not allowed to use the propagation of new 
registered plant variety materials of private ownership for commercial reproduction.  

The UPOV analysis states: It is recommended to amend Article 22 of the Act in order to incorporate the missing provisions of Article 15(2) of the 1991 Act. Evidently, such an amendment would further limit the farmers rights relating to farm-saved seeds. 

The council recommended that Afghanistan should incorporate the amendments in the “Plant Variety Protection Act” and to submit the revised act again.


Report by the President on the work of the ninety-fifth session of the Consultative Committee;

During the Report of the President of the Consultative Committee, APBREBES made following statement regarding the Interrelations with the International Treaty (see also above).

Adoption of documents

A minor change in Art. 4 of the Model Administrative Agreement for International Cooperation in the Testing of Varieties (TGP/5) is interesting as it links with the discussion going on in the Nagoya Protocol and the International Treaty: The fact that legally the physical material always includes the DNA or molecular information. The TGP/5 has been changed in the following way:

“(2) Except with the specific authorization of the Receiving Authority and the applicant, the Executing Authority shall refrain from passing on to a third person any material, including DNA, or molecular information, of the varieties for which testing has been requested.

At the same time, under the Nagoya Protocol or the International Treaty, the same governments still deny that the obligations for benefit-sharing extend to DNA or molecular information, pretending that the obligations for Benefit-Sharing only exist for material. As in many other cases, the basis ans scope for the enforcement of Intellectual Property Rights is much stronger then in the case of Benefit-Sharing.