International Union For The Protection of New Varieties of Plants - System of Protection

System of Protection

The Convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union. These concepts include:

• The criteria for new varieties to be protected: novelty, distinctness, uniformity, and stability.
• The process for application for a grant
• Intellectual property rights conferred to an approved breeder
• Exceptions to the rights conferred to the breeder
• Required duration of breeder's right
• Events in which a breeder's rights must be declared null and void

In order to be granted breeder's rights, the variety in question must be shown to be new. This means that the plant variety cannot have previously been available for more than one year in the applicant’s country, or for more than four years in any other country or territory. The variety must also be distinct, that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity and stability, mean that individual plants of the new variety must show no more variation in the relevant characteristics than one would naturally expect to see, and that future generations of the variety through various propagation means must continue to show the relevant distinguishing characteristics.

A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without waiting for a result from previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority.

The rights conferred to the breeder are similar to those of copyright in the United States, in that they protect both the breeder's financial interests in the variety and his recognition for achievement and labor in the breeding process. The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder also has the right to name the new variety, based on certain guidelines that prevent the name from being deliberately misleading or too similar to another variety's name.

There are explicit exceptions to the rights of the breeder, known as the "breeder's exemption clause", that make it unnecessary to receive authorization for the use of a protected variety where those rights interfere in the use of the variety for a private individual's non-monetary benefit, or the use of the variety for further research. For example, the breeder's rights do not cover the use of the variety for subsistence farming, though they do cover the use of the variety for cash crop farming. Additionally, the breeder's authorization is not required to use a protected variety for experimental purposes, or for breeding other varieties, as long as the new varieties are not "essentially derivative" of the protected variety.

The Convention specifies that the breeder's right must be granted for at least 20 years from grant date, except in the case of varieties of trees or vines, in which case the duration must be at least 25 years.

Finally, there are provisions for how to negate granted breeders' rights if the rights are determined to be unfounded. That is, if it is discovered after the application has been granted that the variety is not actually novel or distinct, or if it is discovered to not be uniform or stable, the breeder's rights are nullified. In addition, if it is discovered that the person who applied for protection of the variety is not the actual breeder, the rights are nullified unless they can be transferred to the proper person. If it is discovered after a period of protection that the variety is no longer uniform and stable, the breeder's rights are canceled.