Plant variety rights

Background

Securing a proprietary position for new products from the HortResearch plant breeding programmes is essential in order to generate licensing and royalty income on a sustainable basis. Such income can provide independence plus flexibility and latitude for new directions in both financial and project management within breeding programmes. Royalties are also the principal means for HortResearch to generate a return on the breeding investment.

To achieve a viable proprietary position and maximise the commercial value of the cultivars arising from breeding programmes, it is essential to take advantage of the proprietary rights granted under appropriate intellectual property protection legislation.

Legislative Protection of Plant Varieties

There are two types of legislative protection for intellectual property particularly applicable to plant varieties – Plant Variety Rights and Plant Patents. Utility Patents for plant varieties are also possible in many countries but are not commonly used.

Plant Variety Rights

Plant Variety Rights legislation around the world is based on the UPOV Convention. The International Union for the Protection of New Varieties (UPOV) is an intergovernmental organisation established by the International Convention for the Protection of New Varieties of Plants, which was signed in Paris in 1961. The UPOV Convention entered into force in 1968 and has been revised in 1972, 1978, and 1991. The 1978 and 1991 Conventions are the primary basis for Plant Variety Rights (PVR) legislation around the world today.

Not every country in the world has adopted PVR legislation and where a country has introduced legislation not all crops may be covered. UPOV assists countries with the introduction of PVR legislation and the UPOV Convention defines the basic concepts that must be included in the domestic laws of the country. There are currently 54 UPOV member countries - the European Union (EU) is an exceptional case with regard to PVR as a single grant to protect the variety in all EU States is available – protection on a state by state basis is also available within the EU.

The TRIPs component of GATT requires that GATT signatories have a commitment to introduce intellectual property protection. This should mean increased availability of plant variety protection in additional countries in future.

The UPOV mission statement encapsulates the ethos of this form of plant variety intellectual property right: “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.”

USA – an exception to the PVR Rule

Although the USA is a UPOV member, the Plant Variety Protection legislation offered in the USA does not cover asexually reproduced plants (except tubers). Legislative protection for asexually reproduced plants in USA is offered in the form of a Plant Patent. One of the conditions the USA placed on its becoming a UPOV signatory was that they could continue to provide protection for asexually reproduced plants under their existing Plant Patent legislation.

Plant variety intellectual property rights give breeders control over the commercialisation of their varieties helping them to obtain a financial return from their efforts and investment, and at the same time provides a competitive advantage to business entities undertaking plant variety commercialisation.