Harmonised Filing System For Plant Variety Protection Discussed At UPOV

An industry proposal calling for a harmonised procedure to simplify applications for new varieties of plants and heighten intellectual property protection stirred debate at the International Union for the Protection of New Varieties of Plants (UPOV) last month.

The initial proposal was tabled at a meeting of the UPOV governing body in October, was discussed last month and is due to be discussed further by member states at the next session of the organisation’s governing body. Civil society has voiced concerns at what they see as reduced flexibility for member states and a potential revision of the UPOV Act.

The International Union for the Protection of New Varieties of Plants (UPOV) governing and technical bodies met last month, from 23-27 March. The Administrative and Legal Committee (CAJ) met on 26 March, the Consultative Committee (CC), and the UPOV Council on 27 March. The Technical Committee met from 23-25 March.

The UPOV Council is the governing body of the organisation, the CAJ deals with administrative, legal and financial matters of UPOV, and the CC discusses policy issues that will be recommended for adoption by the Council. The CC meetings are closed to observers. The bodies usually meet twice a year, once in spring and once in autumn.

Button Extended as Head of UPOV

The Council decided to extend the appointment of the Vice-Secretary General Peter Button from 1 December 2015 until 30 November 2018, according to the press release. Button, a United Kingdom national, was first appointed as head of UPOV on 1 December 2010. His appointment was extended a first time from 1 December 2012 until 30 November 2015. Previous to that position, he was UPOV technical director since 2000. He also was general manager for Twyford Seeds, a UK plant breeding company from 1981 to 1987.

Harmonised System: Industry Necessity?

At the last meeting of the UPOV governing bodies in October, three organisations representing the interests of breeders (International Seed Federation (ISF) and CropLife, supported by the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties [CIOPORA]), presented a proposal for a new International System of Cooperation (ISC). The system, which foresees a centralised application filing system, was examined last month by the UPOV Consultative Committee.

Civil society, meanwhile, has been voicing concerns since the proposal was tabled in October about possible implications for UPOV members.

According to ISF Secretary General Michael Keller, the proposal is a priority for the industry. The current UPOV system is slightly complicated, he told Intellectual Property Watch. There is a need for a multilateral approach since outside of the European Union, only about three percent of plants are protected in more than three different countries, he said.

The proposal, Keller said, is for member states to consider as a way for the UPOV system to provide more reciprocal recognition between members so that breeders do not have to go through each individual system to register their new varieties. “We know it is not easy and cannot be done from one day to the next,” he said.

UPOV: More Time Needed

Peter Button, UPOV vice-secretary general, said the CC “concluded that more time was needed to discuss the issues raised by a possible international system of cooperation and agreed that the matter should be considered further at its ninetieth session, in October 2015.”

“In order to facilitate its considerations, the Consultative Committee agreed that the Office of the Union [UPOV] should produce a document with more information about the need for an international system, providing a business analysis and cost estimate,” he told Intellectual Property Watch.

Industry View

On 10 April, ISF, CropLife and CIOPORA issued a joint press release explaining that the International System of Cooperation “would build on the current UPOV system by increasing its accessibility to plant breeders worldwide and helping them to overcome the obstacles they face in securing Intellectual Property rights in UPOV member states.”

“Member surveys by ISF, CropLife and CIOPORA showed that deviation from national application procedures, multiple language regimes, cost and time were the main obstacles,” they added.

In particular, such a system would allow breeders to file plant breeders’ rights (PBR) applications in various countries through a unified procedure, but is not “envisioned to replace local PBR laws, and each jurisdiction would still maintain complete sovereignty in their application process.”

According to the press release, “Studies show that an effective UPOV-like system for PBR benefits farmers too by introducing new foreign varieties; increasing the number of domestic bred varieties; improving characteristics of varieties in certain crops; and increasing availability of crops.” The lack of effective protection for new varieties of plants restricts the availability of new and improved plants, the release said.

Through an electronic application form being developed by UPOV, they said, “the new system will allow breeders to apply for PBR in multiple countries in the language of their choice.”

The International System of Cooperation (ISC) could increase incentives for IP protection, and potentially encourage more investment in plant breeding and variety development,” they said

Concerns of Global Seed Industry Consolidation

According to the Third World Network (TWN), “The ISC proposal is UPOV- plus with legal implications for individual UPOV members and will involve significant administrative, resource and financial implications. Thus if an ISC is to be established it will require a legal framework comparable to UPOV Acts of 1978 and 1991 whereby countries that wish to be parties to the ISC would have to formally accept the Treaty through accession or ratification process.”

TWN provided a detailed analysis of the proposal in November. The TWN paper said the three proponents of the proposal represent the interests of the seed industry, “including multinational seed companies such as Monsanto, Syngenta, Bayer, DuPont Pioneer, and DowAgroScience, – which continue to control about 75 % of all private sector plant breeding research, and 60 % of the commercial seed market -, and seed giants in the ornamental and fruit sectors.”

In TWN’s view, “The main aim of the seed industry is to consolidate and expand their control globally over the seed sector by enhancing their rights as well as to strengthening their ability to claim plant breeders’ rights (PBRs), as easily and quickly as possible, in many more countries, and on many more crops.”

“The final outcome of the ISC is to deepen harmonization and impose binding obligations with regards to the harmonized elements on UPOV Members that are part of the ISC, consequently, reducing the flexibility that UPOV members have,” it said.

According to TWN, the ISC would require negotiating a new UPOV Act. “Once established, countries that wish to be parties to the ISC would have to formally accept the Treaty through accession or ratification process. Such a treaty would also establish its own administrative and financial processes, to be overseen by Contracting Parties of that treaty,” it said.

In this context, it said, “an important question that arises is whether UPOV members have the mandate to authorise or engage in negotiations on a new treaty to establish ISC.”

Meanwhile, Button did not rule out the possibility of it leading to legal changes. He told Intellectual Property Watch, “We are at an early stage of discussing the concept of an ISC. Possible options for a legal framework is amongst the issues that would need consideration at some point.”

Member Countries Consider Proposal

The ISC was discussed by member states at the CC and according to several sources, they asked that the proposal be further examined at the next session of the UPOV governing bodies in October.

According to a United States Patent and Trademark Office source, “the USPTO supports cooperation among plant variety protection offices to improve efficiency and transparency in the application process.”

“With regard to the proposed International System of Cooperation, we are still studying the proposal and the surrounding issues. We support the request for the UPOV Office to provide additional information, and we will incorporate that information into our study,” the source said.

A developing country source said “any initiative that evidences cooperation programs such as technology transfer, capacity building or any other form that facilitates cooperation is extremely positive.”

However, the source said, “we also believe that the existence of an efficient and effective cooperation should have been discussed enough in order to avoid potential problems that may submit in the future.” The source said his country supported the postponement of a decision on this point to the next session of the council.

Another developing country asked what kind of problem the ISC was trying to address and said the current system is working properly, according to a source.

Other Agenda Items, Draft Legislation

Also on the agenda [pdf] of the Council was the examination [pdf] of the conformity of the draft legislation of Egypt on plant varieties with the 1991 Act of the UPOV convention. And on the agenda was the examination [pdf] of the Iran draft Act of Plant Varieties Registration, Control and Certification of Seeds and Plant Materials of 2003, with the 1991 Act of the UPOV convention.

A UPOV press release [pdf] on 27 March said the Council took a positive decision on the conformity of the Egyptian draft legislation with UPOV 1991. That will allow Egypt, “once the draft law is adopted with no changes and the Law is in force, to deposit its instrument of accession to the 1991 Act.”

According to Button, “At the request of the Seed and Plant Certification and Registration Institute (SPCRI) of the Islamic Republic of Iran, the Council agreed to defer the examination of the conformity of the ‘Act of Plant Varieties Registration, Control and Certification of Seeds and Plant Materials of 2003’ of the Islamic Republic of Iran with the 1991 Act of the UPOV Convention, to the forty-ninth ordinary session of the Council, to be held in October 2015.”

During the session the inter-relation between UPOV, WIPO and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) of the UN Food and Agriculture Organisation was also discussed (IPW, UPOV, 2 April 2015).

 

Image Credits: Flickr – Nicolas_gent