The UPOV sui generis system for the protection of plant ...isopb.mpob.gov.my/pdfFile/2nd/PAPER 17...

UPR 28 - Oil palm breeding

27-28/11/2006 ISOPB : UPOV System and Oil Palm H. Feyt & T. Durand-Gasselin

The UPOV sui generis system for the

protection of plant varieties

H. Feyt and T. Durand-Gasselin



INTELLECTUAL PROPERTY

COPYRIGHT INDUSTRIAL PROPERTY

PLANT

BREEDING

PATENTS INDUSTRIAL

MODELS AND

DESIGNS

BRANDS AND

DISTINCTIVE SIGNS

DESIGNATIONS

OF ORIGIN

Article 27 (2) of the Universal Declaration of Human Rights

adopted by the United Nations on 10 December 1948

“Everyone has the right to the protection of the moral and material interests

resulting from any scientific, literary or artistic production of which he is the author”.



The UPOV systemDescription of breeder’s rights (1991)

1/6

• Purpose:Promote among States the merits of breeders of new plant varieties, by setting in place an exclusive property right, based on uniform and clearly defined principles.

• Title of the property:The Grant of Breeder’s Right

• Beneficiary:The breeder, the breeder’s employer, or the successor in title of either of the previous two.



The UPOV systemDescription of breeder’s rights (1991)

2/6

• Scope of the Breeder's Right:All acts associated with marketing are subject to the prior authorization of the breeder (production, reproduction, conditioning for the purposes of reproduction or propagation, offering for sale, selling or other marketing, exporting or importing) in relation to:

- Reproduction or propagating material

- Harvested material

(if the product was obtained through the unauthorized use of propagating material and if the breeder has not had a reasonable opportunity to exercise his right).

- And, optionally (on the initiative of each State), products manufactured directly from the harvest

(if they were obtained by unauthorized use of the harvest product and the breeder has not had a reasonable opportunity to exercise his right)



The UPOV systemDescription of breeder's rights (1991)

3/6

These rights are extended to:

• Varieties essentially derived from the protected variety.

• Varieties that are not clearly distinguishable from the

protected variety.

• Varieties whose reproduction requires the repeated use

of the protected variety (hybrids)




4/6

• The convention is applicable to all plant genera and

species

- States already members:

. extension to all plant genera and species after

5 years.

- New members:

. at least 15 genera or species when membership

takes effect

. all other plant genera and species after 10 years.




5/6

• Minimum protection periods- Annual species: 20 years- Tree species: 25 years

• Territory of applicationThe territory of the issuing office (country, union of countries)

• Rule of reciprocity among member States

• Right of priority(date of first filing of application if extension of the protection to another State within a period of 12 months)




6/6

Exhaustion and limits of the breeder's right

• The breeder's right can only be exercised once, unless

the acts in question involve:

- further reproduction or propagation of the variety,

- export of material of the variety, which enables its

propagation, to a country not applying protection.

• The breeder's right can only be limited for reasons of

public interest, and subject to receiving equitable

remuneration.



The UPOV system

Exceptions to the breeder's right

This right does not extend to acts done

• Privately and for non-commercial purposes.

• For experimental purposes.

• For the purpose of breeding new varieties"Breeder's privilege".

• For the reproduction or propagation of the variety by the farmer for re-sowing on his own farm (optional)."Farmer's privilege".



The UPOV system

Conditions for the issuing of a Grant of Breeder's Right

• Distinctness(through one or more important traits from any other variety whose existence is a matter of common knowledge on the date the application is filed).

• Uniformity(subject to the particular features of its propagation).

• Stability(relevant traits remain unchanged after repeated propagation).

• Novelty(non-commercialization: tolerance of 1 year in the country where the application is filed, 4 or 6 years in another country).

• Denomination(the denomination must enable identification and must not induce any error or confusion as to the characteristics, value or identity of the variety, or to the identity of the breeder).



The UPOV systemChanges between the 1991 Act/1978 Act

1/2

A necessary adaptation

• Clarify certain provisions in the light of experience

acquired by the member States since 1961.

• Strengthen the protection afforded to breeders.

• Take technical progress into account

(biotechnologies, international transport, etc.).



The UPOV systemChanges between 1991Act/1978 Act

2/2

• Protectable variety concept1978: any variety, irrespective of origin, artificial or natural, of the initial variation from which it resulted.1991: simple discovery is not enough. The breeder must also have “developed his variety”.

• Extension of protection to all species

• Minimum protection period: 15 or 18 years ► 20 or 25 years

• Greater protection for breedersHarvested product and product of primary processing.

• The essentially derived varieties concept.

• Explicit acknowledgement of "farmer's privilege".



The UPOV system

Essential derivation 1/2

Definition of "Essential Derivation"

A variety is deemed to be essentially derived from an initial variety if:

a) it is mainly derived from the initial variety, conserving the

expression of the essential traits of the initial variety,

b) whilst it can clearly be distinguished from the initial variety, it

conforms to the initial variety except in differences resulting from

the derivation.



The UPOV system

Essential derivation 2/2

Example of essentially derived varieties:

. Natural or induced mutant

. Somaclonal variant

. Result of a series of backcrosses

. Result of genetic transformation (GMO)



PRINCIPLES OF ESSENTIAL DERIVATION

Initial variety protectedby a Grant of Breeder's RightVariety not distinct

from the initial variety Counterfeit

Not protectable

Essentially derived varietyDistinct, Protectable

Dependent on the initial variety

Distinct variety

Protectable

Not dependent on the initial variety



BC

A

C

C

C

C

C

C

UPOV Countrieson 08/09/2006

1991 Act AIPO countries1978 Act

62 member countries + EU +AIPO



The UPOV Convention

Essential points to remember:

• On 08/09/2006: 62 member countries + EU + AIPO

• It is tending to become global.

• The UPOV system recognizes and protects the "gene assembly" work of the breeder and not the genes themselves. There is no "appropriation of life"

• The genetic variability of the new varieties marketed is freely accessible to launch a new selection cycle: there is immediate sharing of the advantages.

• Model for the appropriation of life



The UPOV system and Oil Palm

• To date, no

oil palm

variety has

received a

grant of

breeder's

right




• Defining types of varieties:

– "Breeder's" varieties.

– Population hybrid varieties

– Full-sib family hybrid varieties

– "Family" varieties

– Clones

Contin

uum




Population hybrid varieties

Selected

Deli

population

Selected

Ekona

population

Selected

La Mé

population

Selected

Yangambi

population

Selected

Nigeria

population

Deli x Nigeria seeds Deli x Ekona seeds Yangambi x La Mé seeds



The UPOV system and oil palm

Full-sib family hybrid varieties

Selected

grandparen

t

2

Selected

grandparen

t 3

Selected

grandparen

t 4

Selected

grandparen

t 5

Selected

grandparen

t 1

Family 1 Family 2 Family 3 Self

Variety zz Variety yy




"Family" varieties

Selected

parent 2

Selected

parent 3

Selected

parent 4Selected

parent 1

Clone or self

of parent 1

Clone or self

of parent 3Clone or self

of parent 2

Clone or self

of parent 4

Variety zz Variety yy



Describing oil palm varieties

⇒ We need to find stable descriptors that are relevant through their ability to distinguish varieties from each other, and as easy to measure as possible (due to the cost).

• Vegetative measurements

• Bunch analyses

• Analysis of oil characteristics (proportion of a given fatty acid)

• Carotene content

• Phenotypic enzyme systems

• Pollen grains

This list is not exhaustive.

⇒ it will no doubt be possible to describe oil palm varieties.




DUS criteria for oil palm• Novelty and denomination: no problem.

• For distinctness: a great deal of statistics work will have to be carried out to define the limit values of each trait for each variety. It means taking into account the whole set of criteria adopted, which will make it possible to distinguish varieties from each other.

• The uniformity of oil palm varieties will have to be judged according to the constraints of the species. However, breeders will sometimes have to clarify, variety by variety, the genetic construction of their varieties.

• Stability assumes that the breeder is capable of reproducing year after year the characteristics of the variety he is disseminating.




Conclusions

• UPOV has a mandate 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".

• For oil palm, breeders will have to develop a set of relevant descriptors.

• It is no easy task, and we propose that an international initiative be undertaken by breeders, in relation with an ad hoc UPOV committee, to develop the system for describing oil palm varieties. ISOPB could play a major role in backing that initiative.



Thank you

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