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POTATO PERSPECTIVES ON UPOV 



The UPOV (Union pour la Protection des Ob tent ions Vegetales) convention is, 

 in effect, an agreement between countries (currently about 23) to grant a mininum 

 level of protection for plant varieties on the basis of standard criteria. 

 Breeder's rights are granted upon a variety when it is deemed novel, distinct, 

 uniform and stable. A minimum of 15 years of protection is given for most 

 plants. Any protected variety must be freely available for breeding, such as the 

 source of initial variation in developing other varieties (part of the research 

 exemption clause). The U.S. signed this agreement and the 1978 revision is 

 currently in effect. However, this does not mean that our statutes are in 

 alignment with the UPOV treaty for all species and genera (such as the potato). 



Each country has its own set of laws to protect plant material to be in 

 alignment with the UPOV agreement. The PPA and PVPA are the U.S. statutes 

 intended to be part of this system of international protection of rights to plant 

 properties usually referred to as "breeder's rights". The U.S. laws for plant 

 IPR are not in alignment with most UPOV countries. Changes to the PPA are 

 necessary to bring the PPA into compliance with the 1991 UPOV convention. The 

 PVPA of 1970 provides the statute that most closely resembles the plant breeder's 

 rights defined by UPOV; however, only true-breeding seed crops are protected by 

 the PVPA. Interestingly, other than the US and Republic of Korea, there is no 

 distinction made between protection and mode of reproduction. 



Technology to genetically improve plant material has advanced, therefore 

 changes in the laws were made to have equitable levels of protection. The reason 

 being that the benefits to be derived by conventional plant breeding and from the 

 new biotechnologies are cumulative and not separate. One cannot replace the 

 other. It was desirable that equitable systems of incentive be created for both 

 the new biotechnologies and for the results of plant breeding. Moreover, it was 

 essential that systems of plant variety protection be created or maintained which 

 are complementary to patent protection for biotechnological inventions. 



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The U.S. has signed the revision of the 1991 UPOV Convention which mandates 

 several changes in the U.S. law. The changes are: 



1) requirement that all member countries, after certain transitional 

 periods, protect varieties of all plant genera and species; 



2) an increase in the term of protection to 20 years; 



3) extension of the scope of protection to harvested plant parts; 



4) limitation of the farmer's exemption to prohibit "over -the -fence" 

 sales ; 



5) expansion of the definition of Breeder's Rights to include the 

 reproduction of the protected variety and sale of a variety derived from 

 the protected one if the variety expresses the "essential characteristics" 

 of the protected variety. Simply stated, the variety which is 

 "essentially derived" from a protected variety cannot be exploited without 

 the authorization of the breeder of the protected variety. Essential 

 derivation includes the selection of a natural or induced mutant, or a 



