UPOV Convention: 1991 Act

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INTERNATIONAL CONVENTION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS

of December 2, 1961, as Revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991

CHAPTER I

DEFINITIONS

Article 1

Definitions

For the purposes of this Act:

(i)

"this Convention" means the present (1991) Act of the International Convention for the Protection of New Varieties of Plants;

(ii)

"Act of 1961/1972" means the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as amended by the Additional Act of November 10, 1972;

(iii)

"Act of 1978" means the Act of October 23, 1978, of the International Convention for the Protection of New Varieties of Plants;

(iv)

"breeder" means

-	the person who bred, or discovered and developed, a variety,

-	the person who is the employer of the aforementioned person or who has commissioned the latter's work, where the laws of the relevant Contracting Party so provide, or

-	the successor in title of the first or second aforementioned person, as the case may be;

(v)

"breeder's right" means the right of the breeder provided for in this Convention;

(vi)

"variety" means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, can be

-	defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

-	distinguished from any other plant grouping by the expression of at least one of the said characteristics and

-	considered as a unit with regard to its suitability for being propagated unchanged;

(vii)

"Contracting Party" means a State or an intergovernmental organization party to this Convention;

(viii)

"territory," in relation to a Contracting Party, means, where the Contracting Party is a State, the territory of that State and, where the Contracting Party is an intergovernmental organization, the territory in which the constituting treaty of that intergovernmental organization applies;

(ix)

"authority" means the authority referred to in Article 30(1)(ii);

(x)

"Union" means the Union for the Protection of New Varieties of Plants founded by the Act of 1961 and further mentioned in the Act of 1972, the Act of 1978 and in this Convention;

(xi)

"member of the Union" means a State party to the Act of 1961/1972 or the Act of 1978, or a Contracting Party.

CHAPTER II

GENERAL OBLIGATIONS OF THE CONTRACTING PARTIES

Article 2

Basic Obligation of the Contracting Parties

Each Contracting Party shall grant and protect breeders' rights.

Article 3

Genera and Species to be Protected

(1)	[States already members of the Union] Each Contracting Party which is bound by the Act of 1961/1972 or the Act of 1978 shall apply the provisions of this Convention,

(i)

at the date on which it becomes bound by this Convention, to all plant genera and species to which it applies, on the said date, the provisions of the Act of 1961/1972 or the Act of 1978 and,

(ii)

at the latest by the expiration of a period of five years after the said date, to all plant genera and species.

(2)	[New members of the Union] Each Contracting Party which is not bound by the Act of 1961/1972 or the Act of 1978 shall apply the provisions of this Convention,

(i)

at the date on which it becomes bound by this Convention, to at least 15 plant genera or species and,

(ii)

at the latest by the expiration of a period of 10 years from the said date, to all plant genera and species.

Article 4

National Treatment

(1)

[Treatment] Without prejudice to the rights specified in this Convention, nationals of a Contracting Party as well as natural persons resident and legal entities having their registered offices within the territory of a Contracting Party shall, insofar as the grant and protection of breeders' rights are concerned, enjoy within the territory of each other Contracting Party the same treatment as is accorded or may hereafter be accorded by the laws of each such other Contracting Party to its own nationals, provided that the said nationals, natural persons or legal entities comply with the conditions and formalities imposed on the nationals of the said other Contracting Party.

(2)	["Nationals"] For the purposes of the preceding paragraph, "nationals" means, where the Contracting Party is a State, the nationals of that State and, where the Contracting Party is an intergovernmental organization, the nationals of the States which are members of that organization.

CHAPTER III

CONDITIONS FOR THE GRANT OF THE BREEDER'S RIGHT

Article 5

Conditions of Protection

(1)	[Criteria to be satisfied] The breeder's right shall be granted where the variety is

(i)

new,

(ii)

distinct,

(iii)

uniform and

(iv)

stable.

(2)

[Other conditions] The grant of the breeder's right shall not be subject to any further or different conditions, provided that the variety is designated by a denomination in accordance with the provisions of Article 20, that the applicant complies with the formalities provided for by the law of the Contracting Party with whose authority the application has been filed and that he pays the required fees.

Article 6

Novelty

(1)

[Criteria] The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety

(i)

in the territory of the Contracting Party in which the application has been filed earlier than one year before that date and

(ii)

in a territory other than that of the Contracting Party in which the application has been filed earlier than four years or, in the case of trees or of vines, earlier than six years before the said date.

(2)

[Varieties of recent creation] Where a Contracting Party applies this Convention to a plant genus or species to which it did not previously apply this Convention or an earlier Act, it may consider a variety of recent creation existing at the date of such extension of protection to satisfy the condition of novelty defined in paragraph (1) even where the sale or disposal to others described in that paragraph took place earlier than the time limits defined in that paragraph.

(3)

["Territory" in certain cases] For the purposes of paragraph (1), all the Contracting Parties which are member States of one and the same intergovernmental organization may act jointly, where the regulations of that organization so require, to assimilate acts done on the territories of the States members of that organization to acts done on their own territories and, should they do so, shall notify the Secretary-General accordingly.

Article 7

Distinctness

The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application. In particular, the filing of an application for the granting of a breeder's right or for the entering of another variety in an official register of varieties, in any country, shall be deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of a breeder's right or to the entering of the said other variety in the official register of varieties, as the case may be.

Article 8

Uniformity

The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.

Article 9

Stability

The variety shall be deemed to be stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

CHAPTER IV

APPLICATION FOR THE GRANT OF THE BREEDER'S RIGHT

Article 10

Filing of Applications

(1)	[Place of first application] The breeder may choose the Contracting Party with whose authority he wishes to file his first application for a breeder's right.

(2)	[Time of subsequent applications] The breeder may apply to the authorities of other Contracting Parties for the grant of breeders' rights without waiting for the grant to him of a breeder's right by the authority of the Contracting Party with which the first application was filed.

(3)	[Independence of protection] No Contracting Party shall refuse to grant a breeder's right or limit its duration on the ground that protection for the same variety has not been applied for, has been refused or has expired in any other State or intergovernmental organization.

Article 11

Right of Priority

(1)

[The right; its period] Any breeder who has duly filed an application for the protection of a variety in one of the Contracting Parties (the "first application") shall, for the purpose of filing an application for the grant of a breeder's right for the same variety with the authority of any other Contracting Party (the "subsequent application"), enjoy a right of priority for a period of twelve months. This period shall be computed from the date of filing of the first application. The day of filing shall not be included in the latter period.

(2)

[Claiming the right] In order to benefit from the right of priority, the breeder shall, in the subsequent application, claim the priority of the first application. The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from the filing date of the subsequent application, a copy of the documents which constitute the first application, certified to be a true copy by the authority with which that application was filed, and samples or other evidence that the variety which is the subject matter of both applications is the same.

(3)

[Documents and material] The breeder shall be allowed a period of two years after the expiration of the period of priority or, where the first application is rejected or withdrawn, an appropriate time after such rejection or withdrawal, in which to furnish, to the authority of the Contracting Party with which he has filed the subsequent application, any necessary information, document or material required for the purpose of the examination under Article 12, as required by the laws of that Contracting Party.

(4)

[Events occurring during the period] Events occurring within the period provided for in paragraph (1), such as the filing of another application or the publication or use of the variety that is the subject of the first application, shall not constitute a ground for rejecting the subsequent application. Such events shall also not give rise to any third-party right.

Article 12

Examination of the Application

Any decision to grant a breeder's right shall require an examination for compliance with the conditions under Article 5 to Article 9. In the course of the examination, the authority may grow the variety or carry out other necessary tests, cause the growing of the variety or the carrying out of other necessary tests, or take into account the results of growing tests or other trials which have already been carried out. For the purposes of examination, the authority may require the breeder to furnish all the necessary information, documents or material.

Article 13

Provisional Protection

Each Contracting Party shall provide measures designed to safeguard the interests of the breeder during the period between the filing or the publication of the application for the grant of a breeder's right and the grant of that right. Such measures shall have the effect that the holder of a breeder's right shall at least be entitled to equitable remuneration from any person who, during the said period, has carried out acts which, once the right is granted, require the breeder's authorization as provided in Article 14. A Contracting Party may provide that the said measures shall only take effect in relation to persons whom the breeder has notified of the filing of the application.

CHAPTER V

THE RIGHTS OF THE BREEDER

Article 14

Scope of the Breeder's Right

(1)	[Acts in respect of the propagating material]

(a)	Subject to Article 15 and Article 16, the following acts in respect of the propagating material of the protected variety shall require the authorization of the breeder:

(i)

production or reproduction (multiplication),

(ii)

conditioning for the purpose of propagation,

(iii)

offering for sale,

(iv)

selling or other marketing,

(v)

exporting,

(vi)

importing,

(vii)

stocking for any of the purposes mentioned in (i) to (vi), above.

(b)	The breeder may make his authorization subject to conditions and limitations.

(2)

[Acts in respect of the harvested material] Subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material.

(3)

[Acts in respect of certain products] Each Contracting Party may provide that, subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of products made directly from harvested material of the protected variety falling within the provisions of paragraph (2) through the unauthorized use of the said harvested material shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said harvested material.

(4)	[Possible additional acts] Each Contracting Party may provide that, subject to Article 15 and Article 16, acts other than those referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) shall also require the authorization of the breeder.

(5)	[Essentially derived and certain other varieties]

(a)	The provisions of paragraph (1) to paragraph (4) shall also apply in relation to

(i)

varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety,

(ii)

varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and

(iii)

varieties whose production requires the repeated use of the protected variety.

(b)	For the purposes of subparagraph (a)(i), a variety shall be deemed to be essentially derived from another variety ("the initial variety") when

(i)

it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,

(ii)

it is clearly distinguishable from the initial variety and

(iii)

except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

(c)	Essentially derived varieties may be obtained for example by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering.

Article 15

Exceptions to the Breeder's Right

(1)	[Compulsory exceptions] The breeder's right shall not extend to

(i)

acts done privately and for non-commercial purposes,

(ii)

acts done for experimental purposes and

(iii)

acts done for the purpose of breeding other varieties, and, except where the provisions of Article 14(5) apply, acts referred to in Article 14(1) to Article 14(4) in respect of such other varieties.

(2)

[Optional exception] Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii).

Article 16

Exhaustion of the Breeder's Right

(1)

[Exhaustion of right] The breeder's right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of Article 14(5), which has been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned, or any material derived from the said material, unless such acts

(i)

involve further propagation of the variety in question or

(ii)

involve an export of material of the variety, which enables the propagation of the variety, into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes.

(2)	[Meaning of "material"] For the purposes of paragraph (1), "material" means, in relation to a variety,

(i)

propagating material of any kind,

(ii)

harvested material, including entire plants and parts of plants, and

(iii)

any product made directly from the harvested material.

(3)

Article 17

Restrictions on the Exercise of the Breeder's Right

(1)	[Public interest] Except where expressly provided in this Convention, no Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest.

(2)	[Equitable remuneration] When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration.

Article 18

Measures Regulating Commerce

The breeder's right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material. In any case, such measures shall not affect the application of the provisions of this Convention.

Article 19

Duration of the Breeder's Right

(1)	[Period of protection] The breeder's right shall be granted for a fixed period.

(2)	[Minimum period] The said period shall not be shorter than 20 years from the date of the grant of the breeder's right. For trees and vines, the said period shall not be shorter than 25 years from the said date.

CHAPTER VI

VARIETY DENOMINATION

Article 20

Variety Denomination

(1)	[Designation of varieties by denominations; use of the denomination]

(a)	The variety shall be designated by a denomination which will be its generic designation.

(b)	Each Contracting Party shall ensure that, subject to paragraph (4), no rights in the designation registered as the denomination of the variety shall hamper the free use of the denomination in connection with the variety, even after the expiration of the breeder's right.

(2)

[Characteristics of the denomination] The denomination must enable the variety to be identified. It may not consist solely of figures except where this is an established practice for designating varieties. It must not be liable to mislead or to cause confusion concerning the characteristics, value or identity of the variety or the identity of the breeder. In particular, it must be different from every denomination which designates, in the territory of any Contracting Party, an existing variety of the same plant species or of a closely related species.

(3)

[Registration of the denomination] The denomination of the variety shall be submitted by the breeder to the authority. If it is found that the denomination does not satisfy the requirements of paragraph (2), the authority shall refuse to register it and shall require the breeder to propose another denomination within a prescribed period. The denomination shall be registered by the authority at the same time as the breeder's right is granted.

(4)

[Prior rights of third persons] Prior rights of third persons shall not be affected. If, by reason of a prior right, the use of the denomination of a variety is forbidden to a person who, in accordance with the provisions of paragraph (7), is obliged to use it, the authority shall require the breeder to submit another denomination for the variety.

(5)

[Same denomination in all Contracting Parties] A variety must be submitted to all Contracting Parties under the same denomination. The authority of each Contracting Party shall register the denomination so submitted, unless it considers the denomination unsuitable within its territory. In the latter case, it shall require the breeder to submit another denomination.

(6)

[Information among the authorities of Contracting Parties] The authority of a Contracting Party shall ensure that the authorities of all the other Contracting Parties are informed of matters concerning variety denominations, in particular the submission, registration and cancellation of denominations. Any authority may address its observations, if any, on the registration of a denomination to the authority which communicated that denomination.

(7)

[Obligation to use the denomination] Any person who, within the territory of one of the Contracting Parties, offers for sale or markets propagating material of a variety protected within the said territory shall be obliged to use the denomination of that variety, even after the expiration of the breeder's right in that variety, except where, in accordance with the provisions of paragraph (4), prior rights prevent such use.

(8)

[Indications used in association with denominations] When a variety is offered for sale or marketed, it shall be permitted to associate a trademark, trade name or other similar indication with a registered variety denomination. If such an indication is so associated, the denomination must nevertheless be easily recognizable.

CHAPTER VII

NULLITY AND CANCELLATION OF THE BREEDER'S RIGHT

Article 21

Nullity of the Breeder's Right

(1)	[Reasons of nullity] Each Contracting Party shall declare a breeder's right granted by it null and void when it is established

(i)

that the conditions laid down in Article 6 or Article 7 were not complied with at the time of the grant of the breeder's right,

(ii)

that, where the grant of the breeder's right has been essentially based upon information and documents furnished by the breeder, the conditions laid down in Article 8 or Article 9 were not complied with at the time of the grant of the breeder's right, or

(iii)

that the breeder's right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.

(2)	[Exclusion of other reasons] No breeder's right shall be declared null and void for reasons other than those referred to in paragraph (1).

Article 22

Cancellation of the Breeder's Right

(1)	[Reasons for cancellation]

(a)	Each Contracting Party may cancel a breeder's right granted by it if it is established that the conditions laid down in Article 8 or Article 9 are no longer fulfilled.

(b)	Furthermore, each Contracting Party may cancel a breeder's right granted by it if, after being requested to do so and within a prescribed period,

(i)

the breeder does not provide the authority with the information, documents or material deemed necessary for verifying the maintenance of the variety,

(ii)

the breeder fails to pay such fees as may be payable to keep his right in force, or

(iii)

the breeder does not propose, where the denomination of the variety is cancelled after the grant of the right, another suitable denomination.

(2)	[Exclusion of other reasons] No breeder's right shall be cancelled for reasons other than those referred to in paragraph (1).

CHAPTER VIII

THE UNION

Article 23

Members

The Contracting Parties shall be members of the Union.

Article 24

Legal Status and Seat

(1)	[Legal personality] The Union has legal personality.

(2)	[Legal capacity] The Union enjoys on the territory of each Contracting Party, in conformity with the laws applicable in the said territory, such legal capacity as may be necessary for the fulfillment of the objectives of the Union and for the exercise of its functions.

(3)	[Seat] The seat of the Union and its permanent organs are at Geneva.

(4)	[Headquarters agreement] The Union has a headquarters agreement with the Swiss Confederation.

Article 25

Organs

The permanent organs of the Union are the Council and the Office of the Union.

Article 26

The Council

(1)	[Composition] The Council shall consist of the representatives of the members of the Union. Each member of the Union shall appoint one representative to the Council and one alternate. Representatives or alternates may be accompanied by assistants or advisers.

(2)	[Officers] The Council shall elect a President and a first Vice-President from among its members. It may elect other Vice-Presidents. The first Vice-President shall take the place of the President if the latter is unable to officiate. The President shall hold office for three years.

(3)

[Sessions] The Council shall meet upon convocation by its President. An ordinary session of the Council shall be held annually. In addition, the President may convene the Council at his discretion; he shall convene it, within a period of three months, if one-third of the members of the Union so request.

(4)	[Observers] States not members of the Union may be invited as observers to meetings of the Council. Other observers, as well as experts, may also be invited to such meetings.

(5)	[Tasks] The tasks of the Council shall be to:

(i)

study appropriate measures to safeguard the interests and to encourage the development of the Union;

(ii)

establish its rules of procedure;

(iii)

appoint the Secretary-General and, if it finds it necessary, a Vice Secretary-General and determine the terms of appointment of each;

(iv)

examine an annual report on the activities of the Union and lay down the programme for its future work;

(v)

give to the Secretary-General all necessary directions for the accomplishment of the tasks of the Union;

(vi)

establish the administrative and financial regulations of the Union;

(vii)

examine and approve the budget of the Union and fix the contribution of each member of the Union;

(viii)

examine and approve the accounts presented by the Secretary-General;

(ix)

fix the date and place of the conferences referred to in Article 38 and take the measures necessary for their preparation; and

(x)

in general, take all necessary decisions to ensure the efficient functioning of the Union.

(6)

[Votes]

(a)	Each member of the Union that is a State shall have one vote in the Council.

(b)

Any Contracting Party that is an intergovernmental organization may, in matters within its competence, exercise the rights to vote of its member States that are members of the Union. Such an intergovernmental organization shall not exercise the rights to vote of its member States if its member States exercise their right to vote, and vice versa.

(7)

[Majorities] Any decision of the Council shall require a simple majority of the votes cast, provided that any decision of the Council under paragraph (5)(ii), paragraph (5)(vi) and paragraph (5)(vii) and under Article 28(3), Article 29(5)(b) and Article 38(1) shall require three-fourths of the votes cast. Abstentions shall not be considered as votes.

Article 27

The Office of the Union

(1)	[Tasks and direction of the Office] The Office of the Union shall carry out all the duties and tasks entrusted to it by the Council. It shall be under the direction of the Secretary-General.

(2)

[Duties of the Secretary-General] The Secretary-General shall be responsible to the Council; he shall be responsible for carrying out the decisions of the Council. He shall submit the budget of the Union for the approval of the Council and shall be responsible for its implementation. He shall make reports to the Council on his administration and the activities and financial position of the Union.

(3)	[Staff] Subject to the provisions of Article 26(5)(iii), the conditions of appointment and employment of the staff necessary for the efficient performance of the tasks of the Office of the Union shall be fixed in the administrative and financial regulations.

Article 28

Languages

(1)	[Languages of the Office] The English, French, German and Spanish languages shall be used by the Office of the Union in carrying out its duties.

(2)	[Languages in certain meetings] Meetings of the Council and of revision conferences shall be held in the four languages.

(3)	[Further languages] The Council may decide that further languages shall be used.

Article 29

Finances

(1)	[Income] The expenses of the Union shall be met from

(i)

the annual contributions of the States members of the Union,

(ii)

payments received for services rendered,

(iii)

miscellaneous receipts.

(2)	[Contributions: units]

(a)

The share of each State member of the Union in the total amount of the annual contributions shall be determined by reference to the total expenditure to be met from the contributions of the States members of the Union and to the number of contribution units applicable to it under paragraph (3). The said share shall be computed according to paragraph (4).

(b)	The number of contribution units shall be expressed in whole numbers or fractions thereof, provided that no fraction shall be smaller than one-fifth.

(3)	[Contributions: share of each member]

(a)	The number of contribution units applicable to any member of the Union which is party to the Act of 1961/1972 or the Act of 1978 on the date on which it becomes bound by this Convention shall be the same as the number applicable to it immediately before the said date.