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

Bibliographic data

80E

Organization: UPOV

Short title: UPOV Convention (1991 Act)

Subject matter: PVV

Text Identifier: W-UP91

WDN: 4316V.ASC

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.