Plant Variety Protection Data and Statistics.
https://www.upov.int/databases/en/
Background
The protection of plant varieties is covered by the Convention on the Protection of Plant Varieties of 1961 (UPOV Convention), which entered into force in 1968 and was revised in 1972, 1978 and 1991 and created the Union internationale pour la protection des obtentions végétales (UPOV) / International Union for the Protection of Plant Varieties (UPOV). The last Acts of 1978 or 1991 are those in force, as opted for by the UPOV members. As of 2020 the UPOV has 76 contracting parties. It is legally separate from the WIPO, and is not part of the UN System. The Council and the Office (or executive arm) of the Union are the permanent organs of the Union. Its headquarters are in Geneva. Pursuant to an agreement between WIPO and UPOV, the WIPO Director General is the Secretary General of UPOV. Regarding the legislative history, see Sigrid Sterckx and Julian Cockbain, Exclusions from Patentability: How Far Has the European Patent Office Eroded Boundaries? 17-65 (Cambridge: Cambridge University Press 2012) discussed infra in section VI(A).
In addition to the provisions on national treatment, conditions for the granting of PVP (plant variety protection) and rights granted, the convention addresses the so-called “breeder’s exemption”, i.e. the right for one breeder to utilize another breeder’s new plant variety as an initial source of variation for the purpose of creating other varieties, or for the marketing of such varieties. Such authorization is, however, required when the repeated use of the variety is necessary for the commercial production of another new variety. This exception is to be distinguished from two topical issues: the “farmer’s privilege” to re-use the seeds of a variety either protected by a plant variety protection or by a patent for invention, and “farmers’ rights”. Whilst the former is concerned in the UPOV Convention, the latter is concerned in the International Treaty on Plant and Genetic Resources for Food and Agriculture, which does not define but only describes “farmers’ rights” as customary rights of farmers to, inter alia, save, use, exchange and sell farm-saved seeds and propagating material, and be recognized, rewarded and supported for their contribution to the pool of genetic resources.
Most national and regional laws exclude plant varieties as a category of innovations from patent for invention protection as they do not correspond to the patentability criteria defined for technology. One of the main reasons for the creation of sui generis (tailored-made) protection, which dates back from the 19th century, is the non-applicability of three fundamental criteria for ascertaining the existence of a patentable invention (novelty, inventiveness and industrial application) to plant varieties, which by their very nature as plant products (cereals, vegetables, fruits, flowers, trees, etc.) require other criteria, namely: novelty, distinctness, uniformity and stability. The TRIPS Agreement provides for obligation on the part of WTO members to protect plant varieties “either by patents or by an effective sui generis system or by any combination thereof”. One seemingly prevalent opinion among members is that the sui generis system can be complied with via a system like the one under the UPOV Convention. The TRIPS Agreement does not specify whether or not the UPOV 1991 must be used. With a view to protecting genetic engineered plants and biotechnology, industrialized countries often insist on joining UPOV 1991 in preferential trade agreement as one of the typical TRIPS-plus obligations. With the advent of genetic engineering, proper patent protection has been extended to plant breeding, and the two systems, patents and plant variety protection, increasingly compete. It had been advanced that one of the reasons to reinforce disciplines of protection in UPOV 1991 was to pre-empt the decline of recourse to UPOV.
In Switzerland, UPOV is administrated by the Bureau de la protection des variétés/Office for Plant Variety Protection, Federal Office for Agriculture (FOAG) in Berne. It does not fall within the purview of the Swiss Intellectual Property Institute.
Summary
UPOV statistics indicate that there were some 140,000 titles in force in 2019, with 79 member States participating in the system. The statistics provide information about regional distribution of applications made and international titles of protection granted. The main users are the Netherlands and China followed by the US. Swiss breeders ranked 10th in 2019, with 403 applications filed. This amounts to some 2-3 percent of the top group. But Switzerland does not rank in the top group of 10 in terms of titles granted. Compared to the PCT, Madrid and Lisbon systems, UPOV may seem to be of lesser importance to users in Switzerland, as biotechnology and genetic engineering increasingly fulfils the criteria for patent protection.