Does the UPOV System Foster Modern Innovation?

Written on 08/23/2018
Jean Donnenwirth

The challenges facing agriculture make the success of plant breeding innovations more critical than ever before. Investment in plant breeding will greatly depend on the incentives provided by society to invest in research and development to create new, improved varieties.

Intellectual property rights are the most effective catalyst to generate innovation. Hence, it’s critical to ensure that the current International Union for the Protection of New Varieties of Plants (UPOV) system evolves and stimulates investments in plant breeding.

First established in 1961, the UPOV Convention defined a set of well-adapted criteria for obtaining a plant variety protection (PVP) right (novelty, distinction, uniformity and stability), while conferring exclusive rights comprising production and sales. At that time, the scope of the plant breeder’s right granted gave a breeder the time necessary to recoup his research investments, while the breeder’s exemption permitted other breeders to benefit from the previous improvements to create new and better varieties.

Over nearly 30 years, the UPOV system was progressively enacted by the OECD member states. The debate about the UPOV system primarily focused on the question of distinction. What is the minimum distance required to declare that a candidate variety is distinct? More than 55 years later, the question remains open.

The end of the 80s brought about transgenesis. Breeders were concerned that because of the breeder’s exemption and the vagueness regarding minimum distances under UPOV 1961, those having access to this new technology could easily take advantage of decades of incremental variety improvement by inserting one or more transgenes into PVP-protected elite varieties and thereby claim sole ownership of the resulting varieties together with freedom to operate.

This led to the revision of UPOV in 1991, and the introduction of the concept of an essentially derived variety (EDV), which established the principle that the commercial exploitation of an EDV depends on the authorization of the breeder of the protected initial variety from which it essentially derives.

While the EDV concept seemed to be well-adapted to the new situation, it is limited in its effectiveness when it comes to enforcing the PVP rights against an alleged EDV.

The difficulty of meeting the burden of proof regarding an act of essential derivation, which lies with the PVP owner, has already been rendered more difficult in the past decade with the progress of marker-assisted selection and will gain even greater significance with the development of new plant breeding innovations.

The main issue fueling debates at UPOV and within the seed industry is the lack of clarity about the key definition for what constitutes the essential characteristics resulting from the genotype that an EDV must retain after the act of derivation.

Meanwhile other international conventions have been introduced, which regulate access to in situ and ex situ plant genetic resources. The Nagoya Protocol and the International Treaty on Plant Genetic Resources for Food and Agriculture have drastically changed the freedom of breeders to access and use such plant genetic resources. Those resources are no longer accessible and usable freely but require the prior informed consent from member states, which have sovereignty over them, and the perpetual sharing of the benefits resulting from any use.

A company’s ignorance of these complex and diverse rules can have real and serious consequences, including criminal charges in certain countries. It’s from these legal developments that a paradox emerges: A wild plant growing anywhere seems to benefit from stronger and longer legal protection than an innovative elite variety coming from significant financial investment!

Meanwhile the commercial lifecycle of varieties for many crops has been drastically reduced allowing less time for breeders to recoup their investments. With the plant breeding innovation technologies that have recently surfaced, the breeding cycles will accelerate even more. Couple that with the obsolescence of new varieties, and it is possible that, despite the EDV concept, a situation similar to the one that led to the revision of 1991 will occur.

It seems that, in light of these new technical and legal developments, the UPOV system deserves an in-depth review, including its conditions of grant, scope, exemptions, duration and enforcement mechanisms, to ensure that it will play its intended role for remainder of the 21st century.