Geneva, Switzerland
October 29, 2013
Source: Intellectual Property Watch
By Catherine Saez
The international organisation providing and promoting intellectual property protection for new plant varieties held the annual meeting of its governing body last week. New member requests were examined while civil society warned against a draft African legal framework on plant variety protection that they said could impact the dominant subsistence farming systems in some African states.
The International Union for the Protection of New Varieties of Plants (UPOV) held a number of meetings last week, from 21-25 October, leading to the meeting of its Council, which is the UPOV governing body. Meetings included UPOV’s Administrative and Legal Committee, and its Consultative committee, both preparatory committees to the Council (IPW, Biodiversity/Genetic Resources/Biotech, 22 October 2013).
In addition, during the week, a seminar was organised on “essentially derived” varieties of plants, showing the complexity of the definition of those varieties while civil society warned against rules that could endangers small farmers.
UPOV Seeks to Improve Communications
With the aim “of improving the level of understanding of the UPOV system,” a communication strategy was agreed upon by the Consultative Committee and is expected to include the “development of stakeholder-focused features on the UPOV website, with a focus on breeders, seed producers/plant propagators, farmers and policy-makers.”
“[A] first set of answers to frequently asked questions was agreed and will be published on the UPOV website,” according to the press release. These efforts come in the wake of past criticism about the openness and accessibility of UPOV’s activities.
Documents Adopted
Separately, a number of documents were adopted, including explanatory notes on the definition of breeder under the 1991 Act of the Convention, explanatory notes on acts in respect of harvested material under the 1991 Act of the Convention, and guidance on the use of biochemical and molecular makers in the examination of distinctness, uniformity and stability.
The adopted documents will be included in the UPOV Collection, which provides “a set of guidance and information materials concerning plant variety protection” under the UPOV Convention, according to the UPOV website.
All meeting documents can be found here: Administrative and Legal Committee, Council, and Administrative and Legal Committee Advisory Group.
The documents of the Consultative Committee are not publicly available, but have been published by the Association for Plant Breeding for the Benefit of Society (APBREBES), through freedom of information legislations.
APBREBES also produced a statement [pdf] during the UPOV Council, raising concerns about the draft legal framework on plant variety protection of the African Regional Intellectual Property Organization for which UPOV has been consulted.
Seminar on Essentially Derived Varieties of Plants
A seminar on essentially derived varieties (EDVs) of plants, which refer to plants derived from an initial protected variety, explored the technical and legal aspects. Possible impacts on breeding and agriculture were presented by a number of different stakeholders including breeders’ association representatives, lawyers and civil society.
The concept of essentially derived varieties was introduced into the 1991 version of the UPOV Convention. According to Joël Guiard, chair of UPOV Technical Committee, EDVs are one of the most important amendments of the 1991 Convention. It was introduced to provide a stronger right to the breeders, he said.
In particular, it was aimed at providing solutions to several issues among which is the development of new technologies. Transfer of genes is becoming available and allows the creation of a new variety by transferring a single new gene into an already improved variety, he explained.
New tools are also available to distinguish between plant varieties, in particular to identify differences that are not discernible to the eyes. The introduction of the EDVs in the 1991 Convention was also meant to address cases of plagiarism observed at this time. Additional breeders would make “cosmetic” modifications to a variety on a characteristic that was important to the differentiation of plants but not necessarily to the quality of the variety, and so led to the piracy of the initial variety (with no benefits for the original breeder), he said.
The definition provided in the 1991 UPOV Convention, Guiard said, is a generic one and applies to all varieties. The diplomatic conference establishing the 1991 version of the UPOV Convention, required that UPOV develops guidelines to assess EDVs, he said, which are still in progress.
The work on these guidelines, according to the diplomatic conference decision, started in 1991, said Yolanda Huerta, UPOV senior legal officer, speaking on behalf of Raimundo Lavignolle, plant variety register director at the National Seed Institute of Argentina, who was unable to attend the seminar.
Guidelines were drafted and discussed in meetings in 1991, 1992 and 1993, she said. It was decided at that time that further work was premature. An explanatory note was prepared in 2009 but work on the guidelines is still ongoing, she said.
Hedwich Teunissen, molecular biologist for the Netherlands Inspection Service for Horticulture (Naktuinbouw), presented a technical perspective on EDVs and the manner in which EDVs can be assessed.
She said that the definition as stated in article 14(5)(b) of 1991 UPOV Convention and defining EDVs includes a mention of varieties “retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,” which implies a direct correlation between phenotypes (appearance of a plant) and genotypes (the genetic material of a plant).
However, this correlation is not always present. In some cases, small phenotypic differences can hide a significant genetic distance, and in an opposite way, significant phenotypic differences in some plants might be associated with high genetic conformity.
In most cases, a strong genetic conformity between an initial variety and an EDV from this initial variety is expected and thus generic conformity can be used as a tool to predict an essential derivation.
For Edgar Krieger, secretary general of the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants, breeders of vegetatively reproduced ornamental and fruit varieties need clarity about what is an EDV. The concept of EDV, he said, needs to be sufficiently broad and cover mutants and genetically modified organisms.
The International Association of Horticultural Producers (AIPH) has “fundamental problems with EDV from the juridical point of view,” said Mia Buma, secretary of the AIPH Committee for Novelty Protection. The AIPH is not in favour of rules that make the entrance to the market for new varieties more difficult, she said, adding that the goal of plant variety rights was not to provide a monopoly position to existing breeders. Innovation and product renewal is a basis for progress in the ornamental sector, she said.
Civil Society Warns of Impact on Small Farmers
Normita Gumasing Ignacio, executive director of South East Asia Regional Initiatives of Community Empowerment (SEARICE), said the dynamic informal seed system is threatened by the concept of EDV. It limits the potential of farmers to adapt to changing environments, and threatens food security, she said.
“The cost to society of limiting farmers’ ability to create so-called EDV would be devastating and would far outweigh the benefits,” she said. Preventing farmers to “freely generate EDVs from a protected variety is inequitable and unwise,” she added. Ignacio also pointed out that “all of formal breeders’ breeding materials are derived to some extent from a farmers’ variety.”
“These breeding materials are usually obtained from farmers with little or no restriction, not even a restriction against essentially deriving a variety from these,” she said. She remarked that “current seed policies imported from developed countries do not fit [the dynamic informal seed system].” She underlined the need to develop a new approach to spur innovation and at the same time protect farmers’ seeds from misappropriation.
Ignacio also said that transaction costs required for a small farmer-breeder to obtain a licence from the variety owner would “put it out of the small farmers’ reach.”
All presentations made during the seminar are available here.
New Members, New Committee Leadership
According to a UPOV press release [pdf], UPOV elected new officials for two of its committees.
For the Administrative and Legal Committee, which deals with administrative, legal matters but also financial and policy matters: Martin Ekyad (president of the [European] Community Plant Variety Office) was elected chair, and James Onsando (managing director of the Kenya Plant Health Inspectorate Service) was elected vice-chair.
For the Technical Committee, tasked with technical matters, such as technical guidelines and oversees UPOV’s technical working parties which are specialised in specific crops: Alejandro Barrientos-Priego (investigator and professor at Universidad Autónoma Chapingo, Mexico) is the new chair, and Kees van Ettekoven (president of the International Association for Cultivated Plant Taxonomy) is now vice-chair.
Potential Newcomers Working on Approval
The Council examined the case of two potential newcomers: Bosnia and Herzegovina, and Ghana.
According to the UPOV release, the Council “decided that the Law for the Protection of New Varieties of Plants of Bosnia and Herzegovina was in conformity with the provisions of the 1991 Act of the UPOV Convention. Bosnia and Herzegovina is now in a position to deposit its instrument of accession to the 1991 Act of the UPOV Convention,” meaning it can now join.
The Council also examined the Plant Breeders’ Bill of Ghana, which was presented to the Ghanaian Parliament, and decided that changes made during the first reading of the bill by the Parliament in June 2013 “did not affect the substantive provisions of the 1991 Act of the UPOV Convention.” Once the bill is adopted and the law in force, Ghana will be able to accede to the 1991 Act of the UPOV Convention, the release said.
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