[Senate Treaty Document 104-17]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Treaty Doc.
Session
104-17
_______________________________________________________________________
CONVENTION FOR THE PROTECTION OF PLANTS
__________
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
THE 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, AND SIGNED BY THE UNITED
STATES ON OCTOBER 25, 1991.
September 5, 1995.--Treaty was read the first time and, together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate.
LETTER OF TRANSMITTAL
----------
The White House, September 5, 1995.
To the Senate of the United States:
I transmit herewith for Senate advice and consent to
ratification the 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, and signed by the United States on October 25, 1991
(hereinafter ``the 1991 Act of the UPOV Convention''). I
transmit for the information of the Senate, the report of the
Department of State with respect to the Convention.
Ratification of the Convention is in the best interests of
the United States. It demonstrates a domestic commitment to
effective protection for intellectual property in the important
field of plant breeding. It is also consistent with United
States foreign policy of encouraging other countries to provide
adequate and effective intellectual property protection,
including that for plant varieties.
I recommend, therefore, that the Senate give early and
favorable consideration to the 1991 Act of the UPOV Convention
and give its advice and consent to ratification subject to a
reservation under Article 35(2), which allows parties to the
existing Convention (the 1978 Act) to retain their present
patent systems for certain varieties of plants.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, May 10, 1995.
The President,
The White House.
I have the honor to submit to you the 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, and signed by the
United States on October 25, 1991 (hereinafter ``the 1991 Act
of the UPOV Convention''). I recommend that the 1991 Act of the
UPOV Convention be transmitted to the Senate for its advice and
consent to ratification, subject to a reservation under Article
35(2) of the 1991 Act, which allows states party to the 1978
Act to retain their present patent systems for certain
varieties of plants.
The United States is a party to the 1978 Act of the
International Convention for the Protection of New Varieties of
Plants (33 UST 2703; TIAS 10199), which was concluded on
October 23, 1978, and entered into force on November 8, 1981.
That Act was the second revision of the original Act, which was
done on December 2, 1961 and amended on November 10, 1972, and
which established the International Union for the Protection of
New Varieties of Plants.
Member States of the Convention constitute the
International Union for the Protection of New Varieties of
Plants (the UPOV Union), whose objective is to promote the
protection of the rights of plant breeders in new plant
varieties. At present, the UPOV Union is composed of 27 member
States. Apart from two States (Belgium and Spain) that have
adhered only to the 1961 Act, as revised in 1972, all other
member States are presently bound by the 1978 Act of the UPOV
Convention. The 1991 Act is not yet in force.
Several considerations prompted the member States to revise
the Convention at a Diplomatic Conference held in Geneva,
Switzerland in March of 1991. Those considerations were: 1)
recognition that the protection offered to breeders under
previous Acts of the Convention was not adequate; 2) the need
for the Convention to reflect technological changes in the
breeding of new plant varieties; and 3) the need to clarify
certain provisions of the 1978 Act.
Ten member States of UPOV signed the 1991 Act at the
conclusion of the Conference. The 1991 Act remained open for
signature by UPOV member States until March 31, 1991, by which
time 16 States, including the United States, had signed the
Convention.
Article 37 of the 1991 Act provides that it will enter into
force one month after five States have deposited their
instruments of adherence, provided that at least three of them
are present member States of UPOV. After entry into force of
the 1991 Act, the 1978 Act of the Convention will be closed to
further accessions, except that developing countries may accede
to the 1978 Act until December 31, 1995. To date, no State has
deposited its instrument of adherence to the 1991 Act, although
many UPOV member States are actively involved in revising their
plant variety protection laws to bring them into conformance
with the 1991 Act, thus permitting their adherence to that Act.
In the United States, implementing legislation was enacted as
Public Law 103-349, on October 6, 1994.
The main aim of the Convention is to promote the protection
of the rights of the breeder in new plant varieties. In that
regard, the Convention not only requires member States to
provide protection for new varieties of plants, but also
contains explicit and detailed rules on the conditions and
arrangements for granting protection. Further, it prescribes
the scope of protection, including possible restrictions and
exceptions thereto, establishes, with some limitations, the
principle of national treatment for plant breeders from other
member States, and provides for a right of priority.
The Convention, as revised by the 1991 Act, would afford
additional protection to plant breeders, as follows:
First, the 1991 Act requires Contracting Parties, after
certain transitional periods, to protect varieties of all
genera and species of the plant kingdom.
Second, the 1991 Act redefines a breeder's right to cover,
among other things, the production of a variety's propagating
material by others for any purpose. The 1991 Act also expressly
permits member States to exclude from the reach of the
breeder's right, the practice of farmers to save seed.
Third, the 1991 Act extends breeders' rights to include
harvested material of the protected variety.
Fourth, the 1991 Act puts an end to the common practice,
permitted by the present Convention, of using protected
varieties to derive and freely commercialize other varieties
that, although differing to some degree, maintain the essential
characteristics of the initial variety.
Finally, the 1991 Act is silent regarding the title of
protection under which a breeder's right may be granted. This
would afford member States the freedom to provide protection
for plant varieties through patents and sui generis breeders'
rights, thus affording them greater flexibility in determining
how to protect new plant varieties most effectively.
These and other features of the 1991 Act would enhance the
protection afforded to breeders of new plant varieties not only
in the United States, but also in those future member States
where patent protection for plant varieties is not now
obtainable, and in present member States where protection of
plant breeders' rights is either weak or unavailable for a
significant number of plant species and genera. An analysis is
enclosed, explaining the various Articles of the 1991 Act of
the UPOV Convention, including their differences from those of
the 1978 Act.
Prompt ratification of the 1991 Act of the UPOV Convention
will demonstrate the United States commitment to effective
protection for intellectual property in the area of new plant
variety development. Ratification of this Convention is
consistent, therefore, with United States foreign policy of
encouraging other countries to provide adequate and effective
protection for intellectual property generally, and for new
plant varieties in particular.
I recommend, therefore, that the 1991 Act of the UPOV
Convention be transmitted to the Senate as soon as possible for
its advice and consent to ratification, subject to a
reservation under Article 35(2), which allows parties to the
1978 Act to retain their present plant patent systems for
certain varieties of plants.
Respectfully submitted,
Peter Tarnoff.
Enclosure: As stated.
Analysis of the 1991 Act of the International Convention for the
Protection of New Varieties of Plants
chapter I: Definitions
This chapter has only one article, containing definitions
that establish a number of key legal concepts.
Article 1 has no counterpart in the 1978 Act of the
Convention. Of the eleven definitions contained in Article 1,
the most important are those explaining the meaning of who may
be considered a ``breeder'', and what is a ``variety.'' For
purposes of the Convention, a breeder may be any one of several
persons. It may be the person who has bred the variety, or
discovered and developed it, unless the variety was established
by that person while in the employ of another, or under
commission. In that case, it is left to national law to
determine the circumstances under which an employer will be
entitled to be recognized as the breeder. Further, the
successor in title of the actual breeder, or his employer, is
also recognized, for purposes of the Convention, as the breeder
of the variety.
A definition of great significance in the 1991 Act is that
of ``variety.'' In framing that definition, a clear distinction
was established between what constitutes a variety as such and
a variety that meets the technical criteria for protection
under the Convention. In that respect, a variety, under the
definition, is a plant grouping that is distinct from other
varieties whose component individuals display certain common
characteristics and that retains its identity from generation
to generation, regardless of whether the precise conditions for
obtaining a breeder's right are met. This narrow difference
between the definition of ``variety'' and what is considered to
be a ``protectable variety'' ensures that the former is taken
into account when assessing distinctness of a variety for which
protection is sought. Other definitions in Article 1 explain
the meaning of a breeder's right, and terms such as
``Contracting Party,'' ``territory,'' ``authority,'' ``Union,''
and the various Acts of the Convention.
chapter ii: general obligations of the contracting parties
This Chapter contains Articles 2, 3 and 4 and deals with
the Contracting Parties' basic obligations under the
Convention, including treatment of each others' nationals and
to what genera and species of the plant kingdom the protection
is to be extended.
Article 2 simply states that each Contracting Party ``shall
grant and protect breeders' rights''. In that respect, the 1991
Act is silent on the form of breeders' rights to be provided
and no longer contains the provision of Article 2 of the 1978
Act prohibiting a member State from providing protection by way
of patents, as well as in the form of sui generis breeders'
rights, for the same botanical genus or species. This
improvement gives Contracting Parties the freedom to provide
either, or both, types of protection for plant varieties.
Article 3 corresponds to Article 4 of the 1978 Act and
establishes the parameters of protection within the plant
kingdom that member States are required to provide. Earlier
Acts of the UPOV Convention recognized, but did not require,
that the system be applied to all botanical genera and species.
This general obligation led most member States to establish
plant variety protection only for crop genera that they
considered to be of economic importance to them. By contrast,
Article 3 of the 1991 Act requires that existing member States
protect all plant genera and species five years after adhering
to the 1991 Act and permits newly adhering States ten years to
achieve this result. Thus, it is intended that over time a
worldwide UPOV system of plant protection will emerge that
requires all member States to protect the whole of the plant
kingdom.
This change has important consequences, for example, in
relation to varieties of certain tropical plant species that
are not presently protected in temperate member States but
whose harvested materials are imported from other countries.
Thus, for example, if Iceland joined the 1991 Act of the UPOV
Convention, a U.S. breeder of a particular new variety of
oranges could eventually obtain protection there and could take
action against unauthorized imports of that orange variety into
Iceland from a country in which the U.S. breeder could not or
did not obtain plant variety protection.
Article 4 addresses the treatment that must be afforded by
a Contracting Party to nationals and residents from another
Contracting Party. In that respect, the 1991 Act departs from
the 1978 Act, which permits a UPOV member State to discriminate
against foreign breeders by limiting their rights of protection
in the member State to those afforded in their own country.
Under the 1991 Act, a Contracting Party must treat nationals
and residents of another Contracting Party no less favorably,
for purposes of granting and protecting breeders' rights, than
its laws accord its own nations.
chapter iii: conditions for the grant of the breeder's right
This Chapter contains Articles 5 to 9, and details the
criteria that must be met by a plant variety to be eligible to
be the subject of a breeder's right.
Article 5 states that a breeder's right shall be granted
when a plant variety meets the criteria of novelty,
distinctness, uniformity and stability. In that regard, Article
5 presents the conditions for protectability in a clearer
fashion than the wording of comparable Article 6 of the 1978
Act of the Convention. The Article also provides that a
Contracting Party may not subject the grant of a breeder's
right, as defined by the Convention, to any further or
different conditions, other than the requirement that the plant
variety be designated by a denomination.
Article 6 defines that novelty under this Convention refers
to the prior commercialization of the variety, rather than
novelty in the sense of patent law. In that respect, to lose
the recognition of novelty, a breeder must sell or dispose of
propagating or harvested material of the variety for the
purposes of exploiting the variety for more than one year in
the territory of the Contracting Party in which the application
for protection has been filed, or for more than four years if
the application was filed in another Contracting Party. The
latter time period is extended to six years in the case of
trees and vines.
The mandatory one-year grace period provided by Article 6
of the 1991 Act was only optional under Article 6 of the 1978
Act. The periods of foreign commercialization permitted without
loss of novelty have remained the same in the 1978 and 1991
Acts of the Convention. Further, Article 6(3) of the 1991 Act
permits Contracting Parties that are members of the same
intergovernmental organization (for example, the European
Communities), to assimilate acts done on the territory of one
member State to acts done on the territories of all member
States of that organization. This option appears for the first
time in the 1991 Act, as previous Acts of the convention did
not permit adherence by intergovernmental organizations.
Article 7 deals with the requirement of a variety's
distinctness and simply requires that a variety be clearly
distinguishable from any other variety whose existence is a
matter of common knowledge at the time the application for the
plant breeder's right was filed. Thus, the requirement of the
1978 Act, that distinction lie in the presence of ``one or more
important characteristics'' has been dropped due to the
ambiguity of that requirement as to whether ``importance'' was
equivalent to economic merit. In addition to this, Article 7
provides a non-exhaustive list of examples that would be
considered ``common knowledge.''
Article 8 and 9 address the criteria of a variety's
uniformity and stability. Although reworded from the
corresponding provisions in paragraph (c) and paragraph (d) of
Article 6 of the 1978 Act, no change in substance was intended.
chapter iv: application for the grant of the breeder's right
This Chapter contain Articles 10 to 13, and provides
details regarding an application's filing, examination and
effect.
Article 10 decrees that an adherent to the Convention may
not restrict the choice of the breeder in which particular
Contracting Party to file the first application for a breeder's
right. This provision, as well as the ones relating to the
independence of applications in different Contracting Parties,
are substantively unchanged from the requirements in article 11
of the 1978 Act.
Article 11 regulates the right of priority that may be
claimed in an application filed in one Contracting Party on the
basis of an earlier application filed in another Contracting
Party. The provisions of Article 11 differ from those of
Article 12 of the 1978 Act, in that the 1991 Act is more
specific in permitting the claim of priority only to be made in
an application for a breeder's right, although the basis for
such claim may be an application for the protection of a
variety, including a patent application.
The 1991 Act also permits authorities with whom the
subsequent application was filed, to require the submission of
samples or other evidence proving that the variety claimed by
the earlier and the subsequent applications is the same. This
requirement is in addition to that contained in article 12(2)
of the 1978 Act, requiring the furnishing of certified copies
of the earlier application to substantiate the claim of
priority.
Article 12 deals with the examination of the application
for a breeder's right and corresponds substantially to
provisions in Article 7 of the 1978 Act. It does, however,
emphasize the options that are open to an examining authority,
including that of accepting test results already established by
others, which implicitly includes the breeder.
Article 13 obligates Contracting Parties to provide
provisional protection for plant varieties during the period
between the filing or publication of an application and the
grant of the breeder's right. Although provisional protection
is also provided in Article 7(3) of the 1978 Act, it is only
optional in nature there. The 1991 Act, however, permits
Contracting Parties to provide provisional protection only in
instances where alleged infringers were notified by the breeder
that an application on the variety in question has been filed.
chapter v: the rights of the breeder
This Chapter contains Articles 14 to 19, dealing with the
substantive rights that a breeder derives from a grant of
protection and the instances in which a breeder's right is
either restricted or exhausted altogether. In this respect, the
1991 Act materially enhances the rights of a breeder when
compared to those provided by the 1978 Act of the Convention.
Article 14 enumerates in paragraph (1) seven specific acts
that, in respect of the propagating material of the protected
variety, require authorization from the breeder. They are: (1)
production or reproduction, (2) conditioning for the purpose of
propagation, (3) offering for sale, (4) selling or other
marketing, (5) exporting, (6) importing, and (7) stocking for
any of the previously mentioned acts. The 1978 Act, in Article
5, only provides protection against the unauthorized production
of a variety's propagating material for purposes of commercial
marketing, as well as its being offered for sale or being
marketed without authorization by the breeder.
In addition, paragraphs (2) and (3) of Article 14 extend
protection also to a variety's harvested material and to
products made directly from the harvested material. However,
harvested material is covered only if the breeder did not have
a reasonable opportunity to exercise his rights of exclusion in
relation to the propagating material of the protected variety,
and products are only encompassed if the breeder could not
exert his rights in the harvested material. Further, the
provisions of Article 14(3), relating to the exercise of a
breeder's right with respect to products made from the
harvested material of the protected variety, are not mandatory
and may be instituted by a Contracting Party on an optional
basis. A similar provision contained in Article 5(4) of the
1978 Act permits member States to extend protection to the
marketed product of a protected variety on a reciprocal basis.
Another optional addition to the breeder's right, similar
to Article 5(4) of the 1978 Act, is provided in Article 14(4),
which permits Contracting Parties to provide that acts, in
addition to those referred to in Article 14(1), shall require
the breeder's authorization. This paragraph introduces a
certain amount of flexibility by permitting the expansion of
protection beyond the list of acts enumerated in Article 14(1)
without, however, the option of requiring reciprocity.
Article 14(5) clarifies that the scope of protection of the
breeder's right extends also to varieties (1) that are not
clearly distinguishable from the patented variety, (2) to
varieties whose production requires the repeated use of the
protected variety, and, most importantly, (3) to varieties that
were essentially derived from the protected variety.
Forbidding unauthorized, repeated use of a protected
variety to achieve another variety is already part of the 1978
Act. The other two provisions, however, are new features of the
1991 Act. Although it may have been taken for granted that
varieties not clearly distinguishable from the protected
variety should be folded into the breeder's right, member
States of UPOV tended to differ in their application of that
concept and, hence, the clarification in the 1991 Act is
useful.
Extending protection to cover essentially derived varieties
covers rival breeding practices in which a breeder typically
induces minor changes in a protected variety resulting in
another variety that, while distinct, retains the essential
characteristics of the initial variety. Although functionally
equivalent, this variety was heretofore recognized as
independent and no reward was due the breeder of the initial
variety whose efforts resulted in all the beneficial
characteristics of the essentially derived variety. By
including essentially derived varieties within the metes and
bounds of the breeder's right concerning the initial variety,
the 1991 Act considerably enhances this right by controlling
``cosmetic breeding'' that borders on piracy.
Article 15 details exceptions to the breeder's right by
adding acts done privately and for non-commercial purposes, as
well as those done for the purpose of experimentation, to the
exception already contained in Article 5(3) of the 1978 Act,
namely that the breeder's right does not reach acts done for
the purpose of breeding other varieties. Article 15 narrows,
however, the breeding exception contained in the 1978 Act by
eliminating the provision that varieties obtained from other
varieties may freely be marketed without the authorization of
the breeder of the initial variety. In that sense, the
exceptions in Article 15(1) to the breeder's right were adapted
to balance the extension of the breeder's right by Article
14(5), discussed above.
Article 15 also provides for another exception to the
breeder's right, albeit in optional form. Contracting Parties
may restrict the breeder's right to permit farmers to save seed
obtained from the use of a protected variety on their holdings
for further propagation purposes on their own holdings. It does
not, however, permit farmers to sell or market such saved seed
for purposes of propagation. The ``saved seed'' exemption is an
explicit expression of the implicit creation of this exemption
by the wording of Article 5(1) of the 1978 Act, which provides
that the breeder's authorization is only required for the
production of propagating material ``for purposes of commercial
marketing.'' Thus, if saved propagating material is not sold as
such but is only replanted, that act falls outside the scope of
protection offered by the 1978 Act. By explicitly stating this
exception to the breeder's right, the 1991 Act clarifies this
principle, while also narrowing the exception, given its
optional nature.
Article 16 specifies under what circumstances a breeder's
right becomes exhausted. Basically, an authorized vendor of
material of the protected variety may not control by means of
the breeder's right what the buyer does with that bought
material, or with any crop or harvest derived from such
material. However, certain actions by a buyer that would be
inconsistent with the purpose for which the plant variety
material was sold in the first place, are not included in the
exhaustion of rights and would represent an infringement. These
involve acts of further propagation of the variety or the
export of propagating material of the variety to a country that
does not protect plant varieties of the genus or species to
which it belongs. It is permitted, however, to export plant
variety material to such a country for final consumption
purposes. The provisions of Article 16 are not reflected in any
earlier Acts of the UPOV Convention.
Article 17 provides a further optional restriction by
Contracting Parties on the breeder's right. In accordance with
this Article, a Contracting Party may, in addition to other
restrictions provided for in the Convention, limit a breeder's
exclusionary rights, for reasons of public interest. However,
where such restriction assumes the form of a compulsory license
in favor of a third party, the Contracting Party is obliged to
ensure that the breeder receives equitable remuneration. The
concept expressed by Article 17 is already contained in Article
9 of the 1978 Act.
Article 18 provides that a breeder's right is independent
of any measures taken by a Contracting Party to regulate the
production, certification and marketing of material of a
variety. This concept is already expressed in Article 14 of the
1978 Act.
Article 19 revises the minimum periods of protection for
varieties provided for under Article 8 of the 1978 Act (18
years for trees and vines, and 15 years for all other species)
to periods of 25 years for trees and vines, and 20 years for
all other species.
chapter vi: variety denomination
This chapter, consisting only of Article 20, is similar to
Article 13 of the 1978 Act. It provides that a variety must be
designated by a denomination that will be its generic name.
Article 20 also provides certain guidelines for the submission
of variety denominations to examining authorities and for their
use and effect.
chapter vii: nullity and cancellation of the breeder's right
This chapter consists of two articles and addresses the
specific and only grounds on which a breeder's right may be
revoked or canceled.
Article 21 provides for three situations where a breeder's
right must be declared null and void ab initio. These are where
1) the protected variety is shown not to have been novel or
distinct at the date of grant, 2) the protected variety was
granted a breeder's right on the basis of incorrect information
by the breeder with respect to uniformity or stability, or 3)
the breeder's right was granted to a person not entitled to it.
The obligation to revoke a breeder's right on the basis of lack
of novelty or distinctness was already established in Article
10 of the 1978 Act.
Article 22 permits the cancellation of a breeder's right if
a variety proves to be no longer uniform or stable. A
Contracting Party may also cancel a breeder's right on the
basis of a breeder's (1) refusal to submit information
necessary to verify the maintenance of the variety, (2) failure
to pay fees to keep the breeders's right in force, or (3)
failure to comply with certain requirements concerning the
furnishing of a suitable variety denomination. The option to
cancel a breeder's right on the basis of a refusal to submit
information regarding the variety's maintenance or failure to
pay appropriate fees was also already provided for in Article
10(3) of the 1978 Act. However, the mandatory cancellation of
the breeder's right under Article 10(2) of the 1978 Act, on the
basis of a breeder's inability to provide propagating material
capable to produce the variety with its original
characteristics, was not maintained in the 1991 Act of the
Convention.
Chapter VIII: The Union
This Chapter comprises Articles 23 to 29, defining the
status of Contracting Parties, the legal status and seat of the
International Union for the Protection of New Varieties of
Plants, the Union's organs and their tasks, and the Union's
finances, as well as its official languages. For the most part,
these provisions are substantively the same as those contained
in the 1978 Act of the Convention. There are, however, some
important changes.
Article 23 states that Contracting Parties shall be members
of the Union, and essentially repeats the provision of Article
1(2) of the 1978 Act.
Article 24 defines the status of the Union, repeating the
provisions of Articles 1(3) and 24 of the 1978 Act.
Article 25 restates Article 15 of the 1978 Act, concerning
the Union's organs, namely the Council and the Office of the
Union.
Article 26 details the composition and functions of the
Council, by consolidating provisions in that respect contained
in Articles 16 to 22 of the 1978 Act of the Convention. Two
additional tasks for the Council have been added, namely the
establishment of its rules of procedure and the establishment
of the Union's administrative and financial regulations.
A further change was made in the voting procedure of
members of the Union in view of the change in Article 34,
permitting intergovernmental organizations to become parties to
the 1991 Act of the Convention. In that regard, Article 26(6)
provides that each member State of the Union has one vote in
the Council and that any Contracting Party that is an
intergovernmental organization may, in matters within its
competence, cast the votes of all its member States, unless
they exercise their own rights to vote. As a consequence, an
intergovernmental organization may cast only the votes of its
member States if no member State casts a vote. This arrangement
preserves the integrity of the voting procedure and avoids the
grant of a separate vote to an intergovernmental organization
in addition to the votes of its member States on whose
territory the intergovernmental organization operates.
Article 27 states the tasks of the Office of the Union,
provides for its staffing, and details the duties of the
Secretary-General of the Union, virtually in identical manner
as contained in Article 23 of the 1978 Act.
Article 28 adds Spanish as an official language of the
Union, in addition to English, French, and German, already
provided for by Article 28 of the 1978 Act.
Article 29 details the financial arrangements of the Union,
which are substantially the same as those provided in Articles
25 and 26 of the 1978 Act, except for two instances. Article 29
reduces the number of years from two to one in which a member
State may be in arrears in the payment of its assessed
contributions, before losing its right to vote in the Council.
Further, in view of the fact that an intergovernmental
organization as a Contracting Party has no vote in its own
right, it is not obliged to pay contributions, although it is
not discouraged from doing so.
Chapter IX: Implementation of the Convention
This Chapter contains Articles 30 to 32, and addresses the
means by which each Contracting Party is obliged to implement
the Convention, as well as how member States bound by different
Acts of the Convention relate to each other in the application
of such Acts.
Article 30 addresses the implementation of the Convention
and is substantively the same as Article 30 of the 1978 Act,
except for the deletion of a reference to the possibility of
concluding cooperative examining contracts between member
States, which was deemed to be superfluous.
Article 31 regulates the relations between Contracting
Parties and States bound by earlier Acts of the UPOV Convention
and is substantively the same as Article 34 of the 1978 Act,
which regulates such relations between adherents to the Acts of
1961 and 1978, respectively.
Article 32 repeats the possibility of special agreements to
be concluded among members of the Union regarding the
protection of plant varieties, as already contained in Article
29 of the 1978 Act of the Convention.
chapter x: final provisions
This Chapter contains Article 33 to 42, and addresses
miscellaneous aspect of Convention procedures.
Article 33 provides for signature of the Convention until
March 31, 1992, by States that are already members of the
Union. The United States signed the Convention on October 25,
1991.
Article 34 details the means of becoming party to the
Convention and permits the accession of intergovernmental
organizations, under certain circumstances, in addition to
States.
Article 35 provides for the possibility of a reservation to
the 1991 Act of the Convention only by a State that is a party
to the Act of 1978 and that provides protection for asexually
reproduced varieties by means other than a breeder's right.
Upon notifying the Secretary-General at the time of depositing
its instrument of ratification, such State is permitted to
continue protection of asexually reproduced varieties without
applying the obligations and requirements of the 1991 Act to
these varieties. This reservation is specifically intended to
permit the United States to continue its present system of
providing protection for asexually reproduced varieties by way
of plant patents under sections 161 et seq. of title 35, United
States Code, rather than plant breeders' certificates under
section 2321 et seq. of title 7, United States Code. A similar,
but less comprehensive reservation is already contained in
Article 37 of the 1978 Act of the Convention.
Article 36 provides for the communication among Contracting
Parties regarding each others' legislation concerning breeders'
rights, the genera and species initially protected upon
becoming party to the 1991 Act and the dissemination of such
information. These provisions are substantively the same as
those contained in Article 35 of the 1978 Act.
Article 37 details the circumstances under which the 1991
Act of the Convention comes into force. It requires the deposit
of the appropriate instruments of five States, of which at
least three must already be members of the Union. One month
after such deposit, the 1991 Act of the Convention comes into
force and any State or intergovernmental organization that
subsequently adheres to this Convention will be bound one month
after depositing its instrument. Article 37 also provides that
accession to the 1978 Act of the Convention will no longer be
possible after entry into force of the 1991 Act, except for
developing countries that may accede to the 1978 Act until
December 31, 1995, even if the 1991 Act were to come into force
before then.
Article 38 provides the procedures for revising the
Convention and is identical with Article 27 of the 1978 Act,
except for the majority required to adopt a revision. The 1978
Act requires a majority of five-sixths of the member States to
revise the Convention, while the present Article reduces this
majority to three quarters.
Article 39 repeats the procedures regarding the
denunciation of the Convention, already contained in Article 41
of the 1978 Act, and adds the provision that denunciation of
the 1991 Act of the Convention has the effect of also
denouncing any earlier Acts by which the Contracting Party is
bound.
Article 40, like Article 39 of the 1978 Act, provides for
the preservation of existing breeders' rights if a party
adheres to the Convention. However, unlike the 1978 Act, which
provides that existing rights not be affected, the 1991 Act
provides that they not be limited, thus permitting an extension
of existing rights, if so desired by a Contracting Party.
Articles 41 and 42 provide information on original and
official texts of the Convention, their establishment in other
languages and the depositary functions of the Secretary-
General. In substance these Articles are the same as Article 42
of the 1978 Act of the Convention.