[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.


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