UPOV’s 2016 Spring Session - Upcoming Issues

Tuesday, 15 March 2016

UPOV members are meeting in Geneva this week for its Spring session. Its main rule-making body, the Consultative Committee (CC) will meet on 17th March in the morning to be followed by the UPOV Council, its highest decision-making body. Generally the proceedings of the CC are closed to observers.

Some of the major issues that will be considered by the CC and the UPOV Council are the “International System of Cooperation” and the interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).  In addition, the CC and Council will also consider a  draft programme of a seminar on Propagating and Harvested Material that will be held on 24th October in Geneva and an Explanatory Note on Propagating Material as well as Internal Audit and Reports of the WIPO Independent Advisory Oversight Committee.

International System of Cooperation (ISC) (CC/91/5)

The “International Systems of Cooperation” (ISC) is an initiative proposed by the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and CropLife International (CLI), aimed at establishing a harmonized mechanism for the filing and examination of applications for plant breeders’ rights (PBRs), with standardized requirements and forms which would then be assessed for compliance with formal requirements and novelty by selected preliminary examining office(s) as well as centralized testing of the distinctness, uniformity and stability of the variety.

Since it was first introduced, a number of UPOV members have questioned the proposal in particular the need for such a harmonized mechanism and its implications for national and regional plant variety offices. At the last UPOV session in October 2015, Secretariat prepared information (in CC/90/10) about the need for ISC. However several Member states and observers found the information to be “vague” and inadequate to justify embarking on a harmonization initiative in UPOV. See Newsletter Issue # 19, December 10, 2015

The last UPOV session agreed “that more information, including statistical information, and a legal analysis was needed with regard to a possible ISC and agreed to request the Office of the Union to prepare a document containing a draft mandate and terms of reference for a possible working group (ISC-WG) to explore the issues concerning a possible international system of cooperation (ISC), as presented in the document of the eighty-ninth session of the Consultative Committee and additional issues raised by members of the Union, to be considered by the Consultative Committee at its ninety-first session, to be held in Geneva in March 2016. That document would also present the additional issues provided in writing by members of the Union”.

The upcoming CC will consider CC/91/5, which contains comments from Denmark, Japan, New Zealand, Norway and Russia as well as Draft Terms of Reference for the setting up of a working group for a possible ISC.

The comments by UPOV members clearly question the need for ISC, its legality and the implications of such a system on national PVP systems. Given the concern around ISC, it is apparent, that these issues need to be further discussed in the CC and it would be premature to set up a working group. 

For more background information: Multinational seed industry pitches for further harmonization in UPOV; A simple “agreement” proposed to accommodate Industry’s UPOV-plus demands ; Vague Results Question the Need for Harmonized PVP Filing System in UPOV

Interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) (CC/91/6)

The October 2015 session of the Consultative Committee agreed as a first step to invite the Secretary of the ITPGRFA to make a presentation at its ninety-first session (in March 2016) on possible areas of interrelations between the ITPGRFA and the UPOV Conventions.

The Consultative Committee also agreed that members of the Union should be invited to comment on the areas of interrelations identified by ITPGRFA and suggest any other areas of interrelations. It also agreed that the information should be compiled by the Secretariat for discussion at the ninety-first session in conjunction with the presentation by the Secretary of the ITPGRFA. The Consultative Committee further discussed the idea of a symposium in which Contracting Parties would present information on their experiences in implementing the UPOV Convention and the ITPGRFA.

The issue of interrelations of the ITPGRFA with UPOV and WIPO is the result of the ITPGRFA Governing Body Resolutions on Article 9 (which concerns Farmers’ rights) requesting the Secretary of the ITPGRFA to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments.

The upcoming CC will consider CC/91/6, which contains comments by Denmark, Germany, Norway, Turkey and the US on the matter. Annex II of CC/91/6 contains the preliminary list of issues on interrelations of the ITPGRFA and the relevant international instruments of UPOV and WIPO. The CC will also be considering the idea of a symposium in which contracting Parties would present information on their experiences in implementing the UPOV Convention and the ITPGRFA.

On this matter APBREBES has in a letter to UPOV members stated that “the proposed symposium is inadequate to meet the objectives of the Resolutions of the Governing Body of the ITPGRFA” and that it is neither participatory nor inclusive as it is limited to UPOV Contracting Parties presenting information on their experiences in implementing the UPOV Convention and the ITPGRFA.

The letter refers to Notification GB6-028 of the ITPGRFA and states “the International Treaty outlines a clear process for the identification of interrelations in particular the convening of a team of independent experts to analyse the matter further supported by a transparent, participatory and inclusive process. This Notification was informed to you via a letter dated 27 March 2015 sent by the International Treaty. In October 2015, the 6th session of the Governing Body asked the Treaty Secretariat to “continue” with the process, clearly endorsing the steps outlined in Notification GB6-028.”

APBREBES’s letter further states: “if a symposium is to be organized, it should be seen only as one step in the process of identification of interrelations between the ITPGRFA and UPOV/WIPO. Such a symposium should ensure that there is a balance of views and in particular should ensure that there is adequate representation of civil society and peasant farmer organizations that are committed to the full implementation of Article 9 of the ITPGRFA as panellists in this symposium. The symposium should be open to the public and ensure the participation of delegates to the ITPGRFA. Most importantly such as symposium must not replace the need for more in-depth analysis by a group of independent experts supported by a transparent, participatory and inclusive process.”

The letter calls on UPOV members to join the process as envisaged by the ITPGRFA and its member states as outlined in Notification GB6-028.

Explanatory Note on Propagating Material under the UPOV Convention (UPOV/EXN/PPM/1 Draft 6)

The understanding and definitions of propagating material varies considerably among the member states. The UPOV Conventions do not provide a definition of “propagating material”. Industry has been pushing for a broad and prescriptive definition of “propagating material” in order to have more opportunities to enforce their plant breeders’ rights.

Draft 6 of the Explanatory Note essentially consists of just one paragraph:

“The UPOV Convention does not provide a definition of ‘propagating material’. Propagating material encompasses reproductive and vegetative propagating material. The following are non-exhaustive examples of factors that have been considered by members of the Union in relation to whether material is propagating material:

(i) plant or part of plants used for the variety reproduction;

(ii) whether the material has been used to propagate the variety;

(iii) whether the material is capable of producing entire plants of the variety and is factually used for propagating purposes;

(iv) whether there has been a custom/practice of using the material for propagating purposes or, as a result of new developments, there is a new custom/practice of using the material for that purpose;

(v) the intention on the part of those concerned (producer, seller, supplier, buyer, recipient, user);

(vi) if, based on the nature and condition of the material and/or the form of its use, it can be determined that the material is “propagating material”; or

(vii) the variety material where conditions and mode of its production meet the purpose of reproduction of new plants of the variety but not of final consumption.”

This revised Draft of the Explanatory Note will be considered at the upcoming UPOV sessions. Industry associations have all endorsed a new proposal of the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) to delete the second part of (iii). Thereby, all plant material with a capacity to reproduce could be seen as propagating material and be subject breeders’ rights. In future however, almost any plant material could be used for reproduction, as an industry representative in an earlier UPOV session had explained with regard to certain plant tissue culture techniques. 

Draft Program for a “Seminar on Propagating and Harvested Material in the Context of the UPOV Convention” (CC91/9)

Propagating and harvested Material has been an issue discussed in UPOV bodies for many years. Several drafts of Explanatory Notes have been discussed at the Administrative and Legal Committee (CAJ). CAJ had agreed that for the time being it would not be appropriate to develop a revision of the “Explanatory Notes on Acts in Respect of Harvested Material under the 1991 Act of the UPOV Convention” (document UPOV/EXN/HRV/1). However industry continues to push for a revised Explanatory Note that serves its interests.

At its October 2015 meeting, the CAJ proposed to the Council a one-day seminar on propagating and harvested material to be held in conjunction with the UPOV sessions in October 2016. The seminar should include speakers to report on cases in which the notions of harvested material and/or propagating material have been considered, and speakers from relevant academic institutions and judicial authorities to provide perspectives on the subject. CAJ members and observers would be invited to propose speakers.

The Council at its in October 2015 session endorsed this proposal. The seminar is scheduled to take place on 24th October 2016. The upcoming CC will consider a draft programme of the seminar.