UPOV will be meeting in Geneva for its Spring session from 23-th to 27th March 2015. Its Administrative and Legal Committee (CAJ) will meet on 26th March, the Consultative Committee (CC) on 27th March in the morning while its highest decision-making body, the UPOV Council on 27th March in the afternoon. The meeting of the CC is closed to observers.
UPOV’s highest body – the UPOV Council will be extending the appointment of the Vice Secretary-General of UPOV Mr. Peter Button for the period 30th November 2015 to 30th November 2018. UPOV Council is also expected, among other issues, to examine the conformity of the “Draft provisions of Book Four ‘Plant Varieties’ of Law No. 82 of 2002 Pertaining to the Protection of Intellectual Property Rights” of Egypt, as well as the “Act of Plant Varieties Registration, Control and Certification of Seeds and Plant Materials of 2003” of the Islamic Republic of Iran with the 1991 Act of the UPOV Convention.
The Industry proposal for an internationally harmonized filing system
While the UPOV Council formally adopts the final policy decision, the Consultative Committee (CC) is the main body that discusses and agrees on policy issues before recommending the same to the UPOV Council for adoption.
When it meets on 27th March, the CC will be considering a proposal to establish a centralized harmonized system for the administration and examination of PBR applications to be known an “International System of Cooperation” (ISC), by way of a simple “agreement” adopted by the Council, UPOV’s highest governing body.
The ISC is a demand of the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and CropLife International.
UPOV Secretariat argues that such “agreement” is comparable to the “Agreement between the World Intellectual Property Organization and the International Union for the Protection of NewVarieties of Plants”, which sets out the organizational arrangements between WIPO and UPOV.
APBREBES shares the view which has been recently published by the Third World Network, that UPOV Secretariat’s approach to the ISC proposal is “flawed” and downplays the implications that ISC will entail for UPOV members. The ISC proposal is UPOV- plus with legal implications for individual UPOV members and will involve significant administrative, resource and financial implications. Thus if an ISC is to be established it will require a legal framework comparable to UPOV Acts of 1978 and 1991 whereby countries that wish to be parties to the ISC would have to formally accept the Treaty through accession or ratification process.
They also question whether UPOV members have the mandate to authorise or engage in negotiations on a new treaty to establish ISC.
In addition, they also question the need for ISC, pointing to a number of factors indicating that the proposed harmonization is presently unnecessary and undesirable.
Industry’s proposal for the establishment of ISC entails a centralized mechanism for filing PBR application, with standardized requirements and forms, which would then be assessed for compliance with formal requirements and novelty by selected “preliminary examining office(s)”. The application form would then be distributed to UPOV members designated by the breeder. The system would also, inter alia, encompass centralized DUS examination systems whereby accredited DUS testing stations would issue test reports for other UPOV members.
Industry anticipates that establishment of the proposed ISC will result in “More PBR applications by more breeders in more crops, countries and regions” as “it will be easier for breeders to file applications, so more applications can be expected by the PBR offices in countries where previously there have been few applications”.
UPOV Secretariat claims that elements of the ISC are based on “existing provisions” of the UPOV Convention. A review of Industry’s Proposals and the Acts of 1978 and 1991 revealed that this conclusion is incorrect. Industry’s proposal as well as UPOV Secretariat’s elaboration of that proposal is about overhauling the way PBR applications are filed and examined. The elements it proposes are UPOV-plus with legal implications for UPOV members. The establishment of ISC would also involve significant resource and financial implications.
Thus if an ISC is to be established it will require a legal framework comparable to UPOV Acts of 1978 and 1991.
Other concerns include the fact that the case for ISC has not been made, that the effect of ISC Reports/Decisions will be binding, and the universal fee schedule. Also, the Secretariat argues that the ISC would build on the Electronic Application System (EAS) Project. However, the latter is merely a project to initiate electronic filing system and UPOV Members are not required to implement this system. Once ISC is agreed to by way of an international treaty, EAS may be a component of the ISC. But to argue as the Secretariat has done that ISC can be implemented by extending the remit of the EAS Project is simply downplaying the legal, financial and resource implications that ISC will entail for the UPOV Union.
It is also concerning that the CC is being asked to consider the industry proposal, without giving other stakeholder groups such as APBREBES and La Via Campesina an opportunity to present their views on the proposal in the CC meeting.
Other topics to be discussed at the Consultative Committee
Further the CC will discuss a Special Project to cover financing of the Training and Assistance Strategy, which is also proposed to be revised. Anticipating demand from OAPI and ARIPO states, the strategy also covers non-UPOV member states other than OAPI. It covers activities organised by UPOV as well as by others. APBREBES rejects such UPOV activities with regard to UPOV non-member states, as the trainings given by UPOV are narrowly focussed on the UPOV System and do take into account the needs of developing countries to develop a system which fit’s to their needs. UPOV-Trainings do not support countries in the development of seed policies which takes into account the role of the informal as well the formal seed system, as proposed by the newly adopted FAO- Guide for National Seed Policy Formulation, or the obligations under the International Treaty for Plant Genetic Resources for Food and Agriculture.
CC will also be informed about the recent developments with regard to the Interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture.
Administrative and Legal Committee (CAJ)
The CAJ will be considering various “Explanatory Notes” on Cancellation of Breeder’s Rights, Nullity of Breeders’ Rights, Propagation and Propagating Material and Provisional Protection. These Explanatory Notes are intended by UPOV to provide guidance with regard to implementation of UPOV 1991, though the only binding text is the Act of 1991. However for purposes of interpreting national PVP legislation, national courts and others may potentially rely on these Notes. Thus it is importance to ensure that these Notes do not include a prescriptive interpretation.
The CAJ will also consider the meeting results and further work plans of the Working Group on Biochemical and Molecular Techniques , and DNA Profiling in Particular (BMT) as well as the Technical Committee. Observers are concerned that enforcement of PBRs with the help of DNA fingerprints will entail costly technical and questionable legal preconditions to be provided by UPOV and its member states.