During the last week of October, the Annual Session of UPOV 2023 took place, a space where important news was announced for plant breeders, and the new structure that will govern the main organization dedicated to the protection of new plant varieties was presented. On this occasion, Yolanda Huerta assumed the position of Vice Secretary-General, succeeding Peter Button, who led the organization for 13 years. Additionally, Martin Ekvad, the former president of the CPVO, was introduced as the Director of Legal Affairs, and Leontino Taveira as the Director of Global Development and Technical Affairs.
One of the most significant developments announced during this week of meetings was the adoption by the UPOV Council of the new Explanatory Notes on Essentially Derived Varieties. If you want to learn more details about this, please click here and review the press release that we issued in collaboration with a broad group of associations representing plant and seed breeders worldwide.
Check out the report prepared by our Technical Expert, Paulo Peralta, and the Legal Counsel, Selena Travaglio, regarding the key advancements and decisions made in the various working groups and committees.
Report from the Technical Expert of CIOPORA, Paulo Peralta
Technical Committee Meeting
The first two days brought together members of the Technical Committee (TC) and various Technical Working Parties (TWPs) to discuss critical issues in the field of plant variety protection. Then, the session advanced on the different subjects that had been addressed during the annual sessions of the TWPs. The most relevant topics are the following:
Breeders’ associations presented the topic of confidentiality of molecular information during the annual meeting of all TWPs. From the discussion, it was clear that there is a need for national legal frameworks capable of providing confidence to PBR applicants when they submit their plant samples and DNA information to the competent authorities.
The TC discussed the possibility of creating a common database between national authorities to exchange information in variety examination of apple mutants, as these types of applications are becoming more frequent. However, the proposal failed as the CPVO expressed the disadvantages of the open exchange of information and preferred to keep it on a bilateral basis.
New variety denomination classes for Prunusand other agricultural crops were adopted. In the case of Prunus varieties, the new denomination classes were created as plant breeding within this genus could lead to complex hybrids requiring the use of more than one denomination class and careful interpretation of the nomenclature.
Regarding the adopted Test Guidelines (TG), the TC approved the TGs of calluna, statice, oxypetalum (new TG), and oncidium in ornamental species, whilst in fruit crops it was adopted the TGs of strawberry, apple, and raspberry. Other TGs are ready for adoption, but the TC Enlarged Editorial Committee will review those in January 2024. These include mulberry (new TG), grapevine, sour cherry, amaryllis, and lavender.
Introduced by the Technical Working Party of Ornamental Crops (TWO), the use of illustrations to replace example varieties for asterisked quantitative characteristics during DUS testing has become a pragmatic practice for examiners. The proposal has been analyzed by other TWPs and now the TC is working on a draft proposal to amend current guidelines.
Another additional point of discussion was the increasing number of new ornamental varieties that traditionally have been used as agricultural, fruit, or vegetable crops. This includes ornamental varieties of sweet potatoes, sunflowers, alocasia, plums, and other varieties that will require the use of additional characteristics or additional states of expression in the TGs to adapt the DUS tests.
This year, the TWV proposed a change in the declaration of disease resistance characteristics, as well as modifications in the terminology used for the evaluation of disease resistance to make it equivalent to the one used in the industry. Disease resistance characteristics are taking more relevance during DUS testing, and UPOV has acknowledged this, by considering the organization of an open discussion session for next year. CIOPORA, in conjunction with other breeders’ organizations and certain UPOV Members, will prepare the topics for this discussion session. This action is part of CIOPORA’s anticipation of the importance of the assessment of physiological characteristics for new varieties of asexually reproduced horticultural plants.
Another subject for discussion was the updating of principal botanical names of species in the GENIE database, which is currently done by following developments in the GRIN database. Changes in botanical names represent a challenge for updating the information to UPOV Members, and this can lead to some extent to issues in the examination of plant denominations. The TC is looking to offer alternatives to keep the changes of botanical names updated to all UPOV Members.
A proposal for restructuring the work of the TWPs was presented to the TC. Two main elements were considered in this proposal. Element 1 focuses on improving the workflow during the meetings of the TWPs. It was recommended to concentrate in harmonization of procedures, exchange of information, and promoting interaction among experts. Practical guidance on DUS examination procedures, including the use of Test Guidelines, was also encouraged. TWPs should hold hybrid meetings annually with a significant focus on DUS procedures, technical visits, calibration exercises, and related discussions. More information derived from the work of the TWPs should be available online on the UPOV website, and the UPOV office should guide the execution of the meetings. Furthermore, seminars on testing methods and techniques might be organized along with meetings of the TC. Consideration of research exhibitions and poster sessions was also recommended in conjunction with TC seminars. Element 2 highlights the importance of continuing discussions on Test Guidelines as a means of harmonizing DUS procedures and facilitating interaction and experience sharing among experts during TWP meetings.
Meetings on Electronic Applications (EAM)
The objective of this recently organized meeting is to update members and Observers of UPOV about new developments for the exchange and consultation of electronic information related to plant variety applications.
In September 2023, UPOV officially launched the e-PVP, which is a solution that provides the following components to assist UPOV Members in implementing electronically the UPOV system of plant variety protection:
UPOV PRISMA: online application tool for making applications to PVP Offices.
UPOV e-PVP Administration Module: a digitalized system for PVP offices to manage applications and grants, communicate with applicants and holders, publish information, and transmit data to the PLUTO Database.
PLUTO database: information on plant varieties.
UPOV e-PVP DUS Report Exchange Module: a platform for PVP offices to exchange DUS reports.
Member Cooperation Platforms: the basis for platforms for UPOV Member cooperation in the administration and examination of applications.
To date, the e-PVP system has been tested in 20 UPOV Members, such as the CPVO, Canada, the UK, and many others from Asia. The e-PVP has already been implemented in Vietnam and soon will be in Ghana. Other members, such as the CPVO, Netherlands, and Canada have expressed their commitment to join the UPOV e-PVP DUS Report Exchange Module. The United Kingdom also announced the intention to join UPOV e-PVP and planned to launch UPOV e-PVP in March 2024.
Concluding remarks on technical meetings
The 2023 Annual Session of UPOV witnessed significant developments and discussions on the technical side. Key topics included the restructuring of the workflow of the TWP and the definition of the priority discussion during the execution of its activities. Additionally, the newly launched e-PVP system showcased digital tools and platforms to enhance electronic information exchange regarding plant variety applications. Overall, the TC and side meetings were a great forum to strengthen CIOPORA’s collaborative actions with other breeders’ associations and an opportunity for recognition from different UPOV Members about our efforts to promote PBRs and initiatives to build a better PVR system
Acronyms
CPVO - Community Plant Variety Office
TG - Technical Guideline
DUS - Distinction, Uniformity and Stability
TWPs - Technical Working Parties
TC - Technical Committee
TWV - Technical Working Party for Vegetables
TWO - Technical Working Party for Ornamental Plants and Forest Trees
Report from the Legal Counsel of CIOPORA, Selena Travaglio
Throughout the day on Wednesday, the meetings of the Administrative and Legal Committee (CAJ), the Working Groups on Harvested Material, and Small Holder Farmers (respectively, WG-HRV and WG-SHF) followed one after the other.
Stepping up cooperation with stakeholders to increase awareness of the UPOV system, providing more guidance on its operation and advantages, and supporting UPOV Members and prospective members with the highest-quality services (e.g., through a Helpdesk on UPOV services and UPOV e-PVP information sessions) have been set as the guiding objectives of the Office’s activity for the near future.
After a roundup of the latest developments within the Working Groups and the Technical Committee (please, see above), the outcome of the survey jointly run by the seed breeders´ associations (ISF, CropLife International, SAA, APSA, AFSTA, and Euroseeds) to assess the impact of commercial exploitation of the hybrid on the novelty of parent lines, was shared. The underlying principle advocated is that hybrid and parent lines are different varieties, both entitled to protection on their own. Thus, the exploitation of the hybrid should not affect the novelty of the parents. The purpose of the study was, hence, to ascertain if, based on commercial practices, the novelty of the inbred lines was lost by the exploitation of the hybrid variety. Out of 56 UPOV Members who responded to the survey, the majority (30) replied that the novelty of parent lines was not lost by the exploitation of the hybrid variety; while a smaller group (12) replied in the affirmative; and a residual group (14) had limited experience on the topic. However, more information was deemed necessary, so the matter was referred to further discussion.
As most are aware, the UPOV Convention does not provide a definition of “propagating material” or “harvested material.” To make up for this deficiency, the UPOV has drawn up and made available a set of specific “Explanatory Notes” including the “Explanatory Notes on Propagating Material,” which provides a list of non-exhaustive examples of factors that can be considered to assess if the material is propagating material. In March 2023, the WG-HRV, in the context of the revision of the aforesaid Explanatory Notes, agreed to adjust the aforesaid list, crossing out “the intention on the part of those concerned (producer, seller, supplier, buyer, recipient, user),” given its subjective nature. Contextually, it was clarified in the same provision that even only one of said factors could be used to decide whether material is propagating material.
In parallel, it was decided to carry out a study to delve deeper into the “Scope of the Breeder’s Right” provided for by Article 14(1) and (2) of the 1991 Act. The study – entrusted to external experts - is intended to encompass the notions of “unauthorized use” and “reasonable opportunity,” referred to in the cited provision, and the interplay with the following provision on the “Exhaustion of the Breeder’s Right,” set out in Article 16. Further to a first round of written proposals aimed at defining the terms of reference of the study and possible expert names, at this October meeting, some additional elements have been specified. The appointment of a team of 3-4 experts with a group leader was preferred by a large majority over a single person. There was also an exchange of views on the desirability of taking into account the relevant case law of the UPOV Members for the purpose of the study, promoted and strongly held by the European Union, but particularly opposed by Japan, in favor of an analysis strictly focused on the interpretation of the rule of law. Controversial issues, that are not adequately defined by law, may have been, in fact, addressed by national decisions or by the European Court of Justice. However, given the divergence of views on the point, the discussion has stopped on a middle way proposed by the U.S.A. – envisaging the possibility for a short factual statement on the relevant case law – and will be resumed at the next meeting. In the meantime, CIOPORA is coordinating with the other breeders´ associations for the assignment to be entrusted to professionals with specific and extensive experience in the field, to ensure a correct interpretation of the UPOV provision, which represents the heart of the plant variety protection system.
Another key point of discussion was the revision of the “Explanatory Notes on Provisional Protection.” Although the need to reach a clear and uniform interpretation of the scope of “provisional protection” among all UPOV Members has been confirmed as a shared feeling, being an indispensable precondition to ensure effective implementation of the UPOV plant variety protection system, views diverged significantly on the proposed lexical changes to the relevant text. The use of the term “minimum level of protection” – proposed by the breeders ‘associations – and the introduction of the concept of “full protection” in relation to the provisional protection period were among the points that have most animated the meeting discussion.
Despite the devising reference to “full protection,” the need for stronger protection during the provisional protection period was nevertheless emphasized by the European Union and agreed upon by the WG-HRV members, being recognized as a critical incentive for breeders to make their state-of-the-art varieties readily available on the market. Joint attention was also drawn to the fact that the early release of new varieties adapted to address a wide range of challenges, including sustainability, is to the benefit of growers, consumers, and society at large. The European Union furthermore validated the breeders associations' observations that ensuring a higher level of protection during the provisional protection period in all UPOV Members is particularly important for multi-annual plants (such as fruit trees), where propagating material obtained during the period of provisional protection continues being cultivated and producing harvested material (fruits) for many years during the period of protection, without the titleholder being able to exercise his rights validly. In anticipation of the next meeting, breeders´ associations were proposed to provide clarifying examples of what would change with full protection during provisional protection. The possibility of including additional wording specifically referring to vegetatively propagated varieties will be more thoroughly evaluated. Further information will be provided shortly by UPOV, and CIOPORA will be at the forefront in providing all necessary inputs.
The last day was entirely dedicated to the UPOV Council Meeting.
Among the highlights of the meeting there was definitely the signing of the expressions of commitment to join the UPOV e-PVP DUS Report Exchange Module by Canada, the European Union and the Netherlands (Kingdom of). Commitment was also expressed by Ghana and the United Kingdom.
However, the pivotal moment of the meeting was the adoption of the long-awaited revision – included in the so-called “Draft 4” - of the “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention”, which brings welcome clarification that retaining all essential characteristics of the initial variety is no longer a precondition for an essentially derived variety. The Council furthermore agreed to add, as a standing item on the CAJ agenda, “Updates from UPOV Members and Observers relating to the implementation of the concept of essentially derived varieties”; and, based on relevant updates, the CAJ will advise on whether it would be appropriate to develop further guidance on essentially derived varieties. For further information, please refer to the UPOV Council Meeting Documents and the aforesaid CIOPORA press release.