Key Benefits:
1518 OF 2012
(April 13)
Official Journal No. 48.400 of 13 April 2012
CONGRESS OF THE REPUBLIC
C-1051-12 >
By means of which the "International Convention for the Protection of Vegetable Varieties" is adopted, dated 2 December 1961, revised in Geneva on 10 November 1972, on 23 October 1978 and on 19 March. 1991.
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the "International Convention for the Protection of Vegetable Varieties", on 2 December 1961, revised in Geneva on 10 November 1972, 23 October 1978 and 19 March 1991, which the letter says:
(To be transcribed: attached photocopy of the full text of the international instruments mentioned).
INTERNATIONAL CONVENTION FOR THE PROTECTION OF PLANT VARIETY
of 2 December 1961, revised in Geneva on 10 November 1972, 23 October 1978 and 19 March 1991
SPANISH OFFICIAL TEXT
UPOV
International Union for the Protection of Vegetable Varieties
GENEVA 1996
UPOV NO 221 (S)
ISSBN 92-805-0391-X
UPOV 1992
Reprinted 1996, 2001
International Convention for the Protection of Vegetable Varieties of 2 December 1961, revised in Geneva on 10 November 1972, 23 October 1978 and 19 March 1991
Item List
Chapter I: Definitions
Article 1: Definitions
Chapter II: General obligations of Contracting Parties
Article 2: Fundamental Obligation of Contracting Parties
Article 3: Generals and species to be protected
Article 4: National treatment.
Chapter III: Conditions for the granting of the breeder right
Article 5: Protection conditions
Article 6: New
Article 7: Distinction
Article 8: Homogeneity
Article 9: Stability.
Chapter IV: Order to grant the breeder right
Article 10: Request Presentation
Article 11: Priority right
Item 12: Request Review
Article 13: Provisional protection.
Chapter V: The rights of the breeder
Article 14: Scope of the breeder right
Article 15: Exceptions to the breeder right
Article 16: Obtention Right Exhaustion
Article 17: Limitation of the exercise of the breeder right
Article 18: Economic Regulations
Article 19: Obtention right duration
Chapter VI: Name of the variety
Article 20: Denomination of the Variety
Chapter VII: Nullity and expiration of the breeder right
Article 21: Obtention right nullity
Article 22: Obtention right expiration
Chapter VIII: The Union
Article 23: Members
Article 24: Legal Status and Headquarters
Article 25: Organ
Article 26: The Council
Article 27: The Union Office
Article 28: Languages
Article 29: Finance.
Chapter IX: Application of the Convention; other agreements
Article 30: Convention Application
Article 31: Relations between Contracting Parties and States Required by Previous Acts
Article 32: Special Agreements
Chapter X: End Clauses
Article 33: Signature
Article 34: Ratification, Acceptance, or Approval; Accession
Article 35: Reservations
Article 36: Communications regarding protected laws and genera and species; information to be published
Article 37: Entry into force; inability to adhere to previous Acts
Article 38: Convention Review
Article 39: Convention Reporting
Article 40: Maintenance of acquired rights
Article 41: Original and official texts of the Convention
Article 42: Depository functions.
DEFINITIONS.
ARTICLE 1. DEFINITIONS. C-1051-12 >
For the purposes of this Act:
(i) "this Convention" means the present Act (of 1991) of the International Convention for the Protection of Plant Varieties;
(ii) "Act of 1961/1972" means the International Convention for the Protection of Plants of Plants of 2 December 1961, as amended by the Additional Act of 10 November 1972;
(iii) "Act of 1978" means the Act of 23 October 1978 of the International Convention for the Protection of Plants;
iv) "obtentor" shall be understood
-the person who has created or discovered and put a variety to a point,
-the person who is the employer of the person mentioned above or who has commissioned his or her work, where the legislation of the Contracting Party concerned so provides, or
-the cause of the first or second person mentioned, as the case may be;
v) "breeder's right" means the right of breeder provided for in this Convention;
(vi) "variety" means a set of plants of a single botanical taxon of the lowest known range which, irrespective of whether or not it responds fully to the conditions for the granting of a breeder's right, can
-defined by the expression of the characters resulting from a certain genotype or a certain combination of genotypes,
-distinguish from any other set of plants by the expression of one of those characters at least,
-be considered as a unit, given its ability to spread without alteration;
vii) "Contracting Party" means a State or an intergovernmental organization party to this Convention;
viii) shall mean "territory", in relation to a Contracting Party, when it is a State, the territory of that State, and, where it is an intergovernmental organization, the territory in which the Treaty establishing the Treaty applies. intergovernmental organization;
ix) "authority" means the authority referred to in -article 30.1) (ii);
x) "Union" means the International Union for the Protection of Vegetable Varieties established by the Act of 1961 and mentioned in the Act of 1972, in the Act of 1978 and in this Convention;
(xi) "Union Member" shall mean a State party to the Act of 1961/1972 or the Act of 1978, or a Contracting Party.
GENERAL OBLIGATIONS OF CONTRACTING PARTIES.
ARTICLE 2. FUNDAMENTAL OBLIGATION OF THE CONTRACTING PARTIES. C-1051-12 >
Each Contracting Party shall grant and protect the rights of the breeder.
ARTICLE 3. GENERA AND SPECIES TO BE PROTECTED. C-1051-12 >
1) [Member States of the Union] Each Contracting Party which is bound by the Act of 1961/1972 or by the Act of 1978 shall apply the provisions of this Convention,
(i) on the date on which it is bound by this Convention, to all genera and plant species to which, on that date, it applies the provisions of the Act of 1961/1972 or the Act of 1978, and
(ii) at the latest at the expiry of a period of five years from that date on all genera and plant species.
2) [New Members of the Union] Each Contracting Party which is not bound by the Act of 1961/1972 or by the Act of 1978, shall apply the provisions of this Convention,
i) on the date on which it is bound by this Convention, at least to 15 genera or plant species, and
(ii) at the latest at the expiration of 10 years from that date, to all genera and plant species.
ARTICLE 4. NATIONAL TRY. C-1051-12 >
1) [Treatment] Nationals of a Contracting Party, as well as natural persons who have their domicile in the territory of that Contracting Party and legal persons who are based in that Contracting Party, shall enjoy, in the territory of each of the other Contracting Parties, in respect of the granting and protection of the rights of breeder, of the treatment which the laws of that other Contracting Party may grant or may subsequently grant to its national, all without prejudice to the rights provided for in this Convention and subject to the compliance by such nationals and natural or legal persons with the conditions and formalities imposed on nationals of the other Contracting Party mentioned.
2) ["Nationals"] For the purposes of the preceding paragraph, "nationals" shall mean, where the Contracting Party is a State, the nationals of that State, and, where the Contracting Party is an organization intergovernmental, nationals of any of its Member States.
CONDITIONS FOR THE GRANTING OF THE BREEDER RIGHT.
ARTICLE 5. CONDITIONS OF PROTECTION. C-1051-12 >
1) [Criteria to be met] The breeder right will be granted when the variety is
i) new,
ii) other,
iii) homogeneous and
iv) stable.
2) [Other Conditions] The grant of the breeder's right may not be dependent on additional or different conditions of the above, subject to the variety being designated by a denomination as provided in Article 20, that the breeder has satisfied the formalities provided for by the legislation of the Contracting Party before whose authority the application has been submitted and which has paid the fees owed.
ARTICLE 6. NEW. C-1051-12 >
1) [Criteria] The variety shall be considered new if, on the date of filing of the application for the breeder's right, the propagating material or vegetative propagation material or a product of harvest of the variety does not has been sold or delivered to third parties in any other way, by the breeder or with his consent, for the purposes of the holding of the variety.
i) in the territory of the Contracting Party in which the application was filed, more than one year before that date, and
(ii) in a territory other than that of the Contracting Party in which the application was submitted, more than four years or, in the case of trees and vines, more than six years before that date.
2) [Recent Varieties] When a Contracting Party applies this Convention to a genus or plant species to which this Convention or an earlier Act did not apply, it may consider that a variety of recent creation on the date of extension of the protection satisfies the condition of novelty as defined in paragraph 1), even if the sale or delivery to third parties described in that paragraph had taken place before the time limits defined in the above paragraph.
3) ["Territories" in certain cases] For the purposes of paragraph (1), Contracting Parties which are Member States of a single intergovernmental organization, when the rules of that organization are require, may act jointly to assimilate acts carried out in the territories of the Member States of that Organisation to acts carried out on their own territory; where appropriate, they shall notify the Secretary-General of such assimilation.
ARTICLE 7. DISTINCTION. C-1051-12 >
The variety shall be considered to be different if it is clearly distinguished from any other variety whose existence, at the date of submission of the application, is known to be known. In particular, the deposit, in any country, of an application for the granting of a breeder's right for another variety or registration of another variety in an official register of varieties, shall be deemed to make this other variety notoriously known from the date of the application, if it leads to the granting of the breeder's right or to the registration of that other variety in the official register of varieties, as the case may be.
ARTICLE 8. HOMOGENEITY. C-1051-12 >
The variety shall be considered homogeneous if it is sufficiently uniform in its relevant characters, subject to the foreseeable variation in view of the particularities of its sexued reproduction or of its vegetative propagation.
The variety shall be considered to be stable if its relevant characters remain unchanged after repeated reproductions or multiplications or, in the case of a particular cycle of reproductions or multiplications, at the end of each cycle.
GRANT ENTITLEMENT REQUEST.
ARTICLE 10. SUBMITTING REQUESTS. C-1051-12 >
1) [Place of first application] The breeder shall have the power to choose the Contracting Party to whose authority he wishes to file his first application for the right of breeder.
2) [Date of subsequent requests] The breeder may request the granting of a breeder's right to the authorities of other Contracting Parties, without waiting for a breeder's right to be granted to him. the authority of the Contracting Party that received the first request.
3) [Independence of Protection] No Contracting Party may refuse to grant a breeder's right or limit its duration for the reason that protection for the same variety has not been requested, denied or has expired in another State or other intergovernmental organization.
ARTICLE 11. RIGHT OF PRIORITY. C-1051-12 >
1) [The right; its duration] The breeder who has submitted in due form an application for protection of a variety in one of the Contracting Parties ("first application") shall enjoy a right of priority during a a 12-month period for the submission of an application for the granting of a breeder's right for the same variety to the authority of another Contracting Party ('subsequent application '). This period shall be counted from the date of submission of the first application. The day of filing shall not be understood within that period.
2) [Claim of entitlement] To benefit from the right of priority, the breeder must claim, in the subsequent application, the priority of the first application. The authority to which the subsequent application has been lodged may require the applicant to provide, within a period of not less than three months from the date of submission of the subsequent application, a copy of the documents constituting the first application, certified by the authority to which it has been submitted, as well as samples or any other evidence that the variety subject to the two applications is the same.
3) [Documents and Material] The breeder shall benefit from a period of two years after the expiry of the priority period or, where the first application is rejected or withdrawn, of an appropriate period of time from the rejection or the withdrawal, in order to provide to the authority of the Contracting Party before which it has submitted the subsequent application, any information, document or material required by the laws of this Contracting Party for the examination provided for in the Article 12.
4) [Facts that take place during the priority period] The facts that take place within the time limit set in paragraph 1), such as the filing of another application, or the publication or use of the variety the first application shall not constitute grounds for rejection of the subsequent application. These facts will also not be able to create rights for third parties.
ARTICLE 12. EXAMINATION OF THE APPLICATION. C-1051-12 >
The decision to grant a breeder's right will require an examination of compliance with the conditions laid down in Articles 5 to 9. Within the framework of this examination, the authority may cultivate the variety or carry out other necessary tests, carry out the cultivation or other necessary tests, or take into account the results of the tests in cultivation or other tests already carried out. With a view to this examination, the authority may require all necessary information, document or material from the breeder.
ARTICLE 13. INTERIM PROTECTION. C-1051-12 >
Each Contracting Party shall take measures to safeguard the interests of the breeder during the period between the filing of the application for the grant of a breeder's right or its publication and the granting of the right. As a minimum, such measures shall have the effect that the holder of a breeder's right is entitled to an equitable remuneration for whom, in the abovementioned period, he has carried out acts which, after the granting of the right, require the approval of the breeder in accordance with the provisions of Article 14. A Contracting Party may provide that such measures shall only take effect in respect of persons to whom the breeder has notified the submission of the application.
THE AGENT ' S RIGHTS
ARTICLE 14. SCOPE OF THE BREEDER ' S RIGHT. C-1051-12 >
1) [Acts with respect to propagating or multiplication material] a) Subject to the provisions of Articles 15 and 16, require the approval of the breeder for the following acts in respect of propagating or propagating material of the protected variety:
i) production or playback (multiplication),
ii) preparation for the purposes of reproduction or multiplication,
iii) the offer for sale,
iv) the sale or any other form of marketing,
v) the export,
vi) the import,
vii) possession for any of the purposes mentioned in points (i) to (vi), supra.
b) The breeder may subordinate its authorization to conditions and limitations.
2) [Acts with respect to the product of harvest] Subject to the provisions of Articles 15 and 16, the approval of the breeder shall be required for the acts referred to in points (i) to (vii) of paragraph (1) (a) carried out in respect of the product of the harvest, including whole plants and parts of plants, obtained by unauthorised use of propagating material or multiplication of the protected variety, unless the breeder has been able to exercise reasonably their right in relation to such propagating or propagating material.
3) [Acts with respect to certain products] Each Contracting Party may provide that, subject to the provisions of Articles 15 and 16, the approval of the breeder for the acts referred to in points (i) to (vii) of paragraph (1) (a) in respect of products manufactured directly from a crop product of the protected variety covered by the provisions of paragraph (2), by unauthorised use of the said product harvest, unless the breeder has been able to reasonably exercise his right in relation to that harvest product.
4) [Any Additional Acts] Each Contracting Party may provide that, subject to the provisions of Articles 15 and 16, it shall also be required the approval of the breeder for acts other than those referred to in points (i) to (vii) of paragraph 1) a).
5) [Derivative Varieties and some other varieties] a) The provisions of paragraphs 1) to 4) will also apply
i) to varieties derived essentially from the protected variety, when this is not in turn an essentially derived variety,
(ii) to varieties that are not clearly distinguished from the protected variety in accordance with the provisions of Article 7, and
iii) to varieties whose production requires repeated use of the protected variety.
b) For the purposes of paragraph a)i), a variety shall be deemed to be essentially derived from another variety ("the initial variety") if
i) is derived mainly from the initial variety, or from a variety that is in turn derived mainly from the initial variety, while preserving the expressions of the essential characters resulting from the genotype or the combination of genotypes of the initial variety,
ii) is clearly distinguished from the initial variety, and
(iii) except as regards the differences resulting from the derivation, it is in accordance with the initial variety in the expression of the essential characters resulting from the genotype or the combination of genotypes of the initial variety.
c) Essentially derived varieties may be obtained, for example, by selection of a natural or induced mutant or a somaclonal variant, selection of a variant individual among the plants of the variety initial, retracing or genetic engineering transformations.
ARTICLE 15. EXCEPTIONS TO THE BREEDER ' S RIGHT. C-1051-12 >
1) [Mandatory Exceptions] The breeder right will not be extended
i) to acts performed in a private framework for non-commercial purposes,
ii) to acts performed on an experimental basis, and
(iii) to acts performed for the purpose of the creation of new varieties as well as, unless the provisions of Article 14.5) apply, to the acts referred to in Article 14.1) to 4) made with such varieties.
2) [Optional Exception] Notwithstanding the provisions of Article 14, each Contracting Party may restrict the right of breeder to any variety within limits reasonable and subject to the safeguard of the legitimate interests of the breeder, in order to enable farmers to use the harvest product they have obtained for the purposes of reproduction or multiplication on their own holding. the cultivation, on its own holding, of the protected variety or of a variety covered by Article 14(5) (a) (i) or (ii).
ARTICLE 16. EXHAUSTION OF THE BREEDER ' S RIGHT. C-1051-12 >
1) [Exhaustion of right] The right of breeder shall not extend to acts relating to the material of its variety, or of a variety covered by Article 14.5), which has been sold or otherwise marketed in the territory of the Contracting Party concerned by the breeder or with his consent, or material derived from such material, unless such acts
i) involve a new reproduction or multiplication of the variety in question,
(ii) involve an export of material of the variety, which allows it to be reproduced, to a country which does not protect the varieties of the genus or the plant species to which the variety belongs, unless the exported material is intended for consumption.
2) [Sense of "Material"] For the purposes of paragraph 1), "material" shall be understood in relation to a variety,
i) the reproductive material or vegetative propagation material, in any form,
(ii) the product of the harvest, including whole plants and parts of plants, and
iii) any product manufactured directly from the product of the harvest.
3) ["Territories" in certain cases] For the purposes of paragraph (1), Contracting Parties which are Member States of a single intergovernmental organization, when the rules of that organization are require, may act jointly to assimilate acts carried out in the territories of the Member States of that organisation to acts carried out on their own territory; in that case, they shall notify the Secretary-General of such assimilation.
ARTICLE 17. LIMITATION OF THE EXERCISE OF THE RIGHT OF BREEDER. C-1051-12 >
1) [Public Interest] Except as provided for in this Convention, no Contracting Party may limit the free exercise of a breeder's right except for reasons of public interest.
2) [Equitable Remuneration] When such limitation has the effect of allowing a third party to perform any of the acts for which the consent of the breeder is required, the Contracting Party concerned shall adopt all measures necessary for the breeder to receive an equitable remuneration.
ARTICLE 18. ECONOMIC REGULATION. C-1051-12 >
The right of breeder is independent of the measures taken by a Contracting Party to regulate in its territory, the production, control and marketing of the material of the varieties, or the import and export of that material. In any event, such measures shall not impede the application of the provisions of this Convention.
ARTICLE 19. DURATION OF THE BREEDER ' S RIGHT. C-1051-12 >
1) [Protection Duration] The breeder right will be granted for a given duration.
2) [Minimum Duration] That duration may not be less than 20 years from the date of granting the breeder's right. For trees and vines, this duration may not be less than 25 years from that date.
VARIETY NAMING.
ARTICLE 20. VARIETY DENOMINATION. C-1051-12 >
1) [Designation of varieties by denomination; use of denomination] a) The variety shall be designated by a designation intended to be its generic designation.
b) Each Contracting Party shall ensure that, subject to the provisions of paragraph (4), no right relating to the designation registered as the name of the variety impedes the free use of the denomination in relation to the variety, even after the expiration of the breeder's right.
2) [Naming Characteristics] The name must allow the variety to be identified. It may not consist solely of figures, except where it is a practice for the designation of varieties. It shall not be liable to mislead or to give rise to confusion as to the characteristics, value or identity of the variety or the identity of the breeder. In particular, it shall be different from any denomination designating, in the territory of either Contracting Party, an existing variety of the same plant species or of a neighbouring species.
3) [Name Record] The variety denomination will be proposed by the breeder to the authority. If it is found that the name does not meet the requirements of paragraph 2, the authority shall refuse registration and shall require the breeder to propose another name within a prescribed time limit. The name shall be registered by the authority at the same time as the breeder's right is granted.
4) [Previous Third Party Rights] Previous third party rights will not be affected. If, under an earlier right, the use of the denomination of a variety is prohibited to a person who is obliged to use it, in accordance with the provisions of paragraph 7), the authority shall require the breeder to propose another denomination for the variety.
5) [Same name in all Contracting Parties] A variety may only be the subject of applications for the grant of a breeder's right under the same name in the Contracting Parties. The authority of each Contracting Party shall register the name so proposed, unless it finds that the name is inappropriate in the territory of that Contracting Party. In such a case, it shall require the breeder to propose another name.
6) [Mutual information of the authorities of the Contracting Parties] The authority of a Contracting Party shall ensure the communication to the authorities of the other Contracting Parties of the information concerning the names of varieties, in particular the proposal, the registration and the cancellation of names. Any authority may transmit its observations on the registration of a name to the authority which has communicated it.
7) [Obligation to use the name] Who, in the territory of a Contracting Party, proceeds for the sale or marketing of propagating material or vegetative propagation of a variety protected in that territory, shall be obliged to use the name of that variety, even after the expiry of the breeder's right relating to that variety, provided that, in accordance with the provisions of paragraph 4), oppose rights prior to such use.
8) [Indications used in association with denominations] When a variety is offered for sale or marketed, it will be permitted to associate a trademark or trade name, a trade name or an indication similar to the registered variety denomination. If such an indication is associated in this way, the name must, however, be easily recognizable.
OBTENTION RIGHT NULLITY AND EXPIRATION.
ARTICLE 21. NULLITY OF THE BREEDER ' S RIGHT. C-1051-12 >
1) [nullity causes] Each Contracting Party shall declare a breeder right which it has granted, if it is found that:
i) at the time of granting the breeder right the conditions set in Articles 6or and 7or were not effectively met,
ii) when the grant of the breeder's right was essentially founded on the information and documents provided by the breeder, the conditions set forth in Articles 8or 9or were not effectively met at the time of granting the breeder right, or
iii) the breeder's right was granted to a person who was not entitled to it, unless the person to whom the right corresponds has been transferred.
2) [Exclusion from any other cause] No right of breeder may be nullified for causes other than those mentioned in paragraph 1).
ARTICLE 22. OBTENTOR RIGHT EXPIRATION. C-1051-12 >
1) [Expiration Causes] a) Each Contracting Party may declare the expiration of the breeder's right that it would have granted, if it is found that the conditions are no longer met. fixed in Articles 8 and 9.
b) In addition, each Contracting Party may declare the expiration of a breeder's right which it would have granted if, within an established time limit and after having been required to do so,
i) the breeder does not present to the authority the information, documents or material deemed necessary to control the maintenance of the variety,
(ii) the breeder has not paid the fees due, if any, for the maintenance in force of his or her right, or
(iii) the breeder does not propose another suitable name, in the event of cancellation of the denomination of the variety after the granting of the right.
2) [Exclusion from any other cause] The expiration of a breeder's right may not be declared for reasons other than those mentioned in paragraph 1.)
THE UNION.
ARTICLE 23. MEMBERS. C-1051-12 > Contracting Parties are members of the Union.
ARTICLE 24. LEGAL STATUS AND LOCATION. C-1051-12 >
1) [Legal personality] The Union shall have legal personality.
2) [Legal capacity] The Union shall enjoy, in the territory of each Contracting Party, in accordance with the laws applicable in that territory, the legal capacity necessary to achieve its objectives and to exercise its functions.
3) [Headquarters] The headquarters of the Union and its permanent organs will be in Geneva.
4) [Headquarters Agreement] The Union has a Headquarters Agreement with the Swiss Confederation.
ARTICLE 25. ORGANOS. C-1051-12 >
The Union's permanent bodies shall be the Council and the Office of the Union.
ARTICLE 26. THE COUNCIL. C-1051-12 >
1) [Composition] The Council shall be composed of representatives of the members of the Union. Each member of the Union shall appoint a representative in the Council and an alternate. Representatives or alternates may be accompanied by deputy or advisers.
2) [President and Vice-Presidents] The Council shall elect a President and a First Vice President from among its members. Other Vice-Presidents may be elected. The Vice President will first replace the President in case of absence. The term of office of the President shall be three years.
3) [Sessions] The Council will meet at the invitation of its President. It shall hold an ordinary session once a year. In addition, the President may bring the Council together on his own initiative; he shall meet within three months at the request of at least one third of the members of the Union.
4) [Observers] Non-Union Member States may be invited to the meetings of the Council as observers. Other observers, as well as experts, may also be invited to these meetings.
5) [Council Functions] The functions of the Board shall be as follows:
i) to consider appropriate measures to ensure safeguard and promote the development of the Union;
ii) establish your regulations;
iii) appoint the Secretary-General and, if deemed necessary, a Deputy Secretary-General; set the conditions for his appointment;
iv) examine the annual activity report of the Union and establish the programme of future work of the
;v) give the Secretary-General all the necessary guidelines for the fulfilment of the Union's functions;
vi) establish the administrative and financial regulation of the Union;
vii) to examine and approve the Union budget and to set the contribution of each member of the Union;
viii) to examine and approve the accounts presented by the Secretary-General;
ix) set the date and place of the conferences provided in Article 38 and take the necessary steps to prepare them; and
x) in a general way, to take all decisions aimed at the proper functioning of the Union.
6) [Number of votes] a) Each member of the Union who is a State shall have a vote in the Council.
b) Any Contracting Party which is an intergovernmental organization may, in matters of its competence, exercise the voting rights of its Member States which are members of the Union. Such an intergovernmental organisation may not exercise the voting rights of its Member States if its Member States exercise their right to vote, and vice versa.
7) [Mayories] Any decision of the Council shall be adopted by a simple majority of the votes cast; however, any decision of the Council under paragraphs (5) (ii), (vi) and (vii) and under the of the href="ley_1518_2012.html#28"> 28.3), 29.5) b) , and 38.1) shall be adopted by a majority of three quarters of the votes cast. Abstention shall not be considered as voting.
ARTICLE 27. THE OFFICE OF THE UNION. C-1051-12 >
1) [Tasks and Address of the Office] The Office of the Union shall execute all tasks entrusted to it by the Council. It shall be headed by the Secretary-General.
2) [Functions of the Secretary-General] The Secretary-General shall be accountable to the Council; he shall ensure the execution of the decisions of the Council. It shall submit the budget to the Council for approval and ensure its implementation. It shall submit to it reports on its management and on the activities and financial situation of the Union.
3) [Staff] Subject to the provisions of Article 26(5) (iii), the terms of appointment and employment of staff members required for the proper functioning of the Union office shall be fixed by the administrative and financial rules.
ARTICLE 28. LANGUAGES. C-1051-12 >
1) [Office Languages] The Union Office shall use the Spanish, German, French and English languages in the performance of their duties.
2) [Languages in certain meetings] Council meetings, as well as review conferences, will be held in those four languages.
3) [Other languages] The Council may decide to use other languages.
ARTICLE 29. FINANCE. C-1051-12 >
1) [Revenue] Union expenses will be covered
(i) for the annual contributions of the Member States of the Union,
(ii) for remuneration for the provision of services,
iii) by miscellaneous revenue.
2) [Contributions: units] a) The share of each Member State of the Union in the total amount of annual contributions shall be determined by reference to the total amount of expenditure that they shall be covered by contributions from Member States of the Union and the number of units of contributions which are applicable to them pursuant to the provisions of paragraph 3. That part shall be calculated in accordance with the provisions of paragraph 4.
b) The number of contribution units will be expressed either in whole numbers or in unit fractions, with no fraction being less than a fifth.
3) [Contributions: part of each member] a)number of contribution units applicable to any member of the Union that is party to the Act of 1961/1972 or the Act of 1978 on the date of the which is bound by this Convention, shall be the same as that which was applicable to it immediately before that date.
b) Any Member State of the Union shall indicate at the time of its accession to the Union, by means of a statement addressed to the Secretary-General, the number of contribution units to be applicable to it.
(c)Member State of the Union may at any time indicate, by means of a statement addressed to the Secretary-General, a number of units of contribution other than that applicable to it under the paragraphs a) or b) supra. If such a declaration is made during the first six months of a calendar year, it shall take effect at the beginning of the following calendar year; otherwise, it shall take effect at the beginning of the second calendar year following the year during which the calendar year done.
4) [Contributions: Calculation of the Parties] a) For each financial year, the amount of a contribution unit shall be equal to the total amount of the expenses to be covered during that exercise by contributions from the Member States of the Union, divided by the total number of units applicable to those Member States.
b) The amount of the contribution of each Member State of the Union shall be equal to the amount of a contribution unit multiplied by the number of units applicable to that Member State.
5) [Contributions arrears] a) Subject to the provisions of section b), a Member State of the Union overdue in payment of its contributions may not exercise their right to vote in the Council if the amount of their delay is equal to or greater than that of the contribution to the Council for the last full year. The suspension of the right to vote shall not release that Member State from its obligations and shall not deprive it of the other rights deriving from this Convention.
b) The Council may authorise that Member State of the Union to retain the exercise of its right to vote as long as it considers that the delay is due to exceptional and unavoidable circumstances.
6) [Account Intervention] The intervention of the Union accounts shall be ensured by a Member State of the Union, in accordance with the modalities laid down in the administrative and financial rules. That Member State shall be designated by the Council, with its consent.
7) [Contributions from intergovernmental organizations] Any Contracting Party that is an intergovernmental organization shall be exempt from the payment of contributions. However, if you decide to pay contributions, the provisions of paragraphs (1) to (4) shall apply to you by analogy.
CONVENTION APPLICATION; OTHER AGREEMENTS.
ARTICLE 30. APPLICATION OF THE CONVENTION. C-1051-12 >
1) [Application Measures] Each Contracting Party shall take all measures necessary for the implementation of this Convention and, in particular,
i) shall provide appropriate legal remedies to effectively defend the rights of the breeder;
(ii) establish an authority responsible for granting rights of breeder or commission the authority established by another Contracting Party to grant such rights;
iii) ensure information to the public through the regular publication of information about
-requests for the rights of breeder and the rights of the breeder granted, and
-the proposed and approved denominations.
2) [Compliance of legislation] It is understood that, at the time of the submission of its instrument of ratification, acceptance, approval or accession, each State or intergovernmental organization must be in conditions, in accordance with their legislation, to give effect to the provisions of this Convention.
ARTICLE 31. RELATIONS BETWEEN THE CONTRACTING PARTIES AND THE STATES REQUIRED BY PREVIOUS ACTS. C-1051-12 >
1) [Relations between States bound by this Convention] Only this Convention shall apply to the Member States of the Union which are bound by this Convention and by an earlier Act of the same.
2) [Possibility of Relations with States not bound by this Convention] Any Member State of the Union not bound by this Convention may declare, by means of a notification addressed to the Secretary-General, which shall apply the last Act of the Convention for which it is bound, in its relations with any Member of the Union bound by this Convention only. After the expiry of a period of one month from the date of such notification and until the Member State of the Union which has made the declaration is bound by this Convention, that Member of the Union shall apply the latest Act by which is bound, in its relations with each of the members of the Union bound by this Convention only, while it shall apply this Convention in its relations with that Convention.
ARTICLE 32. SPECIAL AGREEMENTS. C-1051-12 >
Members of the Union reserve the right to enter into special arrangements for the protection of varieties, provided that such agreements do not contravene the provisions of this Convention.
FINAL CLAUSES.
ARTICLE 33. FIRMA. C-1051-12 >
This Convention shall be open to the signature of any State which is a Member of the Union on the day of its adoption. It shall be open for signature until 31 March 1992.
ARTICLE 34. RATIFICATION, ACCEPTANCE OR APPROVAL; ACCESSION. C-1051-12 >
1) [States and certain intergovernmental organizations] a) In accordance with this Article, any State may become a party to this Convention.
(b)in accordance with this Article, any intergovernmental organization may be party to this Convention
i) if it has competence for matters governed by this Convention,
(ii) if it has its own legislation providing for the granting and protection of rights of the breeder obliging all its Member States, and
(iii) if it has been duly authorised, in accordance with its internal procedures, to accede to this Convention.
2) [Instrument of Accession] Any State that has signed this Convention shall be party to the Convention by depositing an instrument of ratification, acceptance or approval of this Convention. Any State which has not signed this Convention or any intergovernmental organisation shall become a party to this Convention by depositing an instrument of accession. The instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General.
3) [Council Opinion] Before depositing its instrument of accession, any State which is not a member of the Union or any intergovernmental organisation shall request the opinion of the Council on the conformity of its legislation with the provisions of this Convention. If the decision making an opinion is positive, the instrument of accession may be deposited.
ARTICLE 35. RESERVATIONS. C-1051-12 >
1) [Principle] Subject to paragraph (2), no reservation shall be permitted to this Convention.
2) [Possible Exception] a) Notwithstanding the provisions of Article 3.1), any State that, at the time it is a party to this Convention, is In the 1978 Act and which, in respect of varieties multiplied by vegetative means, provides for the protection in the form of an industrial property title other than a breeder's right, it shall have the power to continue to prevent it without apply this Convention to such varieties.
b) Any State that makes use of this faculty shall notify the Secretary-General of this fact at the time he deposits his instrument of ratification, acceptance, approval or accession to this Convention. This State may withdraw such notification at any time.
1) [Initial Notification] At the time of the deposit of its instrument of ratification, acceptance, approval or accession to this Convention, each State or intergovernmental organization shall notify the Secretary-General
i) legislation regulating the rights of breeder, and
(ii) the list of the genera and plant species to which it applies the provisions of this Convention on the date on which it is bound by it.
2) [Notification of modifications] Each Contracting Party shall notify the Secretary-General without delay
i) any modification of its legislation regulating the rights of the breeder, and
(ii) any extension of the application of this Convention to other plants and plant species.
3) [Publication of information] On the basis of the communications received from the Contracting Party concerned, the Secretary-General shall publish information on
i) legislation regulating the rights of breeder and any modification of that legislation, and
(ii) the list of the genera and plant species referred to in paragraph (1) (ii) and any extension referred to in paragraph (2) (ii)
ARTICLE 37. ENTRY INTO FORCE; IMPOSSIBILITY OF ACCESSION TO PREVIOUS MINUTES. C-1051-12 >
1) [Initial entry into force] This Convention shall enter into force one month after five States have deposited their instruments of ratification, acceptance, approval or accession, subject to three at least of these instruments have been deposited by States party to the Act of 1961/1972 or the Act of 1978.
2) [Subsequent Entry into Force] Any State not affected by paragraph 1), or intergovernmental organization, shall be bound by this Convention one month after the date on which that State or organisation deposits its instrument of ratification, acceptance, approval or accession.
3) [Impossibility of Accession to the Act of 1978]instrument of accession to the Act of 1978 may be deposited after the entry into force of this Convention in accordance with the provisions of paragraph 1. However, any State which, in accordance with the practice of the United Nations General Assembly, is regarded as a developing country, may deposit such an instrument until 31 December 1995, and any other State may deposit such an instrument. until 31 December 1993, even if this Convention enters into force before that date.
ARTICLE 38. CONVENTION REVIEW. C-1051-12 >
1) [Conference] This Convention may be reviewed by a Conference of Union Members. The convening of such a Conference shall be decided by the Council.
2) [Quorum and Majority] The conference will only be validly deliberated if at least half of the Member States of the Union are represented. To be adopted, a revised text of the Convention should have a majority of three quarters of the present Union Member States and voters.
ARTICLE 39. REPORTING OF THE CONVENTION. C-1051-12 >
1) [Notifications] Any Contracting Party may denounce this Convention by means of a notification addressed to the Secretary-General. The Secretary-General shall notify without delay the receipt of this notification to all members of the Union.
2) [Previous Acts] Notification of the denunciation of this Convention shall also be deemed to constitute a notification of the denunciation of any previous Act by which the Contracting Party was obliged to to denounce this Convention.
3) [Effective Date] The complaint shall take effect at the expiration of the calendar year following the year in which the notification was received by the Secretary-General.
4) [Acquired Rights] The complaint shall in no way affect the acquired rights, in respect of a variety, under this Convention or an earlier Act before the date on which the denunciation.
ARTICLE 40. MAINTENANCE OF ACQUIRED RIGHTS. C-1051-12 >
This Convention shall not in any way affect the rights of breeder acquired under the laws of the Contracting Parties or under an earlier Act, or resulting from agreements, other than this Convention, between members of the Union.
ARTICLE 41. ORIGINAL AND OFFICIAL TEXTS OF THE CONVENTION. C-1051-12 >
1) [Original] This Convention shall be signed in an original copy in the German, French and English languages, the French text being considered authentic in case of divergence between the texts. That copy shall be deposited with the Secretary-General.
2) [Official Texts] After consultation with the Governments of the States and the intergovernmental organizations concerned, the Secretary-General shall establish official texts of this Convention in the Spanish languages, Arabic, Italian, Japanese and Dutch, and in the other languages that the Council may designate.
ARTICLE 42. DEPOSITORY FUNCTIONS. C-1051-12 >
1) [Copy Transmission] The Secretary-General shall transmit certified copies of this Convention to the States and intergovernmental organizations that have been represented at the Conference A diplomat who has adopted it and, on request, any other State or intergovernmental organisation.
2) [Registration] The Secretary-General shall register this Convention with the Secretariat of the United Nations.
Certificor that the text preceding it is a faithful copy of the official Spanish text of the International Convention for the Protection of Vegetable Varieties of 2 December 1961, revised in Geneva on 10 November 1972, on 23 October. 1978 and 19 March 1991.
The undersigned Coordinator of the Internal Legal Affairs Directorate of the International Legal Affairs Directorate of the Ministry of Foreign Affairs,
CERTIFIES:
What, the reproduction of the text above is a faithful and complete copy of the copy that is based on the file of the Internal Working Group of the Treaties of the International Legal Affairs Directorate of the text of the " Convention International for the Protection of Vegetable Varieties ", of 2 December 1961, revised in Geneva on 10 November 1972, 23 October 1978 and 19 March 1991.
Dada in Bogotá, D. C., at twenty-five (25) days of the month of November of two thousand eleven (2011).
The Coordinator of the Internal Working Group of the Treaties Directorate of International Legal Affairs,
Alejandra Valencia Gartner.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., November 30, 2011
Authorized. Submit to consideration by the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
ARTICLE 1o. C-1051-12 > Approve the "International Convention for the Protection of Vegetable Varieties", dated 2 December 1961, revised in Geneva on 10 November 1972, the October 23, 1978 and March 19, 1991.
ARTICLE 2o. C-1051-12 > In accordance with the provisions of Article 1 of Law 7ª of 1944, the "International Convention for the Protection of Plant Varieties", of December 2 The Council of the European Communities, which was revised in Geneva on 10 November 1972, on 23 October 1978 and on 19 March 1991, which, under Article 1 of this Law, is adopted, will oblige the country from the date on which the international link is improved. same,
ARTICLE 3o. C-1051-12 > This law governs from the date of its publication.
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs and the Minister of Agriculture and Rural Development.
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Agriculture and Rural Development,
JUAN CAMILO RESTREPO SALAZAR.
Honorable Senators and Representatives to the Congress of the Republic of Colombia.
On behalf of the National Government, and in compliance with articles 150 numeral 16, 189 numeral 2 and 224 of the Political Constitution, we present to the honorable Congress of the Republic, the bill through which the " International Convention for The Protection of Plant Varieties ", Dated 2 December 1961, revised in Geneva on 10 of November 1972, 23 October 1978 and 19 March 1991.
El Tiempo] However, the ratification of the agreement, which was particularly important with the approval on 12 October of the Trade Promotion Agreement signed between the Republic of Colombia and the United States of America in Washington since 22 December, has been approved by the United States. November 2006, and approved by law of the Republic of Colombia number 1143 of 2007, by the legislative apparatus of the latter country, which causes the obligation to accede to the International Convention for the Protection of The Vegetable Varieties in their 19911 Act, as set out in Article 16.1.3 literal c) of the Intellectual Property chapter of the said Agreement2, it is also important to make some comments that will make it possible to understand the true scope of the protection system for obtaining plant varieties contained in this version 91 of the International Union for the Protection of Plant Varieties, UPOV.
It is important to indicate that the law that we are proposing has a close relationship with the agricultural sector, specifically regarding the need and convenience of protecting the rights of breeders of new plant varieties. These are linked to one of the essential purposes of the economic policy of the current administration, such as the modernization of the productive apparatus within the process of opening up and internationalizing the economy. The new conditions governing the international technological order impose on the country the adequacy of its infrastructure, human resource and internal legislation, in order to ensure that the agricultural sector has access to global technological advances, the time it generates endogenous science and technology.
The legislation on the protection of plant variety rights in Colombia is based on the 1993 Decision 345 issued by the Commission of the Cartagena Agreement, which creates a system of sui generis protection of plant varieties such as the only way to grant intellectual property rights for plant varieties.
The right of breeder is a form of intellectual property that is recognized by the creators of new plant varieties in order to allow them an exclusive exploitation of their creation for a certain time. The right of breeder has certain characteristics in common with some other forms of intellectual property but nevertheless, it also has unique and particular characteristics in order to adapt it especially to the object of protection: The varieties plants.
1 Colombia is part of UPOV, but the 1978 Act of the UPOV is in force.
2 Each party shall ratify or adhere to the following agreements until January 1, 2008, or the entry into force of this Agreement, whichever is later: (c) the International Convention for the Protection of Plants (Convention) UPOV 1991).
So we can say that, like a patent, the right of breeder grants to its holder the exclusive right of exploitation of its protected variety. In the same way, like a copyright or related right, the reproduction of the plant variety is subject to the authorization of the holder. However, the breeder's right also has particular features, which make it especially designed to protect plant varieties. The right of breeder is therefore a sui generis form of protection for plant varieties.
The protection of plant variety rights provided for in the International Convention for the Protection of Plants ("the UPOV Convention") is par excellence a form of sui generis protection. The UPOV Convention has harmonised rules for the granting of a special form of protection specifically adapted to the improvement of plant varieties and the way they are exploited in agriculture.
The first Act of the UPOV Convention was signed in 1961, and while there were amendments in 1972 and 1978, we can say that it was substantially amended for the first time in 1991. If the Convention worked satisfactorily, why was it necessary to amend it? 20. When it was established, the Convention created certain concepts that were new to intellectual property. In 1991, an experience of nearly 30 years had been acquired in the implementation of these principles and the Member States were aware that some improvements could be made. In 1953 the discovery of the structure of the DNA molecule was announced. During the period from 1961 to 1991, scientific discoveries and technological advances took place that had profound implications for the improvement of plant species and the protection of varieties. plants. All the changes made in 1991 were related to problems identified through the experience accumulated or derived from scientific and technical progress.
Decision 345 of 1993 followed the guidelines of the UPOV (International Union for the Protection of Vegetable Varieties) Convention, especially those of the 1991 Act. For this reason, while it is true that Colombia is not part of the UPOV Convention of 1991, it is also true that our country, by virtue of Decision 345 of 1993, adopted a wider protection for the breeder than that enshrined in the UPOV Convention 1978.
Decree 533 of March 8, 1994, "for which the Common Regime for the Protection of the Rights of the Vegetable Breeders is regulated", designated the Colombian Agricultural Institute, ICA, as the national competent authority to carry the National of Protected Plant Varieties, determining the functions to be developed. Then, by means of Law 243 of December 28, 1995, Colombia approved the International Convention for the Protection of Vegetable Varieties, UPOV of 2 December 1961, revised in Geneva on November 1972 and October 23, 1978. Colombia deposited the instrument of accession on 13 August 1996 and entered into force on 13 September 1996. In this way, Colombia was established in the 31 Member Country of the Union.
Currently, 70 countries are part of the UPOV Convention in their different Acts (1961, 1972, 1978 and 1991). It is worth mentioning that the vast majority of the member countries of the UPOV Convention have established, like Colombia, an intellectual protection for plant varieties under the exclusive special mechanism or sui generis of protection. called Plant Breeder Certificate.
Recently, by issuing Decree 2687 of 19 November 2002, Colombia increased the terms of protection set out in Decree 533 of 1994, which is why, from that moment on, the protection granted is 25 years for vines and trees and 20 years for other species, counted from the grant of the breeder certificate.
1. Project rule analysis
The Convention establishes for UPOV member countries:
a) Standard rules for granting protection: novelty, distinction, homogeneity and stability for granting protection;
b) The minimum scope of protection;
c) Varieties covered by the breeder right;
d) The minimum duration of protection and standard rules for cancellation or cancellation of protection;
e) The minimum quantity of genera and plant species whose varieties must be protected;
f) The rules on national treatment and the priority that govern relations between member countries and provide the basis for cooperation.
For clarity, we will make a comparison of the current standard and the one that is intended to be introduced with this bill, as follows:
a) The standard rules for granting protection: novelty, distinction, homogeneity and stability for granting protection.
The rules on novelty, distinction, homogeneity and stability worked well in practice; in 1991, some technical adjustments were made to the relevant texts, but there was no need for major changes.
About novelty
| 1978 | 1991 | Decision 345 of 1993 | |||
| the date of filing of the protection application in a Union Country, the variety (i) must not have been offered for sale or marketed, with the consent of the breeder, in the territory of that country-or, if the legislation of that country provides for it, not having been for more than one year-and (ii) must not have been offered for sale or marketed, in the territory of any other country, with the consent of the breeder, for a period of more than six years years in the case of vines, forest trees, fruit trees and ornamental trees, including, in each case, their rootstock, or for an earlier period of more than four years in the case of other plants. | The variety shall be considered new if, at the date of submission of the application for the breeder's right, the propagating or propagating material vegetative or a crop product of the variety has not been sold or delivered to third parties another way, by the breeder or with his consent, for the purposes of the exploitation of the variety (i) in the territory of the Contracting Party in which the application was lodged, more than one year before that date, and (ii) in a territory other than that of the Contracting Party in which the application was submitted, more than four years or, in the case of trees and vines, more than six years before that date. | The variety will be considered new if the propagating material or vegetative propagation material or a harvest product has not been sold or otherwise provided to third parties, by the breeder or his or her successor, or with their consent, for commercial exploitation of the variety. The novelty is lost if the following terms are exceeded: (a) the holding has commenced at least one year before the date of filing of the application, if the sale or delivery has been effected within the territory of any member country of the Andean community, and (b) where the holding has commenced at least four years before or, in the case of trees and vines, at least six years before the date of submission of the application, if the sale or delivery had taken place in a territory other than any member country of the Andean community. |
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Regarding the distinction
| 1978 | 1991 | Decision 345 of 1993 | |||
| consider the variety to be different if it is clearly distinguished from any other variety whose existence, at the date of filing of the application, is known to be known. In particular, the deposit, in any country, of an application for the granting of a breeder's right for another variety or registration of another variety in an official register of varieties, shall be deemed to make this other variety notoriously known from the date of the application, if it leads to the granting of the breeder's right or to the registration of that other variety in the official register of varieties, as the case may be. | A variety will be considered distinct, if clearly distinct from any other whose existence, was commonly known, to the filing date of the application, or of the claimed priority. The presentation in any country, of an application for the granting of the breeder certificate or for the registration of the variety in an official register of cultivars, will make known such variety from that date, if such an act lead to the award of the certificate or the registration of the variety, as the case may be. |
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About homogeneity
| 1978 | 1991 | Decision 345 of 1993 | |||
| The variety must be sufficiently homogeneous, taking into account the particularities of its sexued reproduction or its multiplication. vegetative. | The variety shall be considered homogeneous if it is sufficiently uniform in its relevant characters, subject to the foreseeable variation taking into account the particularities of its sexuated reproduction or vegetative propagation. | A variety shall be considered homogeneous if it is sufficiently uniform in its essential characters, taking into account foreseeable variations according to its form of reproduction, multiplication or propagation. | |||
About Stability
| 1978 | 1991 | Decision 345 of 1993 | |||
| The variety must be stable in its essential characters, that is, it must remain in accordance with its definition after reproductions or successive multiplications or, where the breeder has defined a particular cycle of reproductions or multiplications, at the end of each cycle. | The variety will be considered stable if its characters they remain unchanged after repeated reproductions or multiplications or, in the case of a particular cycle of reproductions or multiplications, at the end of each cycle. | A variety will be considered stable if its essential characters remain unchanged from generation to generation and at the end of each particular cycle of reproductions, multiplications, or propagations. | |||
b) The minimum scope of protection
The 1978 and 1991 versions of the Convention specify acts in respect of propagating or propagating material, i.e. seed or plant material of a protected variety for which the prior authorisation of the breeder is required. The acts are as follows:
| 1978 | 1991 | Decision 345 of 1993 | |||
| for commercial purposes. The put up for sale. Marketing. | Production or playback (multiplication) Preparing for the purposes of reproduction or multiplication The offering for sale The sale or any other form of marketing The export The import Possession for any of the purposes mentioned above. | Production, reproduction, multiplication, or propagation. Preparing for playback, multiplication, or propagation purposes The offering for sale The sale or any other act involving the market introduction. The export The import Possession for any of the purposes mentioned above. |
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It is clear that although the 1991 Act specifies the commercial acts which require the approval of the breeder in greater detail, the substantive difference between the two Acts is limited. In practice, exports and imports can rarely take place independently of the sale or the marketing. The increased accuracy of the 1991 Act and Decision 345 is intended to facilitate the exercise of the rights of the breeder in practice and at an initial stage on the loading dock, for example, in the case of import or export, or in a warehouse, in the case of possession. However, substantial changes were made in relation to production.
By virtue of the minimum scope of the protection of the Act of 1978, only the approval of the breeder for "production for commercial purposes" was required. If the production was not intended for commercial purposes, it was outside the scope of the breeder's right. Consequently, if seed was produced on a farm for the purposes of the resent on the same estate instead of being used for the purposes of selling the seed, the production was outside the scope of the breeder's right. This had the effect of creating the so-called "farmer's privilege", the possibility that farmers would plant the seed on their own farms free of any obligation to the breeder of the variety. It must be said that in the 1978 Act, this freedom only arose implicitly, as a result of the minimum scope of protection of the 1978 Act, which was limited. There is no express mention of the concept in the 1978 Act. Some Member States of the UPOV decided to grant a scope of protection covering all 'production ', without the limitation to' production for commercial purposes ', and in this case there was no legal basis for any of the farmer.
A problem that raised the wording of the minimum scope of protection of the 1978 Act was that it not only applied to crops where farmers had the habit of keeping the seed, for example, the cereals of self-pollination such as rice and wheat, but also fruit trees, plantation crops and ornamental plants. If a fruit tree breeder sold a tree to a grower, the grower could use that tree to reproduce numerous hectares of crops that would produce fruit for many years, while the breeder would have been rewarded for the sale of a single tree. Technological advances made this type of problem worse. Modern tissue culture techniques make it much easier to quickly increase the supply of numerous plant varieties. Consequently, in the 1991 review, the right of the breeder was extended in relation to the production of propagating or propagating material which referred to "production for commercial purposes" until it covers all "production". If this were all, the farmers would cease to enjoy the freedom to preserve seed of crops in cases where it is a common practice, which would be unacceptable to virtually all the UPOV member countries. Consequently, Article 15(2) of the 1991 Act contains an optional derogation allowing countries to exclude farm seed from the scope of the breeder's right and to adopt solutions on the matter. which are specifically adapted to the circumstances of their national agriculture. Virtually all the countries that have acceded to the 1991 Act have adopted the farmer's privilege in one way or another.
In this respect, Decision 345 provides that in Article 26 it states that: Do not injure the right of breeder who reserves and sows for its own use, or sells as raw material or food the product obtained from the cultivation of the variety protected. The commercial use of propagating, propagating or propagating material, including whole plants and parts thereof, of fruit, ornamental and forestry species, is exempted from this Article.
In 1961, when the UPOV Convention was established, it was discussed whether the right of the breeder should be extended beyond the propagating or propagating material to cover the material resulting from the cultivation of the reproductive material or multiplication and the product of the resulting crop. It was recognised that, in some cases, it was difficult for the breeder to be duly rewarded in the absence of such a right. The Member States, aware that the product of the harvest is often an element of food resources, were not prepared to require countries to extend the right of the breeder to cover the final product of the product. variety in a mandatory manner. However, they expressly disputed in Article 5(4) of the Act of 1961 that Member States should be free to grant a wider right to breeders in their national legislations " which could be particularly extended to the marketed product. "
A few countries took advantage of this freedom to extend the breeder's right to cover the final product in the case of some species. However, the absence of such an extension as part of the minimum scope of protection created a problem for many breeders. Material of a variety could be carried from country A, where it was protected, to country B, where it was not protected, and could be used in that country to produce a final product, for example, cut flowers, which were exported to country A. Final product was outside the scope of the breeder's right, the breeder could do nothing to prevent this practice. The result was that not only was the breeder not awarded, but the growers of country A and other countries where the variety was protected were facing unfair competition from growers who hacked the variety in country B.
In the 1991 review, the UPOV member countries recognized the need for the breeders to take action in the circumstances described above, but they were not yet ready to grant an unconditional right to the breeder is exercisable in relation to acts relating to the product of the harvest. The situation regarding the product of the harvest under the two Acts is as follows:
| 1978 | 1991 | Decision 345 of 1993 | |||
| have the option to extend the protection to the product of the harvest in their national legislations. | The breeder right is extended to the crop product, i) If the product of the harvest has been obtained by unauthorized use of propagating or propagating material, (ii) If the breeder has not been able to reasonably exercise his or her right in relation to the reproductive material or multiplication. | The breeder right is extended to the crop product, i) If the product of the harvest has been obtained by unauthorized use of propagating or propagating material, and (ii) if the breeder has not been able to reasonably exercise his/her right in relation to the reproductive material or multiplication. |
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The 1991 Act and Decision 345 therefore provide the breeder with an exercisable right to the product of the harvest, but only to the extent necessary to address the problems that had arisen in practice.
Under the 1978 Act, the right of breeder was extended to the protected variety and, consequently, to any variety which could not be clearly distinguished from the protected variety. It was also extended to any variety commercially produced by repeated use of the protected variety (i.e. any hybrid F1 produced using the protected variety as a parent). Under the 1991 Act, the right of breeder is extended to cover the "essentially derived" varieties of the protected variety this is also covered by Decision 345.
c) Varieties covered by the breeder right
| 1978 | 1991 | Decision 345 of 1993 | |||
| The protected variety As a consequence, any variety that is not clearly distinguished from the protected variety. Varieties whose production requires repeated use of the protected variety. | The variety Expressly, any variety that is not clearly distinguished from the protected variety. Varieties whose production requires repeated use of the protected variety. Essentially derived varieties. | The variety Expressly, any variety that is not clearly distinguished from the protected variety. Varieties whose production requires repeated use of the protected variety. Essentially derived varieties. |
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The Acts of 1978 and 1991 specify certain mandatory exceptions to the right of the breeder as follows:
| 1978 | 1991 | Decision 345 of 1993 | |||
| The use of the protected variety as an initial source of variation with a view to the creation of other varieties and the marketing of ("Exemption from the breeder") | The acts performed for the purpose of creating new varieties and the acts performed for the placing on the market of such varieties (except where they are varieties ("Exemption from the breeder") Acts carried out on an experimental basis. Acts performed on a private framework for non-commercial purposes. | In the private domain for non-commercial purposes. For experimental purposes for the production and exploitation of a new variety, except for a variety essentially derived from a protected variety. | |||
Under the 1978 Act, who obtains a variety developed by exercising the so-called breeder's exception and using a protected variety as the initial origin of the variation could protect and market it freely as long as clearly distinguished from the initial variety. In practice this meant that a relatively small change could be made or discovered, for example, a mutation in an existing variety, and that the modified variety could then be protected, as long as it was distinguished clearly of the initial variety. This situation represented a problem for some breeders, in particular for the breeders of ornamental plants, but most of the breeders tolerated it, as excessive confidence in minor changes made to them Existing varieties do not constitute an effective competitive approach to plant improvement.
The arrival of genetic engineering threatened to change the situation. While in order to develop new varieties of most of the species that are truly innovative, ten to fifteen years or more are needed, genetic engineering offered the possibility of modifying the varieties of most of the species in the laboratory in a matter of months adding one or more genes. As long as the modified varieties are clearly distinguished from the initial variety, they may be protected by virtue of the provisions of the 1978 Act without any recognition of the breeder's contribution to the initial variety in respect of the final result. Clearly, it would not be worth using long years and resources to develop really new varieties if a third party could appropriate them in this way. The apparent interaction of the patent system with the plant variety protection system where the gene in question was the subject of patent protection aggravated the situation. It would appear that, in numerous cases, if the breeder of the initial variety had added the patented gene to its own variety, the resulting modified variety would fall within the claims of the patent and the breeder of the initial variety. the modified variety could be exploited. Moreover, if the genetic engineer added the patented gene to the initial variety, it could protect and exploit the modified variety without any obligation to the breeder of the initial variety. The situation was unbalanced and unfair.
This situation posed a challenge to policymakers, who were aware that the class of improvements created by classic plant improvement activities was often the result of numerous genes that were related to each other in a complex way, while the class of improvements obtained by genetic engineers was usually based on one or a few genes. In order to optimize the improvement of the varieties, it was necessary to modify the intellectual property system to promote both types of activity.
The outcome of the ensuing policy debate was the inclusion in the 1991 Act of the essentially derived variety concept. Under this concept, if a variety is derived essentially from another variety, the initial variety may continue to be protected if it is new, distinct, homogeneous and stable, but may not be exploited without the authorization of the holder of the variety initial variety while the initial variety remains protected. In this way, the balance between the system of protection of plant varieties and the patent system is restored and a new framework is in place within which cooperation between those with interests in plant improvement is encouraged and who have interests in the new technology of genetic engineering.
d) Minimum protection duration and standard rules for cancellation or cancellation of protection
No major changes were made to the standard rules for the cancellation and cancellation of protection. However, the rules for the minimum duration of protection were modified as follows:
| Act | 1991 Act | Decision 345 of 1993 | |
| Trees and vines | 18 years | 25 years | 20-25 years |
| Other sites | 15 years | 20 years | 15-20 years |
Colombia by Decree 2687 of 19 November 2002 increased terms of protection of plant varieties and consequently has established the minimum terms of protection under the UPOV Convention 1991, the new terms are: 25 years for vines and trees and 20 for other species.
e) The minimum number of genera and plant species whose varieties should be protected
The 1991 Act requires the granting of protection for plant varieties of all genera and plant species, as is the case for Decision 345.
The situation under the Acts of 1978, 1991 and Decision 345 is as follows:
| 1978 | 1991 | Decision 345 of 1993 | |||
| must protect the "largest number of genera and species". | Must protect a minimum of 15 genera or species at the time of adhesion. | Must protect all genera and botanical species whenever their cultivation, possession or use are not prohibited for reasons of human, animal or plant health. | |||
| Must protect a minimum of five genera and plant species at the time of accession to the 1978 Act, increasing to 24 within eight years. years. | Must protect all genera and plant species ten years after accession to the 1991 Act. | ||||
f) Standard rules for national treatment and priority
Member countries are required to offer national treatment to nationals and persons who have their residence in other Member States of the UPOV. Under the 1978 Act, Member States were allowed to limit the protection for any species determined to other Member States which offered protection for the same species. This mutual limitation does not appear in the 1991 Act.
The minutes of 1978 and 1991 provide for a right of priority based on an earlier application for the same variety carried out in another Member State of the UPOV, that is to say that a subsequent application is treated as if it had been submitted on the date of the Previous application. This can have important consequences for the application of the rules of novelty and the distinction in the granting of protection.
2. Advantages of being a member of the UPOV
There are many advantages that we have of belonging to UPOV, among others, the following can be highlighted:
By belonging to UPOV Colombia, it is recognized as having a system of Obtentor Law that is in conformity with the Convention, that is, according to internationally recognized principles.
Being a member of the UPOV provides the possibility for national or registered breeders in a member country to protect their varieties in any of the other member countries, receiving the same treatment as these countries offer their own and subject only to a principle of reciprocity. In this way, a breeder can cope with higher investments in plant breeding, because it has the possibility to recover it by exploiting its variety in a market much larger than the local one.
Being a member of the UPOV helps Member States to benefit from the experience and knowledge acquired by the other Member States in the implementation of the Convention. It is common practice to consult specialists from different offices as well as the discussion in the Working Groups of the Technical Committee, of situations raised by new technologies applied to plant improvement.
Any member country has the possibility to participate in the evolution and future development of the system of law of the Obtentor, to make proposals and to issue its opinion during the sessions of the Council of the UPOV, being able, if necessary, to exercise their right to vote.
The ADPIC Agreement resulting from the Uruguay Round provides that its contracting parties must provide protection for plant varieties by means of patents, by means of a "sui generis" system or by a combination of both. The UPOV Convention provides a model accepted by the international community as an effective "sui generis" system, so Colombia complies with the TRIPS agreement to have a sui generis system to protect plant varieties ...
The repercussions of Colombia's accession to the UPOV 1991 Act among others would be as follows:
-Greater international image and greater reliability in agricultural markets on agricultural products from Colombia.
-Greater reciprocity for Colombian breeders who transfer biotechnology to the outside world.
-Higher levels of protection for domestic and foreign breeders in the national territory.
-Not only the possibility of prohibiting third parties without authorisation from placing on the market with the propagating, propagating or propagating material of the plant variety but also mandatory protection shall be established as a minimum protection. with the product of the harvest.
-It would be established as optional protection to prohibit third parties without authorization from marketing products manufactured from the product of the harvest.
-The extension of the rights to varieties essentially derived from the protected variety would be established, unless this is in turn essentially derived.
-The extension of rights to varieties that do not clearly differ from the protected variety would be established.
-The farmer's exception would be established as optional.
-Includes interim protection during registration processing.
3. Conclusions
The Colombian State currently contemplates mechanisms within the existing legislation to protect the rights of breeders of plant varieties and to exercise actions that allow it to prevent the piracy of seeds. The latest scientific and technological advances which had profound implications for the improvement of plant species and the protection of plant varieties led to the revision of the UPOV Convention 1978 and is as well as all changes. In 1991, they were related to problems identified through the experience accumulated or derived from scientific and technical progress.
Colombia must continue to protect the breeders of plant varieties through the sui generis system of the Certificate of Plant Breeder, according to the special rules contained in the UPOV Convention Act of 1991, in accordance with the Decision 345 1993, a decision which, I must say, is the one that makes it possible to point out that Colombia is fully compliant with other international commitments, such as those related to the WTO. The accession of Colombia to the UPOV 1991 Convention would bring undeniable benefits to the breeders, which would undoubtedly result in a greater transfer of technology to Colombia, reflected in a greater number of varieties within the scope of our farmers.
These are sufficient reasons to ask the Congress of the Republic for the approval of the bill that is being considered, a project that will make it possible to advance the protection of plant varieties, without leaving aside the balance and The final benefit to be reported to the Colombian agro and to the peasants of this country.
Of the honorable Congressmen,
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Agriculture and Rural Development,
JUAN CAMILO RESTREPO SALAZAR.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., November 30, 2011
Authorized. Submit to consideration by the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
ARTICLE 1o. Approve the "International Convention for the Protection of Plant Varieties", dated December 2, 1961, revised in Geneva on November 10, 1972, on 23 of October 1978 and 19 March 1991.
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "International Convention for the Protection of Plant Varieties", Dated December 2, 1961, as revised in Geneva on 10 November 1972, on 23 October 1978 and on 19 March 1991, which, under Article 1 of this Law, is adopted, will oblige the country from the date on which the international link is improved in respect of the same,
ARTICLE 3o. This law governs from the date of its publication.
The President of the honorable Senate of the Republic,
JUAN MANUEL CORZO ROMAN.
The Secretary General of the honorable Senate of the Republic,
EMILIO RAMON OTERO DAJUD.
The President of the honorable House of Representatives,
SIMON GAVIRIA MUNOZ.
The Secretary General of the honorable House of Representatives,
JESUS ALFONSO RODRIGUEZ CAMARGO.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon review of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada in Cartagena de Indias, D. T. and C., on April 13, 2012.
JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Agriculture and Rural Development,
JUAN CAMILO RESTREPO SALAZAR.
1998 424 LAW
(January 13)
by which the international conventions signed by Colombia are ordered to follow.
The Congress of Colombia
DECRETA:
Item 1or. The National Government through the Foreign Ministry will submit annually to the Senate and Senate Foreign Relations Committees, and within the first thirty days of the legislative period, which begins every 20 years. July, a detailed report on how the existing International Conventions signed by Colombia with other States are being complied with and developed.
Article 2or. Each dependency of the national government responsible for implementing the International Treaties of its competence and requiring reciprocity in them, will transfer the relevant information to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs. Second.
Item 3or. The full text of this law will be incorporated as an annex to each and every International Convention that the Ministry of Foreign Affairs presents to the Congress.
Article 4or. This law governs from its promulgation.
The President of the honorable Senate of the Republic,
AMYLKAR ACOSTA MEDINA.
The Secretary General of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The President of the honorable House of Representatives,
CARLOS SQUIRLA BALLESTEROS.
The Secretary General of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
COLOMBIA-NATIONAL GOVERNMENT
Publish and execute.
Dada en Santa Fe de Bogota, D. C., on January 13, 1998.
ERNESTO SAMPER PIZANO
The Foreign Minister,
MARIA EMMA MEJIA VELEZ.
