Criteria for Protection
For a plant variety to be eligible for protection there are some basic criteria that the breeder must meet. These four fundamental criteria are applied consistently across all UPOV member countries and organizations. According to the 1991 Act of the UPOV Convention, the breeder’s right shall be granted where the variety is:
(iii) uniform and
Newness or novelty: In order for a variety to be considered “new”, the propagating or harvested material of that variety cannot have been sold in the country of filing for over 1 year. Additionally, the propagating or harvested material of that variety cannot have been sold in another UPOV member country for over 6 years in the case of trees and vines, and 4 years for all other plant species. A specified time limit is set for seeking protection in various UPOV member countries so the breeder does not prolong the length of time he/she can benefit from protection beyond a reasonable time frame by delaying protection in various countries. Also, the difference in set time frames, 4 years for all plant species except trees and vines which are 6 years, acknowledges the slower growth and multiplication of these types of plants.
Distinctness: Another condition of protection is that the applicant must demonstrate that the variety is “distinct”, meaning it must be clearly distinguishable from all other varieties of common knowledge at the time of filing the application. In order to establish “distinctness” of a plant variety it is usually necessary to carry out various tests whereby the candidate variety seeking protection is grown along with other similar reference varieties for comparative purposes. In order to establish that the candidate variety is in fact “distinct” it must differ from the other varieties in at least one “clearly distinguishable” characteristic. The characteristic(s) of interest used to establish distinctness can be either qualitative (observable) or quantitative (measurable) in nature. It is important to emphasize, it must be shown that the candidate variety differs from other varieties by at least one clearly distinguishable characteristic in order to meet the criteria of being “distinct”. The UPOV Office provides guidance on how “distinctiveness” can be assessed based on phenotypic/morphological characteristics for various plant species and crop kinds:
Uniformity: The plant variety seeking protection must also be deemed to be “uniform” (or sufficiently uniform in its relevant characteristics) in order to be eligible for protection. This means that propagating material of the variety must be homogeneous in appearance, and if there is variation in the expression of characteristics or off-types, the occurrences must be within acceptable tolerances/standards for that particular species or crop kind. The UPOV Office provides guidance on the acceptable tolerances for variances in the expression of characteristics or presence of off-types, based on the specific plant species or crop kind being assessed.
Stability: The plant variety must remain stable in its relevant characteristics so that it remains unchanged after repeated cycles of propagation.