What are the exclusive “rights” of the breeder?
Under the UPOV 1991 Convention, if a breeder satisfies all the conditions for protection for their new plant variety, they are granted exclusive rights to do the following acts in respect of the propagating material of that protected variety:
(i) production or reproduction (multiplication),
(ii) conditioning for the purpose of propagation,
(iii) offering for sale,
(iv) selling or other marketing,
(vii) stocking for any of the purposes mentioned in (i) to (vi), above.
All these acts are usually associated with sale of the plant variety, or preparation of propagating material for the purpose of sale. The breeder can also enter into licencing agreements with other parties (e.g. seed growers) to authorize (conditionally or unconditionally) some or all of the acts contained in (i) to (vii). In situations where there was an “unauthorized use” of propagating material (e.g. seed) of a protected variety, and the breeder did not have a reasonable opportunity to exercise his/her rights, the breeder’s right is extended to the harvested material of the variety (e.g. grain or fruit). Under the UPOV 1991 Convention, the exclusive rights of the breeder are enforceable for up to 20 years for all plant species, except trees and vines which are 25 years. Of course, a breeder can surrender rights at any time if he/she no longer wishes to have intellectual property protection on the variety.