U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–118

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–17

CONVENTION FOR THE PROTECTION OF PLANTS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF

NEW VARIETIES OF PLANTS OF DECEMBER 2, 1961, AS REVISED

AT GENEVA ON NOVEMBER 10, 1972, ON OCTOBER 23, 1978, AND

ON MARCH 19, 1991, AND SIGNED BY THE UNITED STATES ON

OCTOBER 25, 1991.

SEPTEMBER 5, 1995.—Treaty was read the first time and, together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate.

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, September 5, 1995.

To the Senate of the United States:

I transmit herewith for Senate advice and consent to ratification

the International Convention for the Protection of New Varieties of

Plants of December 2, 1961, as Revised at Geneva on November 10,

1972, on October 23, 1978, and on March 19, 1991, and signed by

the United States on October 25, 1991 (hereinafter ‘‘the 1991 Act

of the UPOV Convention’’). I transmit for the information of the

Senate, the report of the Department of State with respect to the

Convention.

Ratification of the Convention is in the best interests of the United States. It demonstrates a domestic commitment to effective protection for intellectual property in the important field of plant

breeding. It is also consistent with United States foreign policy of

encouraging other countries to provide adequate and effective intellectual property protection, including that for plant varieties.

I recommend, therefore, that the Senate give early and favorable

consideration to the 1991 Act of the UPOV Convention and give its

advice and consent to ratification subject to a reservation under Article 35(2), which allows parties to the existing Convention (the

1978 Act) to retain their present patent systems for certain varieties of plants.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, May 10, 1995.

The PRESIDENT, The White House.

I have the honor to submit to you the International Convention for the Protection of New Varieties of Plants of December 2, 1961,

as revised at Geneva on November 10, 1972, on October 23, 1978

and on March 19, 1991, and signed by the United States on October 25, 1991 (hereinafter ‘‘the 1991 Act of the UPOV Convention’’).

I recommend that the 1991 Act of the UPOV Convention be transmitted to the Senate for its advice and consent to ratification, subject to a reservation under Article 35(2) of the 1991 Act, which allows states party to the 1978 Act to retain their present patent systems for certain varieties of plants.

The United States is a party to the 1978 Act of the International Convention for the Protection of New Varieties of Plants (33 UST

2703; TIAS 10199), which was concluded on October 23, 1978, and

entered into force on November 8, 1981. That Act was the second

revision of the original Act, which was done on December 2, 1961

and amended on November 10, 1972, and which established the

International Union for the Protection of New Varieties of Plants.

Member States of the Convention constitute the International

Union for the Protection of New Varieties of Plants (the UPOV

Union), whose objective is to promote the protection of the rights

of plant breeders in new plant varieties. At present, the UPOV

Union is composed of 27 member States. Apart from two States

(Belgium and Spain) that have adhered only to the 1961 Act, as revised in 1972, all other member States are presently bound by the

1978 Act of the UPOV Convention. The 1991 Act is not yet in force.

Several considerations prompted the member States to revise the

Convention at a Diplomatic Conference held in Geneva, Switzerland in March of 1991. Those considerations were: 1) recognition

that the protection offered to breeders under previous Acts of the

Convention was not adequate; 2) the need for the Convention to reflect technological changes in the breeding of new plant varieties;

and 3) the need to clarify certain provisions of the 1978 Act.

Ten member States of UPOV signed the 1991 Act at the conclusion of the Conference. The 1991 Act remained open for signature

by UPOV member States until March 31, 1991, by which time 16

States, including the United States, had signed the Convention.

Article 37 of the 1991 Act provides that it will enter into force

one month after five States have deposited their instruments of adherence, provided that at least three of them are present member

States of UPOV. After entry into force of the 1991 Act, the 1978
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Act of the Convention will be closed to further accessions, except

that developing countries may accede to the 1978 Act until December 31, 1995. To date, no State has deposited its instrument of adherence to the 1991 Act, although many UPOV member States are

actively involved in revising their plant variety protection laws to

bring them into conformance with the 1991 Act, thus permitting

their adherence to that Act. In the United States, implementing

legislation was enacted as Public Law 103–349, on October 6, 1994.

The main aim of the Convention is to promote the protection of

the rights of the breeder in new plant varieties. In that regard, the

Convention not only requires member States to provide protection

for new varieties of plants, but also contains explicit and detailed

rules on the conditions and arrangements for granting protection.

Further, it prescribes the scope of protection, including possible restrictions and exceptions thereto, establishes, with some limitations, the principle of national treatment for plant breeders from

other member States, and provides for a right of priority.

The Convention, as revised by the 1991 Act, would afford additional protection to plant breeders, as follows:

First, the 1991 Act requires Contracting Parties, after certain

transitional periods, to protect varieties of all genera and species

of the plant kingdom.

Second, the 1991 Act redefines a breeder’s right to cover, among

other things, the production of a variety’s propagating material by

others for any purpose. The 1991 Act also expressly permits member States to exclude from the reach of the breeder’s right, the

practice of farmers to save seed.

Third, the 1991 Act extends breeders’ rights to include harvested

material of the protected variety.

Fourth, the 1991 Act puts an end to the common practice, permitted by the present Convention, of using protected varieties to

derive and freely commercialize other varieties that, although differing to some degree, maintain the essential characteristics of the

initial variety.

Finally, the 1991 Act is silent regarding the title of protection

under which a breeder’s right may be granted. This would afford

member States the freedom to provide protection for plant varieties

through patents and sui generis breeders’ rights, thus affording

them greater flexibility in determining how to protect new plant

varieties most effectively.

These and other features of the 1991 Act would enhance the protection afforded to breeders of new plant varieties not only in the

United States, but also in those future member States where patent protection for plant varieties is not now obtainable, and in

present member States where protection of plant breeders’ rights

is either weak or unavailable for a significant number of plant species and genera. An analysis is enclosed, explaining the various Articles of the 1991 Act of the UPOV Convention, including their differences from those of the 1978 Act.

Prompt ratification of the 1991 Act of the UPOV Convention will

demonstrate the United States commitment to effective protection

for intellectual property in the area of new plant variety development. Ratification of this Convention is consistent, therefore, with

United States foreign policy of encouraging other countries to pro-
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vide adequate and effective protection for intellectual property generally, and for new plant varieties in particular. I recommend, therefore, that the 1991 Act of the UPOV Convention be transmitted to the Senate as soon as possible for its advice

and consent to ratification, subject to a reservation under Article

35(2), which allows parties to the 1978 Act to retain their present

plant patent systems for certain varieties of plants.

Respectfully submitted,

PETER TARNOFF.

Enclosure: As stated.

ANALYSIS OF THE 1991 ACT OF THE INTERNATIONAL CONVENTION

FOR THE PROTECTION OF NEW VARIETIES OF PLANTS

CHAPTER I: DEFINITIONS

This chapter has only one article, containing definitions that es- tablish a number of key legal concepts. Article 1 has no counterpart in the 1978 Act of the Convention.

Of the eleven definitions contained in Article 1, the most important

are those explaining the meaning of who may be considered a

‘‘breeder’’, and what is a ‘‘variety.’’ For purposes of the Convention,

a breeder may be any one of several persons. It may be the person

who has bred the variety, or discovered and developed it, unless

the variety was established by that person while in the employ of

another, or under commission. In that case, it is left to national

law to determine the circumstances under which an employer will

be entitled to be recognized as the breeder. Further, the successor

in title of the actual breeder, or his employer, is also recognized,

for purposes of the Convention, as the breeder of the variety. A definition of great significance in the 1991 Act is that of ‘‘vari- ety.’’ In framing that definition, a clear distinction was established

between what constitutes a variety as such and a variety that

meets the technical criteria for protection under the Convention. In

that respect, a variety, under the definition, is a plant grouping

that is distinct from other varieties whose component individuals

display certain common characteristics and that retains its identity

from generation to generation, regardless of whether the precise

conditions for obtaining a breeder’s right are met. This narrow difference between the definition of ‘‘variety’’ and what is considered

to be a ‘‘protectable variety’’ ensures that the former is taken into

account when assessing distinctness of a variety for which protection is sought. Other definitions in Article 1 explain the meaning

of a breeder’s right, and terms such as ‘‘Contracting Party,’’ ‘‘territory,’’ ‘‘authority,’’ ‘‘Union,’’ and the various Acts of the Convention.

CHAPTER II: GENERAL OBLIGATIONS OF THE CONTRACTING PARTIES

This Chapter contains Articles 2, 3 and 4 and deals with the

Contracting Parties’ basic obligations under the Convention, including treatment of each others’ nationals and to what genera and

species of the plant kingdom the protection is to be extended.

Article 2 simply states that each Contracting Party ‘‘shall grant

and protect breeders’ rights’’. In that respect, the 1991 Act is silent

on the form of breeders’ rights to be provided and no longer contains the provision of Article 2 of the 1978 Act prohibiting a mem-
VIII

ber State from providing protection by way of patents, as well as

in the form of sui generis breeders’ rights, for the same botanical genus or species. This improvement gives Contracting Parties the

freedom to provide either, or both, types of protection for plant varieties.

Article 3 corresponds to Article 4 of the 1978 Act and establishes

the parameters of protection within the plant kingdom that member States are required to provide. Earlier Acts of the UPOV Convention recognized, but did not require, that the system be applied

to all botanical genera and species. This general obligation led most

member States to establish plant variety protection only for crop

genera that they considered to be of economic importance to them.

By contrast, Article 3 of the 1991 Act requires that existing member States protect all plant genera and species five years after adhering to the 1991 Act and permits newly adhering States ten

years to achieve this result. Thus, it is intended that over time a

worldwide UPOV system of plant protection will emerge that requires all member States to protect the whole of the plant kingdom.

This change has important consequences, for example, in relation to varieties of certain tropical plant species that are not presently

protected in temperate member States but whose harvested materials are imported from other countries. Thus, for example, if Iceland joined the 1991 Act of the UPOV Convention, a U.S. breeder

of a particular new variety of oranges could eventually obtain protection there and could take action against unauthorized imports of

that orange variety into Iceland from a country in which the U.S.

breeder could not or did not obtain plant variety protection.

Article 4 addresses the treatment that must be afforded by a

Contracting Party to nationals and residents from another Contracting Party. In that respect, the 1991 Act departs from the 1978

Act, which permits a UPOV member State to discriminate against

foreign breeders by limiting their rights of protection in the member State to those afforded in their own country. Under the 1991

Act, a Contracting Party must treat nationals and residents of another Contracting Party no less favorably, for purposes of granting

and protecting breeders’ rights, than its laws accord its own nations.

CHAPTER III: CONDITIONS FOR THE GRANT OF THE BREEDER’S RIGHT

This Chapter contains Articles 5 to 9, and details the criteria

that must be met by a plant variety to be eligible to be the subject

of a breeder’s right.

Article 5 states that a breeder’s right shall be granted when a

plant variety meets the criteria of novelty, distinctness, uniformity

and stability. In that regard, Article 5 presents the conditions for

protectability in a clearer fashion than the wording of comparable

Article 6 of the 1978 Act of the Convention. The Article also provides that a Contracting Party may not subject the grant of a

breeder’s right, as defined by the Convention, to any further or different conditions, other than the requirement that the plant variety

be designated by a denomination.

Article 6 defines that novelty under this Convention refers to the

prior commercialization of the variety, rather than novelty in the
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sense of patent law. In that respect, to lose the recognition of novelty, a breeder must sell or dispose of propagating or harvested material of the variety for the purposes of exploiting the variety for

more than one year in the territory of the Contracting Party in

which the application for protection has been filed, or for more

than four years if the application was filed in another Contracting

Party. The latter time period is extended to six years in the case

of trees and vines.

The mandatory one-year grace period provided by Article 6 of the 1991 Act was only optional under Article 6 of the 1978 Act. The

periods of foreign commercialization permitted without loss of novelty have remained the same in the 1978 and 1991 Acts of the Convention. Further, Article 6(3) of the 1991 Act permits Contracting

Parties that are members of the same intergovernmental organization (for example, the European Communities), to assimilate acts

done on the territory of one member State to acts done on the territories of all member States of that organization. This option appears for the first time in the 1991 Act, as previous Acts of the convention did not permit adherence by intergovernmental organizations.

Article 7 deals with the requirement of a variety’s distinctness

and simply requires that a variety be clearly distinguishable from

any other variety whose existence is a matter of common knowledge at the time the application for the plant breeder’s right was

filed. Thus, the requirement of the 1978 Act, that distinction lie in

the presence of ‘‘one or more important characteristics’’ has been

dropped due to the ambiguity of that requirement as to whether

‘‘importance’’ was equivalent to economic merit. In addition to this,

Article 7 provides a non-exhaustive list of examples that would be

considered ‘‘common knowledge.’’

Article 8 and 9 address the criteria of a variety’s uniformity and

stability. Although reworded from the corresponding provisions in

paragraph (c) and paragraph (d) of Article 6 of the 1978 Act, no

change in substance was intended.

CHAPTER IV: APPLICATION FOR THE GRANT OF THE BREEDER’S RIGHT

This Chapter contain Articles 10 to 13, and provides details regarding an application’s filing, examination and effect.

Article 10 decrees that an adherent to the Convention may not

restrict the choice of the breeder in which particular Contracting

Party to file the first application for a breeder’s right. This provision, as well as the ones relating to the independence of applications in different Contracting Parties, are substantively unchanged

from the requirements in article 11 of the 1978 Act.

Article 11 regulates the right of priority that may be claimed in

an application filed in one Contracting Party on the basis of an earlier application filed in another Contracting Party. The provisions

of Article 11 differ from those of Article 12 of the 1978 Act, in that

the 1991 Act is more specific in permitting the claim of priority

only to be made in an application for a breeder’s right, although

the basis for such claim may be an application for the protection

of a variety, including a patent application.

The 1991 Act also permits authorities with whom the subsequent

application was filed, to require the submission of samples or other
X

evidence proving that the variety claimed by the earlier and the

subsequent applications is the same. This requirement is in addition to that contained in article 12(2) of the 1978 Act, requiring the

furnishing of certified copies of the earlier application to substantiate the claim of priority. Article 12 deals with the examination of the application for a

breeder’s right and corresponds substantially to provisions in Article 7 of the 1978 Act. It does, however, emphasize the options that

are open to an examining authority, including that of accepting test

results already established by others, which implicitly includes the

breeder.

Article 13 obligates Contracting Parties to provide provisional protection for plant varieties during the period between the filing

or publication of an application and the grant of the breeder’s right.

Although provisional protection is also provided in Article 7(3) of

the 1978 Act, it is only optional in nature there. The 1991 Act,

however, permits Contracting Parties to provide provisional protection only in instances where alleged infringers were notified by the

breeder that an application on the variety in question has been

filed.

CHAPTER V: THE RIGHTS OF THE BREEDER

This Chapter contains Articles 14 to 19, dealing with the substantive rights that a breeder derives from a grant of protection

and the instances in which a breeder’s right is either restricted or

exhausted altogether. In this respect, the 1991 Act materially enhances the rights of a breeder when compared to those provided by

the 1978 Act of the Convention.

Article 14 enumerates in paragraph (1) seven specific acts that,

in respect of the propagating material of the protected variety, require authorization from the breeder. They are: (1) production or

reproduction, (2) conditioning for the purpose of propagation, (3) offering for sale, (4) selling or other marketing, (5) exporting, (6) importing, and (7) stocking for any of the previously mentioned acts.

The 1978 Act, in Article 5, only provides protection against the unauthorized production of a variety’s propagating material for purposes of commercial marketing, as well as its being offered for sale

or being marketed without authorization by the breeder.

In addition, paragraphs (2) and (3) of Article 14 extend protection

also to a variety’s harvested material and to products made directly

from the harvested material. However, harvested material is covered only if the breeder did not have a reasonable opportunity to

exercise his rights of exclusion in relation to the propagating material of the protected variety, and products are only encompassed if

the breeder could not exert his rights in the harvested material.

Further, the provisions of Article 14(3), relating to the exercise of

a breeder’s right with respect to products made from the harvested

material of the protected variety, are not mandatory and may be

instituted by a Contracting Party on an optional basis. A similar

provision contained in Article 5(4) of the 1978 Act permits member

States to extend protection to the marketed product of a protected

variety on a reciprocal basis.

Another optional addition to the breeder’s right, similar to Article

5(4) of the 1978 Act, is provided in Article 14(4), which permits
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Contracting Parties to provide that acts, in addition to those referred to in Article 14(1), shall require the breeder’s authorization.

This paragraph introduces a certain amount of flexibility by permitting the expansion of protection beyond the list of acts enumerated in Article 14(1) without, however, the option of requiring reciprocity. Article 14(5) clarifies that the scope of protection of the breeder’s

right extends also to varieties (1) that are not clearly distinguishable from the patented variety, (2) to varieties whose production requires the repeated use of the protected variety, and, most importantly, (3) to varieties that were essentially derived from the protected variety.

Forbidding unauthorized, repeated use of a protected variety to

achieve another variety is already part of the 1978 Act. The other

two provisions, however, are new features of the 1991 Act. Although it may have been taken for granted that varieties not clearly distinguishable from the protected variety should be folded into

the breeder’s right, member States of UPOV tended to differ in

their application of that concept and, hence, the clarification in the

1991 Act is useful.

Extending protection to cover essentially derived varieties covers

rival breeding practices in which a breeder typically induces minor

changes in a protected variety resulting in another variety that,

while distinct, retains the essential characteristics of the initial variety. Although functionally equivalent, this variety was heretofore

recognized as independent and no reward was due the breeder of

the initial variety whose efforts resulted in all the beneficial characteristics of the essentially derived variety. By including essentially derived varieties within the metes and bounds of the breeder’s right concerning the initial variety, the 1991 Act considerably

enhances this right by controlling ‘‘cosmetic breeding’’ that borders

on piracy.

Article 15 details exceptions to the breeder’s right by adding acts

done privately and for non-commercial purposes, as well as those

done for the purpose of experimentation, to the exception already

contained in Article 5(3) of the 1978 Act, namely that the breeder’s

right does not reach acts done for the purpose of breeding other varieties. Article 15 narrows, however, the breeding exception contained in the 1978 Act by eliminating the provision that varieties

obtained from other varieties may freely be marketed without the

authorization of the breeder of the initial variety. In that sense, the

exceptions in Article 15(1) to the breeder’s right were adapted to

balance the extension of the breeder’s right by Article 14(5), discussed above.

Article 15 also provides for another exception to the breeder’s

right, albeit in optional form. Contracting Parties may restrict the

breeder’s right to permit farmers to save seed obtained from the

use of a protected variety on their holdings for further propagation

purposes on their own holdings. It does not, however, permit farmers to sell or market such saved seed for purposes of propagation.

The ‘‘saved seed’’ exemption is an explicit expression of the implicit

creation of this exemption by the wording of Article 5(1) of the 1978

Act, which provides that the breeder’s authorization is only required for the production of propagating material ‘‘for purposes of
XII

commercial marketing.’’ Thus, if saved propagating material is not

sold as such but is only replanted, that act falls outside the scope

of protection offered by the 1978 Act. By explicitly stating this exception to the breeder’s right, the 1991 Act clarifies this principle,

while also narrowing the exception, given its optional nature. Article 16 specifies under what circumstances a breeder’s right becomes exhausted. Basically, an authorized vendor of material of

the protected variety may not control by means of the breeder’s

right what the buyer does with that bought material, or with any

crop or harvest derived from such material. However, certain actions by a buyer that would be inconsistent with the purpose for

which the plant variety material was sold in the first place, are not

included in the exhaustion of rights and would represent an infringement. These involve acts of further propagation of the variety

or the export of propagating material of the variety to a country

that does not protect plant varieties of the genus or species to

which it belongs. It is permitted, however, to export plant variety

material to such a country for final consumption purposes. The provisions of Article 16 are not reflected in any earlier Acts of the

UPOV Convention.

Article 17 provides a further optional restriction by Contracting Parties on the breeder’s right. In accordance with this Article, a

Contracting Party may, in addition to other restrictions provided

for in the Convention, limit a breeder’s exclusionary rights, for reasons of public interest. However, where such restriction assumes

the form of a compulsory license in favor of a third party, the Contracting Party is obliged to ensure that the breeder receives equitable remuneration. The concept expressed by Article 17 is already

contained in Article 9 of the 1978 Act.

Article 18 provides that a breeder’s right is independent of any measures taken by a Contracting Party to regulate the production,

certification and marketing of material of a variety. This concept

is already expressed in Article 14 of the 1978 Act. Article 19 revises the minimum periods of protection for varieties provided for under Article 8 of the 1978 Act (18 years for trees and

vines, and 15 years for all other species) to periods of 25 years for

trees and vines, and 20 years for all other species.

CHAPTER VI: VARIETY DENOMINATION

This chapter, consisting only of Article 20, is similar to Article 13 of the 1978 Act. It provides that a variety must be designated

by a denomination that will be its generic name. Article 20 also

provides certain guidelines for the submission of variety denominations to examining authorities and for their use and effect.

CHAPTER VII: NULLITY AND CANCELLATION OF THE BREEDER’S RIGHT

This chapter consists of two articles and addresses the specific

and only grounds on which a breeder’s right may be revoked or

canceled.

Article 21 provides for three situations where a breeder’s right

must be declared null and void ab initio. These are where 1) the

protected variety is shown not to have been novel or distinct at the

date of grant, 2) the protected variety was granted a breeder’s right

on the basis of incorrect information by the breeder with respect
XIII

to uniformity or stability, or 3) the breeder’s right was granted to

a person not entitled to it. The obligation to revoke a breeder’s

right on the basis of lack of novelty or distinctness was already established in Article 10 of the 1978 Act.

Article 22 permits the cancellation of a breeder’s right if a variety

proves to be no longer uniform or stable. A Contracting Party may

also cancel a breeder’s right on the basis of a breeder’s (1) refusal

to submit information necessary to verify the maintenance of the

variety, (2) failure to pay fees to keep the breeders’s right in force,

or (3) failure to comply with certain requirements concerning the

furnishing of a suitable variety denomination. The option to cancel

a breeder’s right on the basis of a refusal to submit information regarding the variety’s maintenance or failure to pay appropriate fees

was also already provided for in Article 10(3) of the 1978 Act. However, the mandatory cancellation of the breeder’s right under Article 10(2) of the 1978 Act, on the basis of a breeder’s inability to provide propagating material capable to produce the variety with its

original characteristics, was not maintained in the 1991 Act of the

Convention.

CHAPTER VIII: THE UNION

This Chapter comprises Articles 23 to 29, defining the status of

Contracting Parties, the legal status and seat of the International

Union for the Protection of New Varieties of Plants, the Union’s organs and their tasks, and the Union’s finances, as well as its official languages. For the most part, these provisions are substantively the same as those contained in the 1978 Act of the Convention. There are, however, some important changes.

Article 23 states that Contracting Parties shall be members of

the Union, and essentially repeats the provision of Article 1(2) of

the 1978 Act.

Article 24 defines the status of the Union, repeating the provisions of Articles 1(3) and 24 of the 1978 Act.

Article 25 restates Article 15 of the 1978 Act, concerning the

Union’s organs, namely the Council and the Office of the Union.

Article 26 details the composition and functions of the Council,

by consolidating provisions in that respect contained in Articles 16

to 22 of the 1978 Act of the Convention. Two additional tasks for

the Council have been added, namely the establishment of its rules

of procedure and the establishment of the Union’s administrative

and financial regulations.

A further change was made in the voting procedure of members

of the Union in view of the change in Article 34, permitting intergovernmental organizations to become parties to the 1991 Act of

the Convention. In that regard, Article 26(6) provides that each

member State of the Union has one vote in the Council and that

any Contracting Party that is an intergovernmental organization

may, in matters within its competence, cast the votes of all its

member States, unless they exercise their own rights to vote. As

a consequence, an intergovernmental organization may cast only

the votes of its member States if no member State casts a vote.

This arrangement preserves the integrity of the voting procedure

and avoids the grant of a separate vote to an intergovernmental or-
XIV

ganization in addition to the votes of its member States on whose

territory the intergovernmental organization operates. Article 27 states the tasks of the Office of the Union, provides for

its staffing, and details the duties of the Secretary-General of the

Union, virtually in identical manner as contained in Article 23 of

the 1978 Act.

Article 28 adds Spanish as an official language of the Union, in addition to English, French, and German, already provided for by

Article 28 of the 1978 Act.

Article 29 details the financial arrangements of the Union, which are substantially the same as those provided in Articles 25 and 26

of the 1978 Act, except for two instances. Article 29 reduces the

number of years from two to one in which a member State may be

in arrears in the payment of its assessed contributions, before losing its right to vote in the Council. Further, in view of the fact that

an intergovernmental organization as a Contracting Party has no

vote in its own right, it is not obliged to pay contributions, although it is not discouraged from doing so.

CHAPTER IX: IMPLEMENTATION OF THE CONVENTION

This Chapter contains Articles 30 to 32, and addresses the

means by which each Contracting Party is obliged to implement

the Convention, as well as how member States bound by different

Acts of the Convention relate to each other in the application of

such Acts.

Article 30 addresses the implementation of the Convention and

is substantively the same as Article 30 of the 1978 Act, except for

the deletion of a reference to the possibility of concluding cooperative examining contracts between member States, which was

deemed to be superfluous.

Article 31 regulates the relations between Contracting Parties and States bound by earlier Acts of the UPOV Convention and is

substantively the same as Article 34 of the 1978 Act, which regulates such relations between adherents to the Acts of 1961 and

1978, respectively. Article 32 repeats the possibility of special agreements to be con- cluded among members of the Union regarding the protection of

plant varieties, as already contained in Article 29 of the 1978 Act

of the Convention.

CHAPTER X: FINAL PROVISIONS

This Chapter contains Article 33 to 42, and addresses miscellaneous aspect of Convention procedures.

Article 33 provides for signature of the Convention until March

31, 1992, by States that are already members of the Union. The

United States signed the Convention on October 25, 1991.

Article 34 details the means of becoming party to the Convention

and permits the accession of intergovernmental organizations,

under certain circumstances, in addition to States.

Article 35 provides for the possibility of a reservation to the 1991

Act of the Convention only by a State that is a party to the Act

of 1978 and that provides protection for asexually reproduced varieties by means other than a breeder’s right. Upon notifying the

Secretary-General at the time of depositing its instrument of ratifi-
XV

cation, such State is permitted to continue protection of asexually

reproduced varieties without applying the obligations and requirements of the 1991 Act to these varieties. This reservation is specifically intended to permit the United States to continue its present

system of providing protection for asexually reproduced varieties by

way of plant patents under sections 161 et seq. of title 35, United

States Code, rather than plant breeders’ certificates under section

2321 et seq. of title 7, United States Code. A similar, but less comprehensive reservation is already contained in Article 37 of the

1978 Act of the Convention.

Article 36 provides for the communication among Contracting

Parties regarding each others’ legislation concerning breeders’

rights, the genera and species initially protected upon becoming

party to the 1991 Act and the dissemination of such information.

These provisions are substantively the same as those contained in

Article 35 of the 1978 Act.

Article 37 details the circumstances under which the 1991 Act of

the Convention comes into force. It requires the deposit of the appropriate instruments of five States, of which at least three must

already be members of the Union. One month after such deposit,

the 1991 Act of the Convention comes into force and any State or

intergovernmental organization that subsequently adheres to this

Convention will be bound one month after depositing its instrument. Article 37 also provides that accession to the 1978 Act of the

Convention will no longer be possible after entry into force of the

1991 Act, except for developing countries that may accede to the

1978 Act until December 31, 1995, even if the 1991 Act were to

come into force before then.

Article 38 provides the procedures for revising the Convention

and is identical with Article 27 of the 1978 Act, except for the majority required to adopt a revision. The 1978 Act requires a majority of five-sixths of the member States to revise the Convention,

while the present Article reduces this majority to three quarters.

Article 39 repeats the procedures regarding the denunciation of

the Convention, already contained in Article 41 of the 1978 Act,

and adds the provision that denunciation of the 1991 Act of the

Convention has the effect of also denouncing any earlier Acts by

which the Contracting Party is bound.

Article 40, like Article 39 of the 1978 Act, provides for the preservation of existing breeders’ rights if a party adheres to the Convention. However, unlike the 1978 Act, which provides that existing

rights not be affected, the 1991 Act provides that they not be limited, thus permitting an extension of existing rights, if so desired

by a Contracting Party.

Articles 41 and 42 provide information on original and official

texts of the Convention, their establishment in other languages and

the depositary functions of the Secretary-General. In substance

these Articles are the same as Article 42 of the 1978 Act of the

Convention.
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