Besides the protection requirements – distinctness, uniformity and stability – Article 6 of the 1991 Act of the UPOV Convention (here) (for the CPVR system seen here Article 6 of Council Regulation (EC) No 2100/94) mentions that plant variety rights shall be granted for varieties which are new.
In a market economy, the breeder that provides the general public with a significant breeding contribution is rewarded with an exclusive right for commercial exploitation of the breeding result, which, however, must be timely limited in order to advance competition.
Assuming that breeding varieties is socially desirable and that the breeding of varieties would be sub-optimal without incentives, the granting of an exclusive right finds its justification in the enrichment of the general public by the making available of the breeding result to the market by the breeder, advancing economic progress and, consequently, increasing the wealth and general well-being. Moreover, the granting of an exclusive right has its justification in the belief that the perspective to be rewarded with an exclusive right provides breeders with the necessary incentives to invest into the breeding of new varieties.
Enrichment, however, is only possible if the breeding result is indeed new, i.e. not universally accessible by the general public. In contrast thereto, know varieties, i.e. varieties that are not different from what is previously know, do not enrich the public.
Expressed differently, the justification for exclusive rights, such as plant variety rights, lies in the contribution of the breeder having created something unknown. For this reason and in addition to the protection requirements “distinctness, uniformity and stability” Article 6 of the 1991 Act of the UPOV Convention (regarding the CPVR system see here Article 6 of Council Regulation (EC) No 2100/94) provides that Community plant variety rights shall be granted for varieties which are “new”. In contrast to patent law, which excludes patenting of discoveries, plant varieties that have existed but have not yet been discovered can also be protected if they meet the DUS requirements.
Published on May 15, 2021