I. 2) The definition of the notion “variety” and its requirements

Artocarpus heterophyllus – Jackfruit – © PBRights

The object of plant variety protection is a variety. According to Article 1 (vi) of the 1991 Act of the UPOV (regarding the CPVR system see Article 5 (1) of Regulation (EC) No 2100/94) the notion “variety” is defined as follows:

“Variety means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be

– defined by the expression of the characteristics resulting from a given genotype or combination of genotypes (to learn more about genotype see here),

– distinguished from any other plant grouping by the expression of at least one of the said characteristics and

– considered as a unit with regard to its suitability for being propagated unchanged;”

In other words, “variety” is a plant grouping, selected from within a species or sub-species, with a common set of characteristics, which must find their expression at phenotypical level (see here). i.e. which must be observable or measurable.

Considering the key role of the conception of variety as the object of protection, the document “Explanatory Notes on the Definition of Variety under the Act of the UPOV Convention” (see here UPOV/EXN/VAR/1) provides guidance on its definition under the 1991 Act UPOV. However, it needs to be emphasized that, as the only obligations binding on UPOV members are those contained in the text of the UPOV Convention itself, the Explanatory Notes must not be interpreted in a way that is inconsistent with the cited UPOV Act.

According to the Explanatory Notes:

– from the statement that variety means “a plant grouping within a single botanical taxon of the lowest known rank” it follows that a variety may not, for example, consist of plants of more than one species.

– from the statement that “irrespective of whether the conditions for the grant of a breeder’s right are fully met” it follows that the definition of a “variety” is wider than “protectable variety”. In other words, while varieties of common knowledge which are not protected may, nevertheless, still be varieties, not every new breeding result is open to protection.

– the definition that a variety means a “plant grouping” indicates that

. a single plant – however, an existing variety may be represented by part(s) of a plant, provided that such part(s) of the plant could be used to produce entire plants or, in other words, as propagating material/variety constituents;

. a trait as, for example, disease resistance or flower color;

. a chemical or other substance as, for example, oil or DNA;

. a plant breeding technology as, for example, tissue culture;

do not correspond to the definition of a variety.

– regarding the statement “defined by the expression of characteristics that results from a given genotype or combined genotypes” the expression “combination of genotypes” covers, for example, synthetic varieties and hybrids.

– from the statement “considered as a unit with regard to its suitability for being propagated unchanged” it follows that the UPOV Convention does not limit the means by which a variety can be propagated unchanged. The UPOV document TGP/7 (here) provides some examples of methods of propagating.

In order to qualify for protection, a variety in the aforementioned sense has to be

. distinct: must show differences in consistent and clear characteristics allowing to distinguish it from any other known variety of the same species (see Chapter I 2) c) Distinctness);

. uniform: the relevant characteristics must be sufficiently uniform; bearing in mind that natural material is non-identical, variations in certain ranges are acceptable (see Chapter I 2) d) Uniformity);

. stable: the relevant characteristics must remain unchanged after repeated propagation (see Chapter I 2) e) Stability);

. novel: what is to be defined as a variety in the sense of the plant protection system must not have been available on the market within certain novelty terms (see Chapter I 3) Novelty).

The first three requirements for protection are the so called DUS-requirements (Distinctness, Uniformity, Stability). These conditions must

. be the result from a given genotype or combination of genotypes;

. be sufficiently consistent and repeatable in a particular environment;

. exhibit sufficient variation between varieties to be able to establish distinctness;

. be capable of precise definition and recognition;

. allow uniformity requirements to be fulfilled; and

. allow stability requirements to be fulfilled, meaning that it produces consistent and repeatable results after repeated propagation or, where appropriate, at the end of each cycle of propagation (see here TG/1/3 – Nr. 4.2).

From the aforementioned requirements it follows that they are related to definable characteristics which may be differentiated as follows:

. qualitative characteristics; (see here UPOV TG/1/3 – Nr. 4.4.1)

. quantitative characteristics; (see here UPOV TG/1/3 – 4.4.2),

. pseudo-qualitative characteristics (see here UPOV TG/1/3 – 4.4.3).

Whether characteristics defining a variety have any intrinsic commercial or cultivation value or merit is irrelevant.

According to the Explanatory Notes, in general, the authorities do not examine whether a “candidate variety” corresponds to the definition of a variety according to Article 1(vi) of the 1991 Act of the UPOV Convention, as they are required to examine whether the application for a breeder’s right meets the requirements for the grant of a breeder’s right. That having been said, a variety which fulfills the DUS criteria will meet the definition of “variety”, while in the case of a rejected application, the authorities will not indicate whether they are of the opinion that the candidate variety corresponds to the definition of a “variety” or not (see also Würtenberger, The object of protection of plant variety rights, here).

I. Object of protection: What are protectable plant varieties under the UPOV Convention

I. 2) Material Conditions for Grant of a Plant Variety Right

Published on May 15, 2021