Only the breeder as defined in Article 1(iv) of the 1991 Act of the UPOV Convention (here) is entitled to be granted a breeder’s right.
Article 21(1)(iii) provides, that
[e]ach Contracting Party shall declare a breeder’s right granted by it null and void when it is established
[ … ]
(iii) that the breeder’s right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.
According to Art. 1 (IV) of the 1991 Act of the UPOV Convention “breeder” means
– the person who bred, or discovered and developed, a variety,
– the person who is the employer of the aforementioned person or who has commissioned the latter’s work, where the laws of the relevant Contracting Party so provide, or
– the successor in title of the first or second aforementioned person, as the case may be;
The term “person” in Article 1(iv) of the 1991 Act of the UPOV Convention should be understood to embrace both physical and legal persons, whereby the original breeder is always a natural person. Legal person as the sucessor in title refers to an entity with rights and obligations in accordance with the legislation of the Member of the Union concerned. Furthermore, the term person refers to one or more persons (see Explanatory Notes on the Definition of Breeder under the 1991 Act of the UPOV Convention here).
Under the UPOV Convention there is no restriction on who can become a breeder or with regard to the methods or techniques by which a new variety is “bred”. However, as the breeder is the person who bred the new variety, it is necessary to consider the breeding history in order to conclude that a person is, in fact, the “breeder”. Consequently, the interpretation of the notion of breeder will be provided by the Members of the Union while examining the specific information, for example the breeding scheme, submitted with new applications for plant breeder´s rights.
A breeder might be, for example, an amateur gardener, a farmer, a scientist, a plant breeding institute or an enterprise specialized in plant breeding. However, in case the person who bred, or discovered and developed, a variety is an employee, the employer, or the person who has commissioned the latter’s work, may be the person entitled to obtain a breeder’s right, where the applicable national law so provides.
While a “discovery” might be the initial step in the process of breeding a new variety, as in the case of a mutation, which must be evaluated and propagated before it can be exploited, “development” describes the process of “propagation and evaluation.” The words “discovery and development” – in combination – mean, that a mere discovery, or finding, would not entitle the person to obtain a breeder’s right (see besides the “Explanatory Notes on the Definition of Breeder under the 1991 Act of the UPOV Convention” also the document “The Notion of Breeder and Common Knowledge in the Plant Variety Protection System Based Upon the UPOV Convention” here; see also Würtenberger / Ekvad / van der Kooij / Kiewiet – European Union Plant Variety Protection, Chapter III).
Regarding the “successor in title” a person may, for example, become the “successor in title” by law, will, gift, sale or exchange, where the law of the relevant Member of the Union so provides.
As to the CPVR system, Article 11 of Regulation (EC) 2100/94 provided the following:
Entitlement to Community plant variety rights
1. The person who bred, or discovered and developed the variety, or his successor in title, both – the person and his successor – referred to hereinafter as ‘the breeder’, shall be entitled to the Community plant variety right.
2. If two or more persons bred, or discovered and developed the variety jointly, entitlement shall be vested jointly in them or their respective successors in title. This provision shall also apply to two or more persons in cases where one or more of them discovered the variety and the other or the others developed it.
3. Entitlement shall also be invested jointly in the breeder and any other person or persons, if the breeder and the other person or persons have agreed to joint entitlement by written declaration.
4. If the breeder is an employee, the entitlement to the Community plant variety right shall be determined in accordance with the national law applicable to the employment relationship in the context of which the variety was bred, or discovered and developed.
5. Where entitlement to a Community plant variety right is vested jointly in two or more persons pursuant to paragraphs 2 to 4, one or more of them may empower the others by written declaration to such effect to claim entitlement thereto.
The definition of the breeder provided in Article 11 Regulation (EC) 2100/94 is similar to the one laid down in Article 1 (iv) of the 1991 Act UPOV Convention, with the exception that, while the UPOV definition also qualifies the employer of the person who bred, or discovered and further developed, the variety as the breeder, ‘where the laws of the relevant Contracting Party so provide’, Article 11(4) refers to the employee. However, as legal persons can be indicated in applications for CPVR as the breeder of the variety, entitlement can be vested directly without the need to apply Article 11 (4).
Published on July 12, 2021