Update on UPOV’s Working Group on HRV

In September 2022, SPG members were informed about the outcomes of the second meeting of UPOV’s Working group on HRV (September 6, 2022).

In this meeting, the discussion focussed on the principle of authorisation of the breeder in article 14 UPOV, sub 2.

This article addresses the question: does authorisation in article 14, sub 2 mean that the breeder needs a valid breeder’s right title in relation to harvested material, or that consent of the breeder is sufficient to others to produce or reproduce, offering for sale etc., harvested material?

So, if there was no consent, the breeder can still enforce his right to harvested material if he had no reasonable opportunity to do so in relation to the propagating material.

In the second meeting, the UPOV staff promised to work out two documents:

1. What are the consequences if the principle of authorisation of the breeder in article 14 UPOV, sub 2 is explained as its nowadays interpretation, namely: it is required that the breeder owns a valid breeder’s right title?
2. What are the consequences if the principle of authorisation of the breeder in article 14 UPOV, sub 2 is explained as no consent of the breeder?

These documents will be sent to the Working Group members in January 2023 and discussed in the next meeting of the WG-HRV on March 15, 2023.

Nevertheless, a lively discussion -not without some controversies- took place in UPOV’s CAJ-meeting (October 26, 2022), particularly on the interpretation of the principle of “authorised use” again.

The Dutch delegation proposed that the next EXN- HRV draft provided more information explaining the relation between article 14, sub 2 and the principle of exhaustion of the right of the PBR-holder (art. 16 UPOV). Several members and observers, including AIPH, backed this proposal.

The clarification of the relation between unauthorised use (in article 14, sub 2) and exhaustion could lead to a solution that is less controversial than the explanation that unauthorised use has to be explained as no consent of the breeder. The lack of clarity is a consequence of the judgement in the so-called Nadorcott case (CJEU-176/18).

Through informal contacts during the UPOV week, the observers (including AIPH) and staff of the EU Commission and CPVO expressed the intention to cooperate and consult each other about further developments in the Working Group on HRV.

AIPH recognises that there are contacts with other non-EU member countries that also participate in the WG-HRV. However, the lack of clarity created by the Nadorcott case impacts the EU in the first place.