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About Law of March 2006 Plant Variety

Un détail significatif : La prolongation de la durée de protection du certificat de l’obtention végétale française does not depend on the ratification of the 1991 Convention

A first draft ratification of UPOV 1991 was filed in 1996 (1). But only ten years later and rushed the legislature passed the law to ratify UPOV 1991 March 2, 2006 (2). This haste was justified by the imminent need to extend the term of protection granted to breeders from 20 to 25 years. Curiously, this extension had already been made the previous day by a law of a st March 2006, which had also been adopted in "emergency" (3). The main reason advanced by the parliamentary reports (4) was that some VOCs were coming to an end and plant varieties that would "fall into the public domain." It was necessary, argued they, "save [the] Charlotte [the] Mona Lisa" (5) (see two varieties of potatoes). That is the fear of public domain that has driven the early adoption of these laws (6).

Theoretically, any protection for intellectual property right is limited in time because the grant exclusivity to a breeder or inventor is an exception freedom to undertake any other person, but also, and perhaps most importantly, it confers an exclusive right to encourage the disclosure of a text, an invention or a plant variety to enable better dissemination knowledge. Thus, Article 8 of the 1978 Convention and Article 19.1 of the Convention of 1991 indicate that the PBR is granted for a period of "limited" or "defined".

Although the two conventions of 1978 and 1991 provided for a term of protection, moreover different: the first fixed to 15 years, except for trees and vines, which should be protected at least 18 years (7); on the second, it extended up to two times respectively 20 and 25 years (8). However, the protection periods and corresponded to a minimum set that nothing prevented the signatory states to overcome the above conventions setting no time limit. France could, therefore, freely, either under the 1978 Convention or under that of the 1991 Convention, extending the duration of exclusive rights granted to breeders in France. It is therefore difficult to argue, as has been done before the Assembly national, that "[...] the lack of timely ratification of the Revision Act of 1991", varieties fall into the public domain because it was possible to extend the term of protection by a French law, under the 1978 Convention (9). In fact, the law of 1 st March 2006 amending Article L. 623-13 of the ICC was adopted before the ratification and implementation was immediate. Its application is therefore not subject to the condition of ratification of the Convention of 1991.

But these arguments of "emergency" based on 'fear' public domain, enabled the rapid adoption of the ratification bill, avoiding a substantive discussion about real change implied ratification of the new treaty, which is unfortunate. The decision to extend the term of plant variety certificate was French and a matter of law only.

(1) Bill was tabled in the Senate December 11, 1996 and reviewed by its Committee on Foreign Affairs and Defence 26 June 1997.

(2) Law No. 2006-245 of March 2, 2006 authorizing the ratification of the revision of the International Convention for the Protection of New Varieties Plants, Official Gazette No 53 of March 3, 2006.

3) The report of JP Nicolas before the Senate as the second part talks of "emergency": "The urgency of a longer duration of certificates of plant variety." J.-P. Nicolas, Report on behalf of the Committee on Economic Affairs, Environment and Territory of the National Assembly on the bill, passed by the Senate, concerning plant varieties (No. 2869 ) www.assemblee-nationale.fr, February 23, 2006. The law of 1 st ^March amended Article L. 623-13 of the Code of Property Intellectual (CPI) and thus the duration of protection conferred by the French VOCs. Act No. 2006-236 of 1 March 2006 concerning plant varieties, Official Gazette No 52 of March 2, 2006.

(4) For the Senate: J. Puech, Supplementary Report drawn up on behalf of the Committee on Foreign Affairs, Defence and Armed Forces of the Senate bill authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants, www.senate . fr, December 7, 2005. For the National Assembly: J. Glavany Report on behalf of the Foreign Affairs Committee of the Assembly National Bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803), No. 2849, February 13, 2006, 8 p.

(5) Glavany Report on behalf of the Foreign Affairs Committee of the National Assembly on the bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803) .

(6) These are the 'falls' who "reasoned the French authorities to revive the ratification process Revision Act of 1991 and to undertake a parallel modification of the code of intellectual property and the Rural Code "Ibid.

(7) Section 8 of the UPOV Convention of 1978 imposes a term of protection as follows: "The right conferred on the breeder shall be granted for a limited time. It can not be less than fifteen years from the date of issue of the protection. For vines, forest trees, fruit trees and ornamental trees, including, in each case, their rootstocks, the duration of protection can not be less than eighteen years from that date. "

(8) Article 19.2 of the UPOV Convention 1991: "this may not be less than 20 years from the date of grant of PBR. For trees and vines, but may not be less than 25 years after that date. .

(9) Glavany Report on behalf of the Foreign Affairs Committee of the National Assembly on the bill, passed by the Senate, authorizing the ratification of the revision of the International Convention for the Protection of New Varieties of Plants (No. 2803) .