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Dieses Dokument wurde von einer Papierkopie gescannt und könnte Abweichungen vom Originaldokument aufweisen. _____ Descargo de responsabilidad: salvo que el Consejo de la UPOV decida de otro modo, solo se considerarán documentos de políticas u orientaciones de la UPOV los que hayan sido aprobados por el Consejo de la UPOV y no hayan sido reemplazados. Este documento ha sido escaneado a partir de una copia en papel y puede que existan divergencias en relación con el documento original. d:\users\renardy\appdata\local\microsoft\windows\temporary internet files\content.outlook\57qo7ps0\disclaimer_scanned_documents.docx I ! 1-. ' ... , '3 C/25/9 ( UPOV) ORIGINAL: English DATE: September 23, 1991 INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS GENEVA COUNCIL Twenty-fifth Ordinary Session Geneva, October 24 and 25, 1991 EXAMINATION OF THE CONFORMITY OF THE LAWS OF URUGUAY WITH THE UPOV CONVENTION Document prepared by the Office of the Union Introduction 1. By letter dated September 3, 1991, Ing. Agr. Alvaro Ramos Trigo, Minister for Livestock, Agriculture and Fisheries of Uruguay, has requested the advice of the Council of UPOV, pursuant to Article 32(3) of the 1978 Act of the UPOV Convent ion (hereinafter referred to as "the 1978 Act"), on the conformity of the laws of Uruguay with the 1978 Act. The letter is reproduced in Annex I to this document. 2. Uruguay did not sign the 1978 Act. Accordingly under Article 32(l)(b) of the 1978 Act, in order to become a member of UPOV, Uruguay must deposit an instrument of accession, but before doing so, it must ask the Council of UPOV pursuant to Article 32(3) to advise it in respect of the conformity of its laws with the provisions of the 1978 Act. An instrument of accession may be deposited if the Council's advice is positive. 3. Laws relating to the protection of new varieties of plants have existed in Uruguay since September 1981. Such laws, ·whilst drawing inspiration from the 1961 Act of the Convention, did not conform with the provisions of the 1961 Act of the Convention or the 1978 Act. A meeting took place in 1985 in the Offices of UPOV between Ing. Agr. Gustavo Blanco Demarco, Assistant Director, Seeds, in the Executive Unit for Seeds of the Ministry of Livestock, Agri­ culture and Fisheries of the Uruguay Government, and a former Vice Secretary­ General of UPOV, Dr. Heribert Mast, during which the conformity of the laws of Uruguay with the UPOV Convention was discussed. The meeting was followed up by Dr. Mast in a detailed letter to the said Assistant Director. 3665V C/25/9 page 2 4. Changes that had been made in the laws of Uruguay were discussed in correspondence between the Off ice of UPOV and the Government of Uruguay in 1989, and in July 1990, the Vice Secretary-General paid an official visit to Uruguay during the course of which he was informed by the Minister for Agri­ culture of Uruguay that his country intended to modify its laws so as to con­ form with the UPOV Convention and to seek membership of UPOV. Following upon the visit of the Vice Secretary-General to Uruguay, the Office of UPOV has made suggestions from time to time in correspondence concerning changes proposed to the relevant laws of Uruguay. The Legal Basis for the Protection of New Plant Varieties in Uruguay 5. The legal basis for the protection of new varieties in Uruguay is con­ tained in: (i) Law 15,173 of August 13, 1981, which establishes legal norms for the production, certification, commercialization, export and import of seed, as amended by Law 15,554 of May 21, 1984 (the parts of these laws which relate to the protection of new varieties of plants (hereinafter referred to as "the Law") are reproduced in Annex II to this document); (ii) Decree 84/983 which establishes, pursuant to Law 15,173, detailed legal rules relating to the production, certification and commercialization of seed and for the protection of the property in new plant varieties, as amended by Decree 418/987 of August 12, 1987, and by a further Decree (as yet un­ numbered) of September 17, 1991 (the parts of the texts of these Decrees (apart from Article 3 of the Decree of September 17, 1991) which relate to the pro­ tection of new varieties of plants are reproduced in a consolidated form (here­ inafter called "the Decree") in Annex III to this document); Article 3 of the Decree of September 17, 1991 is separately reproduced in Annex III). (iii) a resolution designating the Grain Directorate (DIGRA) of the Ministry of Agriculture and Fisheries acting through its Director as the Executing Agency responsible for the administration and implementation of Law 15,173 and Decree 84/983; (iv) formal resolutions of the Director of the Grain Directorate extending protection to Avena spp., Festuce arundinacea, Glycine max, Hordeum vulgare, Lolium multiflorum, Lotus subbiflorus, Triticum aeastivum and Trifolium pratense. The procedures relating to the accession of Uruguay to an international Convention under the laws of Uruguay require the incorporation of the provi­ sions of the Convention into the domestic law of Uruguay. When so incorporated the provisions of the Convention will take precedence over the domestic law. Accordingly if in any respect there should be an inconsistency between the domestic law and the 1978 Act, the 1978 Act wil~ prevail. Article 1(1) of the 1978 Act: The Purpose of the Convention 6. Article 1(1) of the 1978 Act provides "that the purpose of this Convention is to provide to the breeder of a new plant variety or to his successor in title ••. a right." Article 15 of the Law provides for the Executing Agency to establish a Cultivar Ownership Register, the purpose of which is to protect the property rights of the breeders of new varieties. Article 52 of the Decree confirms that a new plant variety may, in accordance with the provisions of C/25/9 iII··· page 3 the Decree, be the subject of a "title of ownership." Article 18 of the Law and Article 53 of the Decree provide for the transfer of ownership of such titles to successors in title, subject to the recording of changes in ownership with the Executing Agency. The objectives and purpose of the Law and the Decree made thereunder are consistent with the objectives and purpose of the Convention. Article 2 of the 1978 Act: Form of Protection 7. The Law and Decree together provide for the granting by the Executing Agency of a "title of ownership" for new plant varieties which constitutes a "special title" for the purposes of Article 2 of the 1978 Act. The laws relating to patents in Uruguay contain no express exclusion of plant varieties from patenting. However, the Patent Office of Uruguay does not, in practice, provide patent protection for any of the species for which titles of ownership are provided for plant varieties. Accordingly the practical effects of the laws of Uruguay conform with Article 2 of the 1978 Act. Article 3 of the 1978 Act: National Treatment 8. Article 68 of the Decree provides that breeders resident abroad shall enjoy the same rights as breeders resident in Uruguay provided that the legis­ lation of the breeder's country of residence offers protection for the species which such breeders seek to protect in Uruguay. The laws of Uruguay according­ ly provide for protection of foreign breeders generally subject to a recipro­ city principle and conform with Article 3 of the 1978 Act. Article 4 of the 1978 Act: Botanical Genera and Species Which May or Must be Protected 9. Article 15 of the Law provides for the protection of plant varieties and expresses no limitation. Article 55 of the Decree provides that any variety (other than a first generation hybrid) of a species specified by the Executing Agency shall be eligible for protection. The Director of the Grain Directorate has to date extended protection to eight species so that the laws of Uruguay currently conform with the provisions of Article 4 of the 1978 Act. Article 5 of the 1978 Act: Rights Protected - Scope of Protection 10. Article 52 of the Law provides that "the title of ownership of a plant variety shall confer on its owner the exclusive right to produce, introduce, multiply, offer or undertake to sell, sell or otherwise exploit by any means, reproductive or vegetative propagating material of a protected variety." Article 52 provides a scope of protection which is at least equivalent to the minimum scope of protection required by Article 5(1) of the 1978 Act. 11. The provisions of Article 52 are, however, qualified by Article 54 of the Decree. Article 54(a) provides that the rights of the holder of a title of ownership do not extend to "the product of cultivation when used or sold as a raw material or food." This provision accords with the 1978 Act since the minimum scope of protection required by Article 5 of the 1978 Act does not extend to the marketed products such as raw material or food.