UPOV/EXN/NUL/2 - Explanatory Notes on the Nullity of the Breeder's Right under the UPOV Convention

Aug 23, 2026

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Explanatory Notes provide guidance on “Nullity of the Breeder’s Right” under the UPOV Convention, clarifying the scope of binding obligations versus interpretative guidance. They describe the legal grounds for declaring a breeder’s right null and void under the 1991 Act and the 1978 Act, and emphasize limits on other possible reasons. The notes further cover “shall” requirements, the difference between nullity and cancellation, how proceedings may be initiated, publication obligations, and the generally retroactive effects of a nullity decision.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages5

Reading Time13 min

AccessFree to download

Preamble

Purpose and scope

Link to Article 21 (1991) and Article 10 (1978)

Section I: Provisions on the Nullity of the Breeder’s Right

Reproduced legal provisions (Article 21, 1991 Act; Article 10, 1978 Act)

Section II: Certain Aspects of the Provisions on the Nullity of the Breeder’s Right

Meaning of “shall” and binding declaration

Nullity vs cancellation

Nullity proceedings and decisions

Authority competence

Publication requirement

Retroactive effects

E UPOV/EXN/NUL/2 ORIGINAL: English DATE: October 29, 2015 INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS Geneva EXPLANATORY NOTES ON THE NULLITY OF THE BREEDER'S RIGHT UNDER THE UPOV CONVENTION Document adopted by the Council at its forty-ninth ordinary session on October 29, 2015 UPOV/EXN/NUL/2 page 2 TABLE OF CONTENTS PREAMBLE ......................................................................................................................................................................... 3 SECTION I: PROVISIONS ON THE NULLITY OF THE BREEDER’S RIGHT ................................................................... 4 SECTION II: CERTAIN ASPECTS OF THE PROVISIONS ON THE NULLITY OF THE BREEDER’S RIGHT .................. 5 UPOV/EXN/NUL/2 page 3 EXPLANATORY NOTES ON THE NULLITY OF THE BREEDER’S RIGHT UNDER THE UPOV CONVENTION PREAMBLE 1. The purpose of these Explanatory Notes is to provide guidance on the “Nullity of the Breeder’s Right”under the International Convention for the Protection of New Varieties of Plants (UPOV Convention) . The only binding obligations on members of the Union are those contained in the text of the UPOV Convention itself, and these Explanatory Notes must not be interpreted in a way that is inconsistent with the relevant Act for the member of the Union concerned. 2. Section II provides guidance on certain aspects of the provisions on the nullity of the breeder’s right contained in Article 21 of the 1991 Act of the UPOV Convention and Article 10(1) and (4) of the 1978 Act of the UPOV Convention. UPOV/EXN/NUL/2 page 4 SECTION I: PROVISIONS ON THE NULLITY OF THE BREEDER’S RIGHT 3. The provisions on the nullity of the breeder’s right contained in Article 21 of the 1991 Act of the UPOV Convention and Article 10 (1) and (4) of the 1978 Act of the UPOV Convention are reproduced below: Article 21 of the 1991 Act of the UPOV Convention Article 21 Nullity of the Breeder’s Right (1) [Reasons of nullity] Each Contracting Party shall declare a breeder’s right granted by it null and void when it is established (i) that the conditions laid down in Articles 6 or 7 were not complied with at the time of the grant of the breeder’s right, (ii) that, where the grant of the breeder’s right has been essentially based upon information and documents furnished by the breeder, the conditions laid down in Articles 8 or 9 were not complied with at the time of the grant of the breeder’s right, [1]or (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. [2] (2) [Exclusion of other reasons] No breeder’s right shall be declared null and void for reasons other than those referred to in paragraph (1) . Article 10 of the 1978 Act of the UPOV Convention Article 10 Nullity [and Forfeiture] of the Rights Protected (1) The right of the breeder shall be declared null and void, in accordance with the provisions of the national law of each member State of the Union, if it is established that the conditions laid down in Article 6(1)(a) and (b) were not effectively complied with at the time when the title of protection was issued. [􀁄][3] (4) The right of the breeder may not be annulled [or become forfeit] except on the grounds set out in this Article. 1 2 3 There is no corresponding provision to Article 21(1)(ii) of the 1991 Act in the 1978 Act. There is no corresponding provision to Article 21(1)(iii) of the 1991 Act in the 1978 Act. Provisions in paragraphs 2 and 3 of Article 10 of the 1978 Act concern the forfeiture of the rights protected (see Explanatory Notes on the Cancellation of the Breeder’s Right under the UPOV Convention (document UPOV/EXN/CAN)) . UPOV/EXN/NUL/2 page 5 SECTION II: CERTAIN ASPECTS OF THE PROVISIONS ON THE NULLITY OF THE BREEDER’S RIGHT 4. The use of the word “shall” clarifies that the competent authority

FAQs

What is the purpose of these Explanatory Notes?

They provide guidance on the “Nullity of the Breeder’s Right” under the UPOV Convention while ensuring that they are not interpreted in a way inconsistent with the relevant Act applicable to the member concerned.

On what grounds must a breeder’s right be declared null and void under the UPOV Acts?

Under the 1991 Act, nullity applies when statutory conditions for grant were not met (Articles 6 or 7, or relevant information/document conditions in Articles 8 or 9), or when the right was granted to an ineligible person unless transferred. Under the 1978 Act, nullity applies if conditions in Article 6(1)(a) and (b) were not effectively complied with at the time the protection title was issued.

What distinguishes nullity from cancellation, and what is the effect in time?

Nullity means the right was invalid and should not have been granted in the first instance, while cancellation refers to a right that was valid until the cancellation date. In principle, nullity has retroactive effects, although practical retroactivity and remedies depend on the member’s relevant legislation and possibly contractual arrangements.

Aug 23, 2026

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