CONVENTION FOR THE PROTECTION OF PLANTSSenate Consideration of Treaty Document 104-17
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[Senate Treaty Document 104-17] [From the U.S. Government Printing Office] 104th Congress 1st SENATE Treaty Doc. Session 104-17 _______________________________________________________________________ CONVENTION FOR THE PROTECTION OF PLANTS __________ MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS OF DECEMBER 2, 1961, AS REVISED AT GENEVA ON NOVEMBER 10, 1972, ON OCTOBER 23, 1978, AND ON MARCH 19, 1991, AND SIGNED BY THE UNITED STATES ON OCTOBER 25, 1991. September 5, 1995.--Treaty was read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. LETTER OF TRANSMITTAL ---------- The White House, September 5, 1995. To the Senate of the United States: I transmit herewith for Senate advice and consent to ratification the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as Revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991, and signed by the United States on October 25, 1991 (hereinafter ``the 1991 Act of the UPOV Convention''). I transmit for the information of the Senate, the report of the Department of State with respect to the Convention. Ratification of the Convention is in the best interests of the United States. It demonstrates a domestic commitment to effective protection for intellectual property in the important field of plant breeding. It is also consistent with United States foreign policy of encouraging other countries to provide adequate and effective intellectual property protection, including that for plant varieties. I recommend, therefore, that the Senate give early and favorable consideration to the 1991 Act of the UPOV Convention and give its advice and consent to ratification subject to a reservation under Article 35(2), which allows parties to the existing Convention (the 1978 Act) to retain their present patent systems for certain varieties of plants. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, May 10, 1995. The President, The White House. I have the honor to submit to you the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23, 1978 and on March 19, 1991, and signed by the United States on October 25, 1991 (hereinafter ``the 1991 Act of the UPOV Convention''). I recommend that the 1991 Act of the UPOV Convention be transmitted to the Senate for its advice and consent to ratification, subject to a reservation under Article 35(2) of the 1991 Act, which allows states party to the 1978 Act to retain their present patent systems for certain varieties of plants. The United States is a party to the 1978 Act of the International Convention for the Protection of New Varieties of Plants (33 UST 2703; TIAS 10199), which was concluded on October 23, 1978, and entered into force on November 8, 1981. That Act was the second revision of the original Act, which was done on December 2, 1961 and amended on November 10, 1972, and which established the International Union for the Protection of New Varieties of Plants. Member States of the Convention constitute the International Union for the Protection of New Varieties of Plants (the UPOV Union), whose objective is to promote the protection of the rights of plant breeders in new plant varieties. At present, the UPOV Union is composed of 27 member States. Apart from two States (Belgium and Spain) that have adhered only to the 1961 Act, as revised in 1972, all other member States are presently bound by the 1978 Act of the UPOV Convention. The 1991 Act is not yet in force. Several considerations prompted the member States to revise the Convention at a Diplomatic Conference held in Geneva, Switzerland in March of 1991. Those considerations were: 1) recognition that the protection offered to breeders under previous Acts of the Convention was not adequate; 2) the need for the Convention to reflect technological changes in the breeding of new plant varieties; and 3) the need to clarify certain provisions of the 1978 Act. Ten member States of UPOV signed the 1991 Act at the conclusion of the Conference. The 1991 Act remained open for signature by UPOV member States until March 31, 1991, by which time 16 States, including the United States, had signed the Convention. Article 37 of the 1991 Act provides that it will enter into force one month after five States have deposited their instruments of adherence, provided that at least three of them are present member States of UPOV. After entry into force of the 1991 Act, the 1978 Act of the Convention will be closed to further accessions, except that developing countries may accede to the 1978 Act until December 31, 1995. To date, no State has deposited its instrument of adherence to the 1991 Act, although many UPOV member States are actively involved in revising their plant variety protection laws to bring them into conformance with the 1991 Act, thus permitting their adherence to that Act. In the United States, implementing legislation was enacted as Public Law 103-349, on October 6, 1994. The main aim of the Convention is to promote the protection of the rights of the breeder in new plant varieties. In that regard, the Convention not only requires member States to provide protection for new varieties of plants, but also contains explicit and detailed rules on the conditions and arrangements for granting protection. Further, it prescribes the scope of protection, including possible restrictions and exceptions thereto, establishes, with some limitations, the principle of national treatment for plant breeders from other member States, and provides for a right of priority. The Convention, as revised by the 1991 Act, would afford additional protection to plant breeders, as follows: First, the 1991 Act requires Contracting Parties, after certain transitional periods, to protect varieties of all genera and species of the plant kingdom. Second, the 1991 Act redefines a breeder's right to cover, among other things, the production of a variety's propagating material by others for any purpose. The 1991 Act also expressly permits member States to exclude from the reach of the breeder's right, the practice of farmers to save seed. Third, the 1991 Act extends breeders' rights to include harvested material of the protected variety. Fourth, the 1991 Act puts an end to the common practice, permitted by the present Convention, of using protected varieties to derive and freely commercialize other varieties that, although differing to some degree, maintain the essential characteristics of the initial variety. Finally, the 1991 Act is silent regarding the title of protection under which a breeder's right may be granted. This would afford member States the freedom to provide protection for plant varieties through patents and sui generis breeders' rights, thus affording them greater flexibility in determining how to protect new plant varieties most effectively. These and other features of the 1991 Act would enhance the protection afforded to breeders of new plant varieties not only in the United States, but also in those future member States where patent protection for plant varieties is not now obtainable, and in present member States where protection of plant breeders' rights is either weak or unavailable for a significant number of plant species and genera. An analysis is enclosed, explaining the various Articles of the 1991 Act of the UPOV Convention, including their differences from those of the 1978 Act. Prompt ratification of the 1991 Act of the UPOV Convention will demonstrate the United States commitment to effective protection for intellectual property in the area of new plant variety development. Ratification of this Convention is consistent, therefore, with United States foreign policy of encouraging other countries to provide adequate and effective protection for intellectual property generally, and for new plant varieties in particular. I recommend, therefore, that the 1991 Act of the UPOV Convention be transmitted to the Senate as soon as possible for its advice and consent to ratification, subject to a reservation under Article 35(2), which allows parties to the 1978 Act to retain their present plant patent systems for certain varieties of plants. Respectfully submitted, Peter Tarnoff. Enclosure: As stated. Analysis of the 1991 Act of the International Convention for the Protection of New Varieties of Plants chapter I: Definitions This chapter has only one article, containing definitions that establish a number of key legal concepts. Article 1 has no counterpart in the 1978 Act of the Convention. Of the eleven definitions contained in Article 1, the most important are those explaining the meaning of who may be considered a ``breeder'', and what is a ``variety.'' For purposes of the Convention, a breeder may be any one of several persons. It may be the person who has bred the variety, or discovered and developed it, unless the variety was established by that person while in the employ of another, or under commission. In that case, it is left to national law to determine the circumstances under which an employer will be entitled to be recognized as the breeder. Further, the successor in title of the actual breeder, or his employer, is also recognized, for purposes of the Convention, as the breeder of the variety. A definition of great significance in the 1991 Act is that of ``variety.'' In framing that definition, a clear distinction was established between what constitutes a variety as such and a variety that meets the technical criteria for protection under the Convention. In that respect, a variety, under the definition, is a plant grouping that is distinct from other varieties whose component individuals display certain common characteristics and that retains its identity from generation to generation, regardless of whether the precise conditions for obtaining a breeder's right are met. This narrow difference between the definition of ``variety'' and what is considered to be a ``protectable variety'' ensures that the former is taken into account when assessing distinctness of a variety for which protection is sought. Other definitions in Article 1 explain the meaning of a breeder's right, and terms such as ``Contracting Party,'' ``territory,'' ``authority,'' ``Union,'' and the various Acts of the Convention. chapter ii: general obligations of the contracting parties This Chapter contains Articles 2, 3 and 4 and deals with the Contracting Parties' basic obligations under the Convention, including treatment of each others' nationals and to what genera and species of the plant kingdom the protection is to be extended. Article 2 simply states that each Contracting Party ``shall grant and protect breeders' rights''. In that respect, the 1991 Act is silent on the form of breeders' rights to be provided and no longer contains the provision of Article 2 of the 1978 Act prohibiting a member State from providing protection by way of patents, as well as in the form of sui generis breeders' rights, for the same botanical genus or species. This improvement gives Contracting Parties the freedom to provide either, or both, types of protection for plant varieties. Article 3 corresponds to Article 4 of the 1978 Act and establishes the parameters of protection within the plant kingdom that member States are required to provide. Earlier Acts of the UPOV Convention recognized, but did not require, that the system be applied to all botanical genera and species. This general obligation led most member States to establish plant variety protection only for crop genera that they considered to be of economic importance to them. By contrast, Article 3 of the 1991 Act requires that existing member States protect all plant genera and species five years after adhering to the 1991 Act and permits newly adhering States ten years to achieve this result. Thus, it is intended that over time a worldwide UPOV system of plant protection will emerge that requires all member States to protect the whole of the plant kingdom. This change has important consequences, for example, in relation to varieties of certain tropical plant species that are not presently protected in temperate member States but whose harvested materials are imported from other countries. Thus, for example, if Iceland joined the 1991 Act of the UPOV Convention, a U.S. breeder of a particular new variety of oranges could eventually obtain protection there and could take action against unauthorized imports of that orange variety into Iceland from a country in which the U.S. breeder could not or did not obtain plant variety protection. Article 4 addresses the treatment that must be afforded by a Contracting Party to nationals and residents from another Contracting Party. In that respect, the 1991 Act departs from the 1978 Act, which permits a UPOV member State to discriminate against foreign breeders by limiting their rights of protection in the member State to those afforded in their own country. Under the 1991 Act, a Contracting Party must treat nationals and residents of another Contracting Party no less favorably, for purposes of granting and protecting breeders' rights, than its laws accord its own nations. chapter iii: conditions for the grant of the breeder's right This Chapter contains Articles 5 to 9, and details the criteria that must be met by a plant variety to be eligible to be the subject of a breeder's right. Article 5 states that a breeder's right shall be granted when a plant variety meets the criteria of novelty, distinctness, uniformity and stability. In that regard, Article 5 presents the conditions for protectability in a clearer fashion than the wording of comparable Article 6 of the 1978 Act of the Convention. The Article also provides that a Contracting Party may not subject the grant of a breeder's right, as defined by the Convention, to any further or different conditions, other than the requirement that the plant variety be designated by a denomination. Article 6 defines that novelty under this Convention refers to the prior commercialization of the variety, rather than novelty in the sense of patent law. In that respect, to lose the recognition of novelty, a breeder must sell or dispose of propagating or harvested material of the variety for the purposes of exploiting the variety for more than one year in the territory of the Contracting Party in which the application for protection has been filed, or for more than four years if the application was filed in another Contracting Party. The latter time period is extended to six years in the case of trees and vines. The mandatory one-year grace period provided by Article 6 of the 1991 Act was only optional under Article 6 of the 1978 Act. The periods of foreign commercialization permitted without loss of novelty have remained the same in the 1978 and 1991 Acts of the Convention. Further, Article 6(3) of the 1991 Act permits Contracting Parties that are members of the same intergovernmental organization (for example, the European Communities), to assimilate acts done on the territory of one member State to acts done on the territories of all member States of that organization. This option appears for the first time in the 1991 Act, as previous Acts of the convention did not permit adherence by intergovernmental organizations. Article 7 deals with the requirement of a variety's distinctness and simply requires that a variety be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time the application for the plant breeder's right was filed. Thus, the requirement of the 1978 Act, that distinction lie in the presence of ``one or more important characteristics'' has been dropped due to the ambiguity of that requirement as to whether ``importance'' was equivalent to economic merit. In addition to this, Article 7 provides a non-exhaustive list of examples that would be considered ``common knowledge.'' Article 8 and 9 address the criteria of a variety's uniformity and stability. Although reworded from the corresponding provisions in paragraph (c) and paragraph (d) of Article 6 of the 1978 Act, no change in substance was intended. chapter iv: application for the grant of the breeder's right This Chapter contain Articles 10 to 13, and provides details regarding an application's filing, examination and effect. Article 10 decrees that an adherent to the Convention may not restrict the choice of the breeder in which particular Contracting Party to file the first application for a breeder's right. This provision, as well as the ones relating to the independence of applications in different Contracting Parties, are substantively unchanged from the requirements in article 11 of the 1978 Act. Article 11 regulates the right of priority that may be claimed in an application filed in one Contracting Party on the basis of an earlier application filed in another Contracting Party. The provisions of Article 11 differ from those of Article 12 of the 1978 Act, in that the 1991 Act is more specific in permitting the claim of priority only to be made in an application for a breeder's right, although the basis for such claim may be an application for the protection of a variety, including a patent application. The 1991 Act also permits authorities with whom the subsequent application was filed, to require the submission of samples or other evidence proving that the variety claimed by the earlier and the subsequent applications is the same. This requirement is in addition to that contained in article 12(2) of the 1978 Act, requiring the furnishing of certified copies of the earlier application to substantiate the claim of priority. Article 12 deals with the examination of the application for a breeder's right and corresponds substantially to provisions in Article 7 of the 1978 Act. It does, however, emphasize the options that are open to an examining authority, including that of accepting test results already established by others, which implicitly includes the breeder. Article 13 obligates Contracting Parties to provide provisional protection for plant varieties during the period between the filing or publication of an application and the grant of the breeder's right. Although provisional protection is also provided in Article 7(3) of the 1978 Act, it is only optional in nature there. The 1991 Act, however, permits Contracting Parties to provide provisional protection only in instances where alleged infringers were notified by the breeder that an application on the variety in question has been filed. chapter v: the rights of the breeder This Chapter contains Articles 14 to 19, dealing with the substantive rights that a breeder derives from a grant of protection and the instances in which a breeder's right is either restricted or exhausted altogether. In this respect, the 1991 Act materially enhances the rights of a breeder when compared to those provided by the 1978 Act of the Convention. Article 14 enumerates in paragraph (1) seven specific acts that, in respect of the propagating material of the protected variety, require authorization from the breeder. They are: (1) production or reproduction, (2) conditioning for the purpose of propagation, (3) offering for sale, (4) selling or other marketing, (5) exporting, (6) importing, and (7) stocking for any of the previously mentioned acts. The 1978 Act, in Article 5, only provides protection against the unauthorized production of a variety's propagating material for purposes of commercial marketing, as well as its being offered for sale or being marketed without authorization by the breeder. In addition, paragraphs (2) and (3) of Article 14 extend protection also to a variety's harvested material and to products made directly from the harvested material. However, harvested material is covered only if the breeder did not have a reasonable opportunity to exercise his rights of exclusion in relation to the propagating material of the protected variety, and products are only encompassed if the breeder could not exert his rights in the harvested material. Further, the provisions of Article 14(3), relating to the exercise of a breeder's right with respect to products made from the harvested material of the protected variety, are not mandatory and may be instituted by a Contracting Party on an optional basis. A similar provision contained in Article 5(4) of the 1978 Act permits member States to extend protection to the marketed product of a protected variety on a reciprocal basis. Another optional addition to the breeder's right, similar to Article 5(4) of the 1978 Act, is provided in Article 14(4), which permits Contracting Parties to provide that acts, in addition to those referred to in Article 14(1), shall require the breeder's authorization. This paragraph introduces a certain amount of flexibility by permitting the expansion of protection beyond the list of acts enumerated in Article 14(1) without, however, the option of requiring reciprocity. Article 14(5) clarifies that the scope of protection of the breeder's right extends also to varieties (1) that are not clearly distinguishable from the patented variety, (2) to varieties whose production requires the repeated use of the protected variety, and, most importantly, (3) to varieties that were essentially derived from the protected variety. Forbidding unauthorized, repeated use of a protected variety to achieve another variety is already part of the 1978 Act. The other two provisions, however, are new features of the 1991 Act. Although it may have been taken for granted that varieties not clearly distinguishable from the protected variety should be folded into the breeder's right, member States of UPOV tended to differ in their application of that concept and, hence, the clarification in the 1991 Act is useful. Extending protection to cover essentially derived varieties covers rival breeding practices in which a breeder typically induces minor changes in a protected variety resulting in another variety that, while distinct, retains the essential characteristics of the initial variety. Although functionally equivalent, this variety was heretofore recognized as independent and no reward was due the breeder of the initial variety whose efforts resulted in all the beneficial characteristics of the essentially derived variety. By including essentially derived varieties within the metes and bounds of the breeder's right concerning the initial variety, the 1991 Act considerably enhances this right by controlling ``cosmetic breeding'' that borders on piracy. Article 15 details exceptions to the breeder's right by adding acts done privately and for non-commercial purposes, as well as those done for the purpose of experimentation, to the exception already contained in Article 5(3) of the 1978 Act, namely that the breeder's right does not reach acts done for the purpose of breeding other varieties. Article 15 narrows, however, the breeding exception contained in the 1978 Act by eliminating the provision that varieties obtained from other varieties may freely be marketed without the authorization of the breeder of the initial variety. In that sense, the exceptions in Article 15(1) to the breeder's right were adapted to balance the extension of the breeder's right by Article 14(5), discussed above. Article 15 also provides for another exception to the breeder's right, albeit in optional form. Contracting Parties may restrict the breeder's right to permit farmers to save seed obtained from the use of a protected variety on their holdings for further propagation purposes on their own holdings. It does not, however, permit farmers to sell or market such saved seed for purposes of propagation. The ``saved seed'' exemption is an explicit expression of the implicit creation of this exemption by the wording of Article 5(1) of the 1978 Act, which provides that the breeder's authorization is only required for the production of propagating material ``for purposes of commercial marketing.'' Thus, if saved propagating material is not sold as such but is only replanted, that act falls outside the scope of protection offered by the 1978 Act. By explicitly stating this exception to the breeder's right, the 1991 Act clarifies this principle, while also narrowing the exception, given its optional nature. Article 16 specifies under what circumstances a breeder's right becomes exhausted. Basically, an authorized vendor of material of the protected variety may not control by means of the breeder's right what the buyer does with that bought material, or with any crop or harvest derived from such material. However, certain actions by a buyer that would be inconsistent with the purpose for which the plant variety material was sold in the first place, are not included in the exhaustion of rights and would represent an infringement. These involve acts of further propagation of the variety or the export of propagating material of the variety to a country that does not protect plant varieties of the genus or species to which it belongs. It is permitted, however, to export plant variety material to such a country for final consumption purposes. The provisions of Article 16 are not reflected in any earlier Acts of the UPOV Convention. Article 17 provides a further optional restriction by Contracting Parties on the breeder's right. In accordance with this Article, a Contracting Party may, in addition to other restrictions provided for in the Convention, limit a breeder's exclusionary rights, for reasons of public interest. However, where such restriction assumes the form of a compulsory license in favor of a third party, the Contracting Party is obliged to ensure that the breeder receives equitable remuneration. The concept expressed by Article 17 is already contained in Article 9 of the 1978 Act. Article 18 provides that a breeder's right is independent of any measures taken by a Contracting Party to regulate the production, certification and marketing of material of a variety. This concept is already expressed in Article 14 of the 1978 Act. Article 19 revises the minimum periods of protection for varieties provided for under Article 8 of the 1978 Act (18 years for trees and vines, and 15 years for all other species) to periods of 25 years for trees and vines, and 20 years for all other species. chapter vi: variety denomination This chapter, consisting only of Article 20, is similar to Article 13 of the 1978 Act. It provides that a variety must be designated by a denomination that will be its generic name. Article 20 also provides certain guidelines for the submission of variety denominations to examining authorities and for their use and effect. chapter vii: nullity and cancellation of the breeder's right This chapter consists of two articles and addresses the specific and only grounds on which a breeder's right may be revoked or canceled. Article 21 provides for three situations where a breeder's right must be declared null and void ab initio. These are where 1) the protected variety is shown not to have been novel or distinct at the date of grant, 2) the protected variety was granted a breeder's right on the basis of incorrect information by the breeder with respect to uniformity or stability, or 3) the breeder's right was granted to a person not entitled to it. The obligation to revoke a breeder's right on the basis of lack of novelty or distinctness was already established in Article 10 of the 1978 Act. Article 22 permits the cancellation of a breeder's right if a variety proves to be no longer uniform or stable. A Contracting Party may also cancel a breeder's right on the basis of a breeder's (1) refusal to submit information necessary to verify the maintenance of the variety, (2) failure to pay fees to keep the breeders's right in force, or (3) failure to comply with certain requirements concerning the furnishing of a suitable variety denomination. The option to cancel a breeder's right on the basis of a refusal to submit information regarding the variety's maintenance or failure to pay appropriate fees was also already provided for in Article 10(3) of the 1978 Act. However, the mandatory cancellation of the breeder's right under Article 10(2) of the 1978 Act, on the basis of a breeder's inability to provide propagating material capable to produce the variety with its original characteristics, was not maintained in the 1991 Act of the Convention. Chapter VIII: The Union This Chapter comprises Articles 23 to 29, defining the status of Contracting Parties, the legal status and seat of the International Union for the Protection of New Varieties of Plants, the Union's organs and their tasks, and the Union's finances, as well as its official languages. For the most part, these provisions are substantively the same as those contained in the 1978 Act of the Convention. There are, however, some important changes. Article 23 states that Contracting Parties shall be members of the Union, and essentially repeats the provision of Article 1(2) of the 1978 Act. Article 24 defines the status of the Union, repeating the provisions of Articles 1(3) and 24 of the 1978 Act. Article 25 restates Article 15 of the 1978 Act, concerning the Union's organs, namely the Council and the Office of the Union. Article 26 details the composition and functions of the Council, by consolidating provisions in that respect contained in Articles 16 to 22 of the 1978 Act of the Convention. Two additional tasks for the Council have been added, namely the establishment of its rules of procedure and the establishment of the Union's administrative and financial regulations. A further change was made in the voting procedure of members of the Union in view of the change in Article 34, permitting intergovernmental organizations to become parties to the 1991 Act of the Convention. In that regard, Article 26(6) provides that each member State of the Union has one vote in the Council and that any Contracting Party that is an intergovernmental organization may, in matters within its competence, cast the votes of all its member States, unless they exercise their own rights to vote. As a consequence, an intergovernmental organization may cast only the votes of its member States if no member State casts a vote. This arrangement preserves the integrity of the voting procedure and avoids the grant of a separate vote to an intergovernmental organization in addition to the votes of its member States on whose territory the intergovernmental organization operates. Article 27 states the tasks of the Office of the Union, provides for its staffing, and details the duties of the Secretary-General of the Union, virtually in identical manner as contained in Article 23 of the 1978 Act. Article 28 adds Spanish as an official language of the Union, in addition to English, French, and German, already provided for by Article 28 of the 1978 Act. Article 29 details the financial arrangements of the Union, which are substantially the same as those provided in Articles 25 and 26 of the 1978 Act, except for two instances. Article 29 reduces the number of years from two to one in which a member State may be in arrears in the payment of its assessed contributions, before losing its right to vote in the Council. Further, in view of the fact that an intergovernmental organization as a Contracting Party has no vote in its own right, it is not obliged to pay contributions, although it is not discouraged from doing so. Chapter IX: Implementation of the Convention This Chapter contains Articles 30 to 32, and addresses the means by which each Contracting Party is obliged to implement the Convention, as well as how member States bound by different Acts of the Convention relate to each other in the application of such Acts. Article 30 addresses the implementation of the Convention and is substantively the same as Article 30 of the 1978 Act, except for the deletion of a reference to the possibility of concluding cooperative examining contracts between member States, which was deemed to be superfluous. Article 31 regulates the relations between Contracting Parties and States bound by earlier Acts of the UPOV Convention and is substantively the same as Article 34 of the 1978 Act, which regulates such relations between adherents to the Acts of 1961 and 1978, respectively. Article 32 repeats the possibility of special agreements to be concluded among members of the Union regarding the protection of plant varieties, as already contained in Article 29 of the 1978 Act of the Convention. chapter x: final provisions This Chapter contains Article 33 to 42, and addresses miscellaneous aspect of Convention procedures. Article 33 provides for signature of the Convention until March 31, 1992, by States that are already members of the Union. The United States signed the Convention on October 25, 1991. Article 34 details the means of becoming party to the Convention and permits the accession of intergovernmental organizations, under certain circumstances, in addition to States. Article 35 provides for the possibility of a reservation to the 1991 Act of the Convention only by a State that is a party to the Act of 1978 and that provides protection for asexually reproduced varieties by means other than a breeder's right. Upon notifying the Secretary-General at the time of depositing its instrument of ratification, such State is permitted to continue protection of asexually reproduced varieties without applying the obligations and requirements of the 1991 Act to these varieties. This reservation is specifically intended to permit the United States to continue its present system of providing protection for asexually reproduced varieties by way of plant patents under sections 161 et seq. of title 35, United States Code, rather than plant breeders' certificates under section 2321 et seq. of title 7, United States Code. A similar, but less comprehensive reservation is already contained in Article 37 of the 1978 Act of the Convention. Article 36 provides for the communication among Contracting Parties regarding each others' legislation concerning breeders' rights, the genera and species initially protected upon becoming party to the 1991 Act and the dissemination of such information. These provisions are substantively the same as those contained in Article 35 of the 1978 Act. Article 37 details the circumstances under which the 1991 Act of the Convention comes into force. It requires the deposit of the appropriate instruments of five States, of which at least three must already be members of the Union. One month after such deposit, the 1991 Act of the Convention comes into force and any State or intergovernmental organization that subsequently adheres to this Convention will be bound one month after depositing its instrument. Article 37 also provides that accession to the 1978 Act of the Convention will no longer be possible after entry into force of the 1991 Act, except for developing countries that may accede to the 1978 Act until December 31, 1995, even if the 1991 Act were to come into force before then. Article 38 provides the procedures for revising the Convention and is identical with Article 27 of the 1978 Act, except for the majority required to adopt a revision. The 1978 Act requires a majority of five-sixths of the member States to revise the Convention, while the present Article reduces this majority to three quarters. Article 39 repeats the procedures regarding the denunciation of the Convention, already contained in Article 41 of the 1978 Act, and adds the provision that denunciation of the 1991 Act of the Convention has the effect of also denouncing any earlier Acts by which the Contracting Party is bound. Article 40, like Article 39 of the 1978 Act, provides for the preservation of existing breeders' rights if a party adheres to the Convention. However, unlike the 1978 Act, which provides that existing rights not be affected, the 1991 Act provides that they not be limited, thus permitting an extension of existing rights, if so desired by a Contracting Party. Articles 41 and 42 provide information on original and official texts of the Convention, their establishment in other languages and the depositary functions of the Secretary- General. In substance these Articles are the same as Article 42 of the 1978 Act of the Convention.