Many developing countries have started to introduce protection laws for plant varieties following the TRIPs Agreement of the World Trade Organisation (TRIPs = Trade Related Aspects of Intellectual Property Rights). Few countries have actually implemented their PVP-laws, but these are likely to come into effect during the coming years. Since also national (public) breeding programmes are likely to seek protection under these laws, more and more materials in PVS-initiatives will be liable to be affected. The implementation of Plant Variety Protection is depending on the national law and their implementation and likely to have a negative impact on the spread of varieties from a PVS programme unless the programme has an explicit license from the breeder.

The UPOV Convention was developed in 1961, but has been revised several times, most recently in 1978 and 1991. It provides for PBRs or PVP \ over new varieties of plants. Since 1998, when UPOV 1991 entered into force, new parties to the Convention must adhere to the 1991 version, rather than that of 1978. Read more on the differences between UPOV 1978 and 1991. There are significant differences between UPOV 1978 and UPOV 1991. UPOV 1991 generally creates a higher standard of protection for PBRs. One difference is that under the 1978 Act, a breeder is entitled to protection through being the "discoverer" of the new plant variety, whereas under the 1991 Act, mere discovery is not sufficient. Nonetheless, the criteria for “novelty” appear to emphasise commercial considerations, rather than testing for inventiveness.

Under UPOV 1978, it was possible for farmers to practice the custom of saving and exchanging part of their harvest so as to have seed to plant for the following season, the so-called "farmers privilege". This is not expressly provided for under UPOV 1978, but its wording did not prohibit it, and this was the practice in many Member countries to the extent that significant ‘brown bagged’ seed could be traded.

Under the 1991 Act, governments are expressly provided the discretion to decide whether or not to restrict a breeder's right:

“In order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting... the protected variety...
Indeed, some governments have decided to use this provision to enshrine the “farmer’s privilege” for all or for a limited number of crops and for all or for certain categories of farmers.”

The 1991 Act also provides for exceptions for (a) acts done privately and for non-commercial purposes, (b) acts done for experimental purposes and (c) acts done for the purpose of breeding other varieties, subject to specific conditions. Furthermore, it allows for the restriction of PBRs in the public interest.

Another important development is the rule on "essential derivation" (EDV) in the 1991 Act. Under the 1978 Act any protected variety could be freely used as a source of initial variation to develop further varieties, so that such further varieties can be protected by the subsequent breeder without any obligation towards the breeder of the initial variety. Under Article 14(5) the 1991 Act, the essentially derived variety, which meets the normal protection criteria, may be the subject of protection, but it cannot be exploited without the authorisation of the breeder of the original variety. Some authors have expressed the concern that the determination of whether the new varieties are essentially derived from an earlier one is likely to be done through agreement between the breeders or litigation, rather than by the examination process. If this is the case, the relative bargaining strength of the breeders may become a factor that is to the disadvantage of developing countries.

Finally, under UPOV 1978, any varieties eligible for PBRs protection could not be patented, whereas UPOV 1991 is silent on this question. As such, the possibility for double protection for plant varieties exists.

For more information on the difference between the 1991 and 1978 version click here. Until recently, all seed production in Kenya was the responsibility of the parastatal Kenya Seed Company (KSC), and no other commercial seed operations were allowed. KSC had exclusive rights to all varieties of the Kenya Agricultural Research Institute (KARI) and also established its own breeding program, principally for maize (and also wheat, pasture grass and sorghum). The policy shifted in the early 1990s, allowing the entry of MNCs (including from South Africa and Zimbabwe) selling hybrid maize (and to a lesser extent sorghum and sunflower). In addition, the policy change encouraged the development of a domestic seed industry. There are currently three seed companies (besides KSC) with their own breeding programs and several other small companies that produce and market seed of public varieties. KARI and KSC signed an agreement providing royalties to KARI for the use of varieties currently under KSC production, although some of the details of that agreement are still in doubt, including the degree to which KSC has exclusive access. KARI now assigns rights to its new varieties through a tendering process, in which KSC is expected to compete with other firms.

The legal framework for IPR in Kenya was established in the Seeds and Plant Varieties Act of 1977 which was revised in 1991. Further details were defined in a supplementary issue of the Act in 1994. An office for administering PVP began functioning in 1998 and Kenya acceded to the UPOV convention in 1999. Much of the pressure for joining UPOV came from the horticultural industry, and the vast majority of the early applications for PVP in Kenya were from foreign breeders. A decision in 2001 provided an amnesty for extant public varieties, allowing them to be eligible for a full term of protection. This occasioned a great increase in PVP applications for public varieties, but the provision is controversial and has not yet been gazetted. Such varieties have thus not been issued with protection certificates. More recently, there is a move to make Kenya compliant with UPOV 1991; issues of particular importance are a more restrictive definition of essentially derived varieties (especially related to flower mutants and the possibility of the addition of a transgene to a protected variety) and greater control over farmer saving of seed of protected varieties (particularly the widespread practices of saving and local sale of wheat seed). The administration of PVP was initially assigned to KARI but in 1998 it was transferred to the recently established Kenya Plant Health Inspectorate Service (KEPHIS) which also administers plant quarantine, crop variety release, seed quality control and certification, and pesticide residue testing.