Plant Variety Rights (PVRs), also known as Plant Breeders’ Rights (PBRs), are an important form of intellectual property for plant breeders seeking protection for their investment in the generation of a new variety of plant. As many patent offices, including the European Patent Office (EPO) and UK Intellectual Property Office (UKIPO), have provisions that exclude individual plant varieties from patent protection, PVRs represent a valuable asset for plant breeders in many countries.
The International Union for the Protection of New Varieties of Plants (UPOV) functions to “provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society”. Currently 78 countries have acceded to the UPOV convention. These countries have laws on plant variety protection in line with the 1991 Act of the Convention, which outlines several requirements that must be met by a new variety seeking PVRs.
In the European Union (EU) it is possible to obtain PVRs by applying to the Community Plant Variety Office (CPVO). Post-Brexit, only United Kingdom Plant Breeders’ Rights (UK PBRs) are available to those seeking protection for a new variety in the UK.
The variety must be novel and thus must not have been sold or otherwise disposed of to another for exploitation with the breeder’s consent within the territory in which rights are being pursued (i.e. within the EU for Community PVRs [CPVRs] or within the UK for UK PBRs) earlier than one year before the date of the application or outside the territory earlier than four years (or, in the case of trees or vines, six years) prior to the date of application. Reasonable precautions should have been taken by the applicant to ensure sales or comparable disposals have not taken place earlier than allowed. However, there are exclusions to novelty destroying disposals, e.g. disposals for statutory purposes, for production or storage or testing if not with commercial intent or at an officially recognised exhibition.
With regard to distinctiveness, the variety must be distinct compared to any other variety whose existence is common knowledge on the date of application, by virtue of expression of characteristics (i.e. a morphological or physiological characteristic). Common general knowledge extends to varieties that are entered in an official register, that are the object of a national or Community PVR, that are marketed or that have an entry in a reference collection or a precise description in a publication.
For a variety to be considered as uniform, expression of the characteristic which makes the variety distinct over other known varieties, as well as in respect of other characteristics specific to the variety description, should be uniform.
In order to be considered as stable, the variety should remain unchanged after repeated propagation.
An application consisting of an application form, technical questionnaire, proposal for a variety denomination and designation of procedural representative (if the applicant is not based in the EU) should be filed at the CPVO. (National applications can be made at national offices if rights in only particular states are required; see the consequences of Brexit on PVRs in the UK, below.)
A technical examination will be carried out for distinctiveness, uniformity and stability, if the application meets the official requirements. An examining authority will be selected and plant material will need to submitted. Testing of the plant material is then carried out (an interim report may be issued at the end of each growing period where there is more than one growing period for the variety). If a technical examination has already been carried out on the variety in a country of the EU or in a UPOV state, then that report may be considered sufficient for a decision on the application to be made.
“A technical examination will be carried out for distinctiveness, uniformity and stability, if the application meets the official requirements.”
Generally, a PVR prevents a third party without the authorisation of the PVR holder from:
1. Producing/reproducing a variety;
2. Conditioning a variety for the purpose of propagation;
3. Offering a variety for sale;
4. Selling a variety or carrying out other marketing of the variety;
5. Exporting or importing a variety from or into the territory covered by the PVRs;
6. Stocking a variety for any of these purposes.
There are, however, some exemptions/exceptions to these general rights.
The duration of a PVR must be at least 20 years from the date of grant (at least 25 years for trees and vines). A CPVR may last until the end of the 25th calendar year (or for trees, vines and potato varieties until the end of the 30th calendar year) following the year of grant. Annual fees are payable following the grant of the CPVR, the first of which is due within 60 days of the date of grant.
Pre-Brexit, breeders could seek protection of a new plant variety in the UK by filing an application for either a UK PBR or CPVR. However, since new legislation came into force on 1 January 2021, breeders seeking protection of their new plant variety in the UK will now need to file a separate application for a UK PBR to the Animal and Plant Health Agency (APHA). This can be completed in parallel with an application for a CPVR, wherein the requirements for filing a UK PBR are similar to that of a CPVR (guidance is provided here).
“Breeders seeking protection of their new plant variety in the UK will now have to file a separate application for a UK PBR to the Animal and Plant Health Agency (APHA).” Such parallel applications do not need to be filed simultaneously; it is possible to claim priority from the date of the first PVR application filed in a UPOV member state within twelve months of the first filing. For instance, if the first PVR application is a CPVR application, a parallel UK PBR application filed within 12 months of the CPVR application may claim priority from the CPVR, i.e. UK rights will start on the date (priority date) on which the parallel CPVR application was made, not the date on which UK PBR application was filed.
For UK-based breeders with no address in the EU, an EU representative will be required to apply for a CPVR and pay renewal fees following grant. For UK PBRs, annual fees are payable only for some crop types, at present (i.e. potatoes, herbage and swede).
Naming a new variety is an important aspect of the PVR application. You cannot get plant breeders’ rights without an approved name. If you are seeking to market a new plant variety across a number of territories, such as the UK and the EU, it may be advisable to consider a name that is suitable for all territories. While it is permissible to use a trademark or trade name when selling seeds of the plant, the name registered on the official register of the territory must be shown on the packaging. Thus, it may be advisable to seek guidance on use and registration of the variety name as a trademark.
New varieties will require registration to the UK National List if they are intended for marketing in the UK. Pre-Brexit, the Plant Variety Rights and Seeds Office would submit a new variety to the Common Catalogue, the European Commission’s list of plant varieties, to allow a new variety to be marketed in the EU. Notably, according to the Northern Ireland Protocol of the withdrawal agreement, the marketing Directives for plant propagating material continue to be applicable in Northern Ireland, thus (at present) all varieties which are listed in the EU Common Catalogue can be marketed in Northern Ireland.
According to the withdrawal agreement of the UK from the EU, CPVRs granted by the end of the transition period, 31 December 2020, automatically will have been converted into UK PBRs (at no additional cost). The date the CPVR was granted will be used to calculate the lifespan of the converted right and rights holders will need to submit a UK-based agent or address to the APHA before 31 December 2023.
For CPVRs still pending on 31 December 2020, the deadline for converting a CPVR into a UK PBR was 30 June 2021. Rights requiring conversion after this deadline in the UK will not be backdated to the submission date of the EU application (i.e. the applicant will not be able to claim priority from a pending CPVO application).
Plant varieties with EU registered rights that have been granted corresponding UK rights can be found recorded by APHA here. Further information in light of the withdrawal of the UK from the European Commission has been published by the European Commission here as well as the CPVO here.
If you require any advice or assistance with registering a PVR or associated trademark in the EU or UK, please contact us for further information.