Plant Breeders Rights and Brexit – Deal or no Deal

Thursday 28 February 2019

As the deadline for the UK’s exit from the European Union approaches, the EU’s Community Plants Variety Office (CPVO) has issued a notice on Community Plant Variety Rights (CPVR) and Plant Breeder’s Rights (PBR), advising right holder and applicants on the fate of these rights in the event of no deal.

Plant Breeders Rights and Plant Variety Rights

Plant Breeder’s Rights (UK) or Community Plant Variety Rights (EU) are both forms of Intellectual Property (IP) that give plant breeders protection for a specific plant variety. The essence of plant breeding is the discovery or creation of genetic variation in a plant species and the selection of plants with desirable traits that can be inherited in a stable fashion. A plant variety must therefore have the following features:

  • Novelty - it must not have been commercialized for more than one year in the country of protection;
  • Distinct - the characteristics must be different to other plants within the same species;
  • Uniform - all plants within that variety should share the same characteristics that are consistent from plant to plant;
  • Stable - following repeated propagation, the plant variety should remain unchanged throughout all generations.

The right lasts for 25 years (30 years for trees, vines and potato varieties) and prevents others using the plant variety for production, sale, modifying for propagation, stocking or importing/exporting, without the right holder’s permission.

Currently, a PBR can be obtained nationally through the UK’s Plant Variety Rights Office, a part of the Animal and Plant Health Agency (APHA). A CPVR can be obtained through the Community Plant Variety Office - this provides protection across all member states of the European Union.

It is important to note that PBRs and CPVRs on one hand and the patent system on the other hand are two distinct forms of IP.

Deal or No Deal

On the 19th February 2019, the CPVO published a notice with advice in the event of a no deal Brexit. This notice was based on information provided to the Office by the UK Department for Environment Food and Rural Affairs (DEFRA). According to this notice, in a no deal scenario, CPVRs granted by 29th January 2019 will continue to be protected in the UK. The right holder will not be required to take any action and the rights will automatically be transferred under UK legislation into UK Plant Breeder’s Rights [1].

For any pending CPVR applications, applicants will need to make another application to APHA to obtain a Plant Breeder’s Right under UK Law. This application will use the same priority date and distinctness, uniformity and stability (DUS) test. Therefore, for any applications pending with the CPVO which require protection in the UK, a new application should be made [1] and [2].

The details of how this policy would be implemented are not yet clear.

For new varieties, in a no deal scenario, breeders would need to make two applications, where currently they make one, to achieve the same geographic coverage, as separate protection would be required in the UK and the EU. For protection in the UK, an application would need to be made to APHA, following the normal process and payment of fees for UK plant variety rights. For protection in the EU, an application would need to be made to the Community Plant Variety Office, also following the normal process and payment of fees [2]. If a deal is agreed, the content of the deal will determine the consequences for applicants and holders of Community plant variety rights and UK rights. The next few weeks may provide further clarity for right holders.



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