Plant Variety Rights (PVRs), or Plant Breeder’s Rights (PBRs) as they are known in some countries, are intellectual property rights which protect new, distinct, uniform and stable plant varieties including genetically modified plant varieties.
Patents can be obtained for some plant-related inventions if the plant is not exclusively obtained by an essentially biological process and if the technical feasibility of the invention is not confined to a particular plant variety. However, specific plant varieties cannot be protected by patents in the UK and the EU and can only be protected by PVRs. Patents have broader protection but PVRs are useful additions to an intellectual property portfolio as they have a longer duration than patents and whilst a public disclosure will end the possibility of a patent the novelty of plant varieties is assessed on commercial rather than absolute novelty and there are grace periods for disclosures.
PVR applications
There is no international application process for PVRs but there is an International Union for the Protection of New Varieties of Plants (UPOV) with 80 members covering 99 States. UPOV administers the UPOV convention which provides a legal framework for plant variety protection enhancing the global harmonisation of laws governing the granting of PVRs.
Separate applications are needed obtain protection in both the UK and European Union and additional applications will be necessary for protection in further countries of interest. Considerations for where to apply for PVRs include where you anticipate your plant variety will be grown, where it will be imported and where it will be sold and distributed.
PVR applications can be made by the individual who has bred or developed a plant variety or by their successor in title. A breeder may assign their rights to a variety to another person or company. If the breeder bred, discovered or developed a plant variety while employed by a company then the employer must apply for a PVR in the UK.
To file an application for a PVR at a plant variety office you must provide details of the breeder(s)/applicant(s)/procedural representative, a technical description of the variety, its geographic origin, any commercialisation of the variety, any other applications made in respect of the variety, a proposed variety denomination, priority claim (if making one), photographs of the variety and complete a technical questionnaire in respect of the variety.
The proposed variety denomination must accurately represent the variety or its characteristics, not already be used by a variety of the same species, can’t be confused with the name of another variety or other goods and will not cause problems with recognition or production.
Priority can be claimed from a parallel application filed for the same plant variety in the 12 months immediately preceding the application in another UPOV member. If acceptable the subsequent application will be treated as it were filed on the date of the earlier application.
After the application is filed the plant variety office will either request a sample of the plant variety to test if is distinct, unform and stable (DUS) or it will request test results generated by another testing authority.
Fees must be paid for filing the application and for either the purchase of a DUS report or for each year of DUS testing. PVRs can be applied for at any time but there are specific closing dates for the receipt of plant material for DUS testing. The closing dates vary for receipt of samples of different plant varieties and should be closely monitored to minimise delays in the start of DUS testing.
Novelty
A variety is new if no sale or other disposal of propagating or harvested material of the variety for the exploitation of the variety has, with the consent of the applicant, taken place in the country of filing earlier than one year before the date of application or anywhere else earlier than 4 years, or for trees or vines 6 years, before the date of the application.
Some sales/disposals are disregarded for the assessment of novelty including the use of propagating material for increasing an applicant’s stock, carrying out tests or trials and display at an exhibition.
Distinctness Uniformity and Stability (DUS)
A DUS growing test involves the cultivation of the variety in a way that ensures the expression of the relevant characteristics of the variety.
A variety will be deemed distinct if is clearly distinguishable by one or more characteristics which are capable of a precise description from any other variety whose existence is a matter of common knowledge at the time of the application. A variety is considered of common knowledge if an application for a PVR or for entering it in an official register has been filed in any country, provided such application is granted.
A variety will be deemed to be uniform if subject to the variation that may be expected from its propagation, its characteristics are sufficiently uniform.
A variety will be deemed to be stable if its characteristics remain unchanged after repeated propagation, or at the end of each particular cycle of propagation.
Duration and extent of protection
The duration of protection can vary but in the UK PVRs for potatoes, trees and vines last for 30 years from the date of grant and for other plant varieties 25 years from the date of grant. No renewal fees are due for UK PVRs.
If granted, the holder of a PVR in the UK has rights from the day of publication in the UK Seeds Gazette if an act carried out after publication would constitute an infringement if carried out after grant.
PVRs give the holder the right to stop anyone carrying out the following acts in respect of the propagating material of the protected variety without their consent:
- Production or reproduction (multiplication)
- Conditioning for the purpose of propagation,
- Offering for sale, selling or other marketing
- Exporting, importing or stocking for any of the purposes above
These rights also apply to harvested material obtained through the unauthorised use of propagating material of the protected variety unless the holder has had a reasonable opportunity to exercise their rights in relation to the propagating material.
The holder of the PVR can exploit the variety himself or may grant licenses to other parties on an agreed basis.
The scope of the breeder’s right also extends to varieties not clearly distinguishable from the protected variety, varieties whose production requires the repeated use of the protected variety, such as some hybrid varieties, and essentially derived varieties (EDVs) – if that variety is not itself essentially derived from a third variety. An EDV is predominantly derived from an initial, protected variety, distinguishable from the initial variety and except for the differences resulting from the act of derivation it conforms to the initial variety in its expression of essential characteristics resulting from the genotype(s) of the initial variety.
Notably the UPOV Convention does not require the granting authority to assess whether a protected variety is essentially derived or not. The creation of an EDV does not require the authorisation of the holder of the PVR for the initial variety as this is covered by the exceptions to the breeder’s right. But for the production and commercialisation of the propagating material and harvested material of the EDV obtained through unauthorised use of the propagating material authorisation of the holder of the PVR to the initial variety is required.
Exceptions from protection
PVRs do not extend to acts done for private and non-commercial purposes, experimental purposes or for the purpose of breeding another variety, the “breeder’s exemption”. In addition a new variety created under the breeder’s exemption can be bred and commercialised without the consent of the rights holders of the parent varieties unless the new variety is an EDV or requires the repeated use of a protected parent variety.
There is also an exception for use by a farmer for propagating purposes on his own holding of the product of a harvest which he has obtained by planting on his holding propagating material of a protected variety or an EDV of a protected variety, or a variety not clearly distinguishable from the protected variety.
Do I need to be aware of plant variety rights?
If you stock, grow, breed, sell or distribute any form of plant material including food then yes you should be aware of any and all intellectual property rights covering said plant material in the jurisdictions you operate in.
Official Gazettes of UPOV members and the PLUTO Plant Variety Database published by UPOV contain details of applications for PVRs and granted PVRs. It should be noted that EDVs may not be marked as such in these publications.
If you are unsure of the status of a PVR in the jurisdictions of interest or if there is a risk the plant you are dealing with is an EDV seek expert advice rather than risk a costly infringement action.
