What are plant variety rights?

Plant variety rights (also called plant breeders’ rights) are a form of intellectual property right designed specifically to protect new varieties of plants. These rights offer legal protection as a reward for the investment plant breeders make in breeding and developing new varieties.

The plant variety right entitles the holder to prevent any unauthorised person from:

• production or reproduction (multiplication)
• conditioning for the purpose of propagation
• offering for sale, selling, or other marketing
• exporting
• importing and stocking for any of these purposes

The plant variety right also extends to any variety which is dependent on the protected variety. Dependent varieties are defined as those whose repeated production requires the repeated use of the protected variety (i.e. hybrids), or those which are essentially derived from a protected variety which is not itself essentially derived.

The plant variety right does not extend to the holder being able to prevent any act done for private and non-commercial purposes, for experimental purposes or for the purpose of breeding another variety. Farmers are also able to save seed to use on their own holding if the rights holder is paid an equitable remuneration for this use.

The right can last for 25 to 30 years, depending on the type of plant.

The territorial extent of plant variety rights and the impact of Brexit

Plant variety rights were established under the International Union for the Protection of New Varieties of Plants (UPOV) — an intergovernmental organisation which has its headquarters in Geneva. Plant variety rights’ systems are administered in 75 countries worldwide. There are currently over 100,000 plant variety rights in force worldwide.

These rights are valuable to plant breeders, because plant varieties are specifically excluded from patent protection within some jurisdictions, such as Europe. A new plant variety can be protected across the European Union with a Community Plant Variety Right (CPVR). The Community Plant Variety Office located in Angers, France administers the CPVR.

A new plant variety can be separately protected with a national plant variety right. In the UK, this right is called a Plant Breeder’s Right (UKPVR). Applications for UKPVR are made to the Plant Variety Rights Office in Cambridge, England which administers the UKPVR and is a part of the Food and Environment Research Agency (FERA). Pre-Brexit, the CPVR and PBR cannot operate simultaneously. However, from the exact moment that the UK leaves the EU, none of these varieties protected using CPVR will be protected in the UK unless the UK government enacts legislation transferring all EU-protected varieties to a UK PVR register with the same name, scope of protection, registration date and term as the equivalent CPVR. Watch this space.

What criteria must a new variety meet?

Any plant genera or species can be protected in this way, including agricultural, horticultural and ornamental plants. The new variety must be:

• Distinct — it must be clearly distinguishable by one or more characteristics that are capable of precise description from any other variety whose existence is a matter of common knowledge at the time of the application. Varieties that are in common knowledge include those that are already in cultivation, exploited for commercial purposes, held in a reference collection or have been precisely described in a publication.
• Uniform — all plants in the variety must share the same characteristics.
• Stable — the characteristics of the variety must remain unchanged after ‘repeated propagation’ (e.g. reproduction from seeds, cuttings, bulbs or other plant parts). Seed/plant material will be independently tested to decide whether the variety meets these criteria.
• New — to be considered ‘new’ for an application for a UKPVR, the variety must not have been sold or disposed of with the consent of the applicant for one year before the application within the UK, or four years before the application outside the UK (six years for trees and vines). For CPVR, the deadlines are one year within the EU and four (or six) years outside the EU.
• Named — the name must allow the variety to be clearly identified and ensure it’s different from a denomination identifying an existing variety of the same botanical species or a related one.

Who can apply for a plant variety right?

An application for CPVR or UKPVR must be made by the breeder, his successor in title or the breeder’s employer if the work was carried out in the course of employment. Applicants from outside the EU must have a nominated address or agent within the EU. Local laws will apply in other jurisdictions.

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