Introduction to Plant Variety Rights

Plant variety rights are a form of intellectual property designed specifically to protect new varieties of plants.

The International Convention for the Protection of New Varieties of Plants (the UPOV Convention) is the international basis for plant variety protection. This was substantially revised in 1991, to strengthen the breeder’s right, primarily to reflect changes in plant breeding technology such as the introduction of genetic modification of plants. The Plant Varieties Act 1997 gives effect to the 1991 Convention in the UK. The Plant Variety Rights Office (PVRO) administers UK plant variety rights. Plant variety rights issued by the PVRO are exercisable only in the United Kingdom.

For protection in other countries a grant must be obtained by applying to the appropriate national authority. A separate system of EU plant variety rights is also available. This is administered by the Community Plant Variety Office (CPVO) based in Angers, France. A grant of EU rights gives protection throughout the Community. However, EU and UK rights cannot operate simultaneously. Plant variety rights under the UPOV Convention are also available in over 40 countries outside Europe.

Plant variety rights entitle the holder to prevent anyone doing any of the following acts as respects the propagating material of the protected variety without authority:

• Production or reproduction (multiplication)
• Conditioning for the purpose of propagation
• Offering for sale Selling or other marketing
• Exporting Importing Stocking for any of the purposes mentioned above

The holder of rights can authorise others to carry out these acts on whatever terms and conditions he/she wishes to impose, subject to the safeguard of compulsory licensing. Rights may also extend to harvested material obtained from the unauthorised use of propagating material, but only where the holder has not had reasonable opportunity to exercise his rights. Plant variety rights do not extend to any act done for private and non-commercial or experimental purposes or for the purpose of breeding another variety.

A holder of plant variety rights also has the rights set out above in respect of any variety whose production requires the repeated use of the protected variety (i.e. hybrids), or those which are essentially derived from a protected variety, for example, by genetic modification.

Both UK and EU plant variety rights can protect all plant genera and species.

The person who bred or discovered and developed the variety, or his successor in title, (referred to as the ‘breeder’) must make the application for plant variety rights. The breeder may assign the rights in the variety to another person or company and thus forfeit any future claim on the variety. An applicant for plant variety rights may make his application through an agent if he so wishes. An applicant from outside the EU must nominate an address for service or agent within the EU. D Young & Co acts in this capacity for several companies.

Once a valid application for plant variety rights is accepted, seed or plant material of the variety will be requested for official tests designed to assess whether the variety is distinct, uniform and stable (DUS).

The variety must also be new.

Fees are payable for applications, for the DUS test, on the granting of the right and annually thereafter. There are also a number of minor fees for specific acts or services. Fees for EU rights are generally higher than those for national rights, but offer better value if a European market for a variety is anticipated. Where D Young & Co acts on behalf of a breeder, an agency fee is also payable, dependent on the amount of work involved.

A name may be rejected if it does not comply with the UPOV guidelines. Any person may object to the approval of a name proposed for a plant variety if they feel the name may lead to confusion with the name of an existing variety or to the ownership or characteristics of the variety. From the date on which rights are granted, reproductive material of the variety must only be sold or offered for sale using the registered name. A trade mark or trade name may also be used in connection with the registered variety name provided that the mark or name and registered name are juxtaposed and the registered name is easily recognisable. This applies both during and after the expiry of plant variety rights.

Both UK and EU plant variety rights are granted for a term beginning with the date of the grant of rights and ending 25 years later for all species except trees, vines and potatoes which have a period of 30 years. Plant variety rights will only remain in force subject to the holder paying a renewal fee each year during the term of the rights. Neither PVRO or CPVO plays any part in enforcing plant variety rights - this is a civil matter for the holder of rights.