Plant Breeders’ Rights
4 August 2021
Plant Breeders’ Rights (PBRs) are rights granted to the breeder of a new variety of plant to give the breeder exclusive control over the propagating material (including seeds, cuttings, divisions and tissue culture) and harvested material (cut flowers, fruit, foliage) of the new variety.
Acts done by third parties for non-commercial, private or experimental purposes or for the purpose of breeding a new variety are not prohibited by PBRs
What can be protected?
PBRs are granted for new plant varieties, including genetically modified varieties. They can be ornamental, horticultural or agricultural varieties.
There are PBR systems in place in over 75 countries world-wide.
Post-BREXIT, applicants have to apply via the Animal and Plant Health Agency for protection in the United Kingdom. For protection in the remaining EU-countries, applications are made via the Community Plant Variety Office (CPVO) in France.
What is tested?
In order for a PBR to be granted, the variety must be distinct – with comparably different characteristics to plants of the same species; uniform – with all plants in the variety sharing the same characteristics; and stable – where the variety remains unchanged after repeated propagation.
Testing typically takes one year for ornamentals, three years for trees, four years for herbage varieties and two years for other species.
For a United Kingdom PBR, an application for the variety must be made within one year of the variety having been sold or used for commercial purposes in the United Kingdom, or within four years (six for trees or vines) of it having been sold or used for commercial purposes outside the UK. Similar requirements apply in many other countries.
How long does protection last?
Between 25 and 30 years depending on the type of plant.
Typically, for the first two years after obtaining a PBR, the owner has the exclusive right to license other parties to use the new variety. In many countries, after two years, any person that unsuccessfully applies for a licence from the owner can apply for a compulsory licence if they feel that the owner “unreasonably” refused to grant a licence, or that the owner imposed “unreasonable” terms on a granted licence. Compulsory licences can be applied for if a third party can show that a licence is necessary to ensure the variety is widely available to the public at a reasonable price and/or an appropriate level of quality. The third party also needs to show that they can exploit the variety in a professional way.
What’s in a name?
The applicant for a PBR has to choose a name that is not already used in respect of a variety of the same species, cannot be confused with the name of other varieties, does not cause problems with recognition or production, and accurately represents the variety or its characteristics. The applicant can use a trade mark or trade name when they sell the seeds of the plant, but the name registered must be clearly shown on the packaging.
For more information, please get in touch with David Elsy.
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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP August 2021