Plant Variety Rights “post-Brexit”

Plant Variety Rights “post-Brexit”

Plant breeding is a research-intensive sector. Plant Variety Rights (also called Plant Breeder’s Rights) are a type of intellectual property (IP) aimed to sustain investment and innovation in the plant breeding and seed industries.

Whilst patents in Europe may be granted with claims to plants at a high taxonomic level (e.g. that embrace individual plant varieties), Article 53(b) EPC excludes from patentability any claims directed to individual plant varieties or essentially biological processes for the production of plants [1]. Instead, plant variety rights are available to protect this form of IP.

Plant Variety Rights (PVR) are potentially valuable to plant breeders, as they entitle the holder to prevent any unauthorised person from reproducing, selling, altering, exporting, importing or keeping a plant variety. Plant variety rights last up to 25 years for plants (or 30 years for tree, vines or potatoes).

Plant Variety Rights are available for new plant varieties, including genetically modified varieties. To get rights, the variety must be:

· distinct – have different characteristics to other plants of the same species.

· uniform – all plants in the variety must share the same characteristics.

· stable – it remains unchanged after ‘repeated propagation’, for example reproduction from seeds, cuttings, bulbs or other plant parts.

PVR are not available for any varieties that are sold or commercially used:

· in the UK more that 1 year before the date of application, or

· outside of the UK more than 4 years before the date of application (6 years for trees or vines)

The plant variety must also be named in the application. The name must be different to any other existing variety of the same species, not lead to confusion with any other varieties or goods, not cause problems with recognition nor suggest that the variety has any specific characteristics or attributes. It is possible for a third party to object to the naming of a variety in the UK, so long as the objection is filed within 3 months of the national listing decision date which is published in the plant varieties and seeds gazette [2].

The UK’s withdraw from the EU (“Brexit”) has led to some significant changes in filing strategy for PVR protection across Europe. The UK’s transition period after withdrawal from the EU ended on 31 December 2020. A separation registration procedure is now required for registering plant variety rights:

· Animal and Plant Health Agency (APHA) in the UK;

· Community Plant Variety Office (CPVO) for the 27 EU member states.

Following the application(s), formal and technical examination is performed by the relevant offices before grant of any PVR. Technical examination (DUS) involves checking of the plant’s characteristics through growing trials and may vary from 1-6 years depending on the species.

Varieties with EU rights granted before 31 December 2020 have been automatically awarded corresponding UK rights from 1 January 2021, since EU rights no longer apply in the UK. For any pending EU rights not granted before 1 January 2021, it is necessary to apply to APHA for protection in the UK. The deadline for doing so is 30 June 2021.

In summary, an effective IP strategy for innovative companies in this sector may consider PVRs as well as patents and/or trademarks. For example, where effective patent protection may not be available, PVRs may represent a better option to protect any specific marketable varieties. Ultimately, the choice for a company between patents or plant variety rights may depend on what provides the best balance between investment and revenue.

Secerna LLP are available as UK address for service for UK plant variety rights, and we can co-ordinate with CPVO filings if protection is required across Europe. If you would like further information, please contact Charlotte Watkins or Huw Jenkins at docketing@secerna.co.uk.

1. https://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ar53.html

2. https://www.gov.uk/government/publications/plant-varieties-and-seeds-gazette-2020

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