European patent law specifically excludes plant varieties from patent protection. Protection for plant varieties is however available through a different form of intellectual property right (IPR) called plant variety rights (PVR) or plant breeders’ rights (PBR), which rights are specifically tailored to plant breeding and reward the investment made by plant breeders in developing new plant varieties.  

Protection in Europe for a new plant variety may be obtained either on a national level or on an EU-wide level. The Plant Variety Rights Office (PVRO) administers PVRs in the UK; PVRs issued by the PVRO confer protection only in the UK. If PVRs are required in several European countries it may be more cost-effective and efficient to apply for EU-wide protection through the Community Plant Variety Office (CPVO), which is tasked with administering Community Plant Variety Rights (CPVR). CPVRs are unitary rights offering EU-wide protection. The CPVR system co-exists with national systems, but CPVRs and UKPVRs cannot operate simultaneously.

Who can apply for a PVR?

An application for a UKPVR or a CPVR must be made by the breeder or their successor in title, or by the employer where the variety was bred, discovered or developed in the course of employment.

The scope of PVRs

Once granted, a PVR can be used to prevent any of the following acts on the propagating material of the protected variety, if carried out without the consent of the holder of the rights:

• Production or reproduction of the variety
• Conditioning for the purposes of propagation
• Selling, offering for sale, or other marketing
• Exporting or importing
• Stocking for any of the aforementioned purposes

The aforementioned rights also extend to any variety that is dependent on the protected variety, such as hybrids, and to varieties that are essentially derived from a protected variety which is not itself essentially derived.

Excepted from these rights are the following acts for:

• Private and non-commercial use
• Experimental purposes
• Use of protected varieties as starting material to breed other varieties. This is the so-called “breeder’s exemption”. The resulting varieties may be protected and commercialised without any obligation towards the right holder of the protected variety. This allows the continued creation of improved varieties and safeguards access to genetic variation.
• Use of farm-saved seed (FSS). FSS applies to certain species only. The provision allows seeds produced on a farm to be re-sown on the same farm, with an equitable renumeration being payable to the right holder.

Main requirements to qualify for protection

To qualify for a UKPVR or CPVR, a plant variety must be novel and pass the so-called DUS test to show that it is Distinct, Uniform and Stable. The variety must also be given a suitable name.

The novelty requirement is met if at the date of application for a UKPVR, the variety has not been sold or disposed of with the consent of the applicant within the last year in the UK or the last four years outside the UK, or in the last six years in the case of trees and vines. In the case of an application for a CPVR, the novelty requirement is met if the variety has not been sold or disposed of with the consent of the applicant within the last year in the EU or the last four years outside the EU, or in the last six years in the case of trees and vines.

The DUS test is a technical examination conducted on physical plant material by approved organisations. For certain plants this test can take several years to complete. The variety will meet the “distinct” requirement of the DUS test if it is clearly distinguishable by one or more characteristics, which are capable of a precise description, from any other variety whose existence is common knowledge at the time of filing. The requirement for “uniformity” can be met if the variety is sufficiently uniform in those characteristics which are included in the examination for distinctness and “stability” requires those characteristics to remain unchanged after repeated propagation.

There is also a requirement to provide a suitable name. A suitable name is one which will allow the variety to be clearly identified and to avoid confusion with existing varieties of the same or related species.

Which species can be protected?

Both UKPVRs and CPVRs allow protection of all plant genera and species.

Duration of PVRs

Subject to the payment of maintenance fees, PVRs both in the UK and the EU last for 25 years from grant for all species except trees, vines and potatoes which can last for up to 30 years.

Brexit

The UK formally left the EU on 31 January 2020; however, a transition period is in place until 31 December 2020, during which EU law continues to apply. This means that during the transition period, any applications for CPVRs will also cover the UK and existing EU PVRs will continue to be recognised and protected in the UK.

Varieties with EU rights granted during the transition period will receive a corresponding UK right from 1 January 2021, when EU rights will no longer apply in the UK.

Pending applications for CPVRs that have not granted in the transition period will require an application to the PVRO for protection in the UK. From 1 January 2021, when the transition period ends, separate applications will need to be filed for protection in the UK (through the PVRO) and for protection in the EU (by applying to the CPVRO).