Plant Breeder's Rights (PBRs) or Plant Variety Rights (PVRs) are a form of intellectual property that protect new plant varieties.
PBRs are granted for varieties that are (a) distinct, (b) uniform, (c) stable and (d) new. Once granted, PBRs provide the rights holder with the exclusive right to commercialise the propagating material for up to 25 years (30 years for trees, vines or potatoes). As such, PBRs are an important right for plant breeders looking for a return on their significant investment in the generation of a new variety.
Prior to Brexit, it was possible to protect a new variety in the UK through either a UK Plant Breeder's Right (UK PBR) or a EU-wide Community Plant Variety Right (CPVR). Following Brexit, only UK PBRs are available to breeders wishing to obtain protection for their new variety in the UK.
In this article we have outlined some of the common questions around obtaining plant breeder rights in the UK following Brexit.
What is the process for filing a UK Plant Breeder's right?
From 1 January 2021, breeders wishing to obtain protection in the UK for their new variety will have to make an application for a UK PBR. This can be done alongside a separate application for a CPVR, which must be made to the Community Plant Variety Office (CPVO).
An application for a UK PBR must be made to the Animal and Plant Health Agency (APHA). The requirements to file for a UK PBR are similar to that of a CPVR and are as follows:
- Signed application form
- Completed technical questionnaire
- Power of attorney (if we are going to act for you, but you can apply yourself if you have a UK address)
- An assignment of rights by the breeder (if you are not the breeder)
- Any documentation showing authorisations such as marketing consent (for genetically modified plants).
- A customs fee may also apply if the application requires imported plant material.
Can I convert a pending CPVR application to a UK PBR application?
If you have a CPVR application that was still pending on 31 December 2020, it can be converted into a UK PBR. The deadline for converting a CPVR into a UK PBR is 30 June 2021. A UK application that is made before this date will be given the same filing date as the EU application. If the 30 June 2021 deadline is missed, then the plant variety will not be backdated to have the same date as the EU application.
For completeness, any CPVRs granted by 31 December 2020 will be converted into a UK PBR. This will occur automatically and will not cost anything. If you have any granted CPVRs, we recommend checking the UK register here to ensure that a UK PBR has been correctly recorded from the corresponding CPVR. However, a UK address for these converted CPVR rights will not be required until after 1 January 2024. The duration of the converted UK right will be calculated from the date the CPVR was granted.
Will the UK accept distinctiveness, uniformity and stability (DUS) tests carried out abroad?
The UK will accept EU reports for most species for variety listings and for plant breeders' rights, but only if they are of comparable quality to UK DUS tests. The exceptions are agricultural, amenity and vegetable species, where EU reports will only be accepted if testing started before 31 January 2020.
If DUS tests are being conducted or have been completed in another country, it may be possible to purchase the report. However, if the report cannot be purchased or the report is not acceptable, it will be necessary to prepare a UK DUS report.
Going forward, the EU will not accept UK DUS tests.
Are renewal fees payable for PBRs?
Renewal fees for most UK PBRs were abolished in 2006, so annual renewal fees are not payable for most UK PBRs. Only a handful of plant varieties (e.g. potatoes, herbs, swede and ornamental species) still require the payment of an annual maintenance fee in the UK.
However, it is worth noting that APHA are due to review their position on UK plant variety fees sometime this year.
Annual renewal fees continue to be required for CPVRs.
How do I add my variety to the national list?
New plant varieties must be added to the UK's national lists if they are to be marketed in the UK. Prior to Brexit, the Plant Variety Rights and Seeds Office would add a new variety to the European Commission's list, known as the Common Catalogue. This meant that the new variety could be marketed throughout the EU. However, the UK National List has now been deleted from the Common Catalogue. As a result, it will be necessary to separately register new varieties on the UK National List.
How do I obtain plant variety protection in the EU?
There is no change to the application process to obtain a CPVR. However, if you are UK-based (with no address in the EU), you will need a EU representative not only to make an application for a CPVR, but also to pay the renewal fees once the right is granted. Please contact us for more information on how our Luxembourg office can act as your EU representative.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.