What is a Plant Variety Right in Hong Kong?
In Hong Kong, plant variety rights are rights granted to plant breeders (or owners of the variety) over cultivated plant varieties they have bred or discovered and developed. Administered by the Agriculture, Fisheries and Conservation Department (AF&CD) of the Government of the Hong Kong SAR.
Such proprietary rights are set out by the Plant Varieties Protection Ordinance (Cap. 490), which covers all botanical genera and species of vascular plants as well as edible fungi and edible algae.
Plant variety rights allow plant breeders to collect royalties/payment, which is specified by the Registrar of Plant Variety Rights, for the production and sale of their protected plant varieties.
What Does a Plant Variety Right Protect?
If you hold a plant variety right you can prevent others from:
- Producing for sale, offering for sale, selling reproductive material of the variety concerned;
- Importing or exporting reproductive material of the variety concerned; and
- Propagating that variety for the purposes of the commercial production of fruit or flowers of that variety.
Particularly, a plant variety right extends the protection against sale under the denomination of a protected variety of reproductive material of some other variety, unless the groups of plants to which those varieties belong are internationally recognized as being distinct for the purposes of denomination.
However, plant variety rights do not extend to the followings:
- Use of reproductive material from a protected variety for human consumption or other non-reproductive purposes;
- Use, propagation or growth of a protected variety for any one of these purposes:
- Non-commercial purposes;
- Experimental or research purposes;
- For the purposes of breeding a new variety;
- Any person who engages faming activities for the purposes of safeguarding agricultural or horticultural production, to use the reproductive material from a protected variety for reproductive purposes on his/her own holding, if the right holder is paid an equitable remuneration /authorized the person for the use.
What Criteria Must a New Variety Meet?
1. Named (Denomination)
In general, the proposed name must facilitate clear identification and be different from existing varieties. In addition, the proposed name must not consist of a botanical or common name of a genus or species and the like. Objections to the proposed denomination may be made by the public within 3 months from the publication of the proposed denomination.
Detailed requirements for proposed denomination are set out in the Plant Varieties Protection Regulation (Cap. 490A).
2. New
The variety must not have been sold with the agreement of any relevant owner of that variety for more than 12 months in Hong Kong, or more than 4 years outside Hong Kong (this extends to 6 years for trees and vines).
3. Distinct
At least one (or more) characteristics must be clearly distinguishable from any other variety whose existence was a matter of common knowledge at the time of application. Varieties in common knowledge include those of which a grant or application has been made in Hong Kong or in a UPOV country, precisely described in any publication, included in a reference collection or being cultivated or marketed for a period exceeding the prescribed period.
4. Stable
A variety remains true to its description where the applicant concerned has described particular cycles of propagation or reproduction for that variety, at the end of each such cycle; and after repeated propagation or reproduction.
5. Uniformity (Homogeneous)
All plants of a variety carry, exhibit or show the same expression of that variety’s relevant characteristics, subject to any variation which may be expected having regard to any particular feature of its propagation or reproduction.
Who Can and How to Apply for a Plant Variety Right in Hong Kong?
An application may be filed by the following person:
- The person who bred or discovered and developed the variety;
- An agent (such as a procedural representative) of that person;
- A successor to that person; or
- The breeder’s employer if a plant variety arose during the course of employment duties.
To apply for a plant variety right in Hong Kong, online system is not yet available. The applicant must submit a completed application form, the application fee, all the required documents and the prescribed quantity of reproductive material to the Office of the Registrar of Plant Variety Rights (The Office). The applicant must also provide an address for service within Hong Kong in relation to that application.
Is It Possible to Claim Priority Resulting from Earlier Applications?
Yes. Priority may be claimed, by the applicant, within 1 year from the earliest application of the variety concerned made in a UPOV member country. A copy of the prior application, certified by the appropriate authority must be submitted to the Registrar within 3 months of the making of the application for a grant in Hong Kong
How Long Does a Plant Variety Right Last?
A grant shall be in force for a term of 25 years in the case of trees or vines, and of 20 years in every other case. In particular, the grantee is required to pay annual grant fee and maintain a stock of reproductive material in relation to such variety as prescribed by the AF&CD.
However, any person may notify the AF&CD in writing, objecting to continuation in force of that grant, should the person consider that:
- The variety is not new, distinct, stable, and homogeneous as described herein; or
- A grant was made to a person who was not an owner of that variety.
Are Hong Kong Plant Variety Rights Valid in the other jurisdictions, in particular, China?
The grant of a plant variety right in Hong Kong is separated from China or any other places outside Hong Kong. As such, the granted plant variety right (HK) is only valid in Hong Kong. To obtain protection outside Hong Kong, you must make separate applications to the appropriate authorities in those jurisdictions.
On particular note, although the granted plant variety right (HK) is territorial, it generally has a longer and broader scope of protection as compared to that in China. Specifically, in Hong Kong, a term of 25 years is granted for all species of trees or vines (and 20 years for other plants), whereas in China only a term of 20 years is granted for vines, forest trees, fruit trees and ornamental plants (and 15 years for other plants).
If you would like more information on plant variety rights or would like us to file an application to protect your plant variety in Hong Kong, please contact Marks & Clerk Hong Kong at hongkong@marks-clerk.com.hk.