Plant Variety Rights

Plant Variety Rights: an introduction

What is a Plant Variety Right (PVR)?

Plant variety rights (also known as plant breeders’ rights (PBRs)) are a type of internationally recognised intellectual property right for the purpose of protecting new plant varieties.

Plant variety rights allow plant breeders to collect royalties for the production and sale of their protected plant varieties, or to prevent unauthorised third party use.

What does a Plant Variety Right protect?

If you hold a plant variety right you can prevent others from carrying out any of the below acts with the propagating material of your variety without your permission:

• Production or reproduction
• Selling or offering for sale (or other marketing)
• Exporting or importing
• Conditioning for the purpose of propagation
• Stocking for any of the above uses

Crucially, the above rights also apply to a dependent variety. A dependent variety is a plant whose repeated production is not possible without use of the protected variety (such as hybrids) or those plants that are considered essentially derived from the protected variety.

However, a PVR does not extend to acts done for private and non-commercial purposes or for experimental purposes. Most notably, a PVR does not extend to any acts that are for the purpose of breeding another variety. This is known as the “Breeder’s exemption” – its aim is to encourage breeders to develop new varieties.  

A further exemption to the rights provided by a PVR is to “farm saved seed”. This exemption allows farmers to use the product of their harvest for propagating purposes. However, farm saved seed must be declared and a fee paid for each eligible variety.

What criteria must a new variety meet?

1. Distinct
   At least one (or more) characteristics must be clearly distinguishable from any other variety whose existence is common knowledge at the time of application. Varieties in common knowledge include those in cultivation, exploited commercially, held in a reference collection or described in a publication.
2. Uniform
   All plants in the variety must share the same features.
3. Stable
   The characterising features of the variety must be unchanged after repeated propagation. Seed/plant material will be tested to determine if this criterion is fulfilled.
4. New
   In the UK, your variety is novel if it 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. Similar requirements apply for EU PVRs.
5. Named
   The name must facilitate clear identification and be different from existing varieties.

Who can have a Plant Variety Right?

An application must be made by the breeder, their successor in title, or the breeder’s employer if a plant variety arose during the course of employment duties. There are no restrictions on who is considered a breeder for the purpose of applying for a PVR – that is, a breeder can be anyone from an amateur gardener to a farmer to a multinational agricultural organisation.

How long does a Plant Variety Right last in the UK and the EU?

In both the UK and EU plant variety rights are granted for 25 years for all species except trees, vines and potatoes, which have a period of 30 years. In the UK only a minority of plant varieties (including herbs, potatoes and ornamental species) require annual renewal fees to be paid, although annual renewal fees are required for all EU plant variety rights.

Are UK Plant Variety Rights valid in the EU?

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 an 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. CPVRs are unitary rights, meaning that they offer EU-wide protection. To be eligible for CPVR protection your variety needs to meet the same criteria listed above for UK PVRs. In the case of 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. To receive a CPVR, colour photographs and a technical questionnaire must be submitted to provide information on the characteristics of your variety.

Plant Breeders’ Rights in Canada

Plant variety rights are also available in Canada, where they are referred to as plant breeders’ rights (or PBR). A breeder or the breeder’s legal representative may apply for PBR.

The scope of protection and eligibility requirements for PBR in Canada are generally the same as those detailed above for plant variety rights in the UK and EU. However, an important difference is the term of protection: Once granted, a Canadian PBR certificate has a term of up to 25 years in the case of a variety of tree and vine (including their rootstocks), and 20 years in the case of all other varieties of plants.

A PBR certificate will remain in force as long as the PBR holder pays annual renewal fees to maintain the rights. The PBR holder can surrender the rights at any time before the end of the 20 or 25 year period.

Plant Variety Rights 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. They are 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.

Are Hong Kong Plant Variety Rights valid in the other jurisdictions, in particular, China?

The granting of a plant variety right in Hong Kong is distinct from those in China or any other locations 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.

Of 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).

Plant Variety Protection in Singapore

If you breed plants, and you have discovered and developed a new plant variety, you can seek protection for your new plant varieties by applying for a Grant of Protection for a Plant Variety (PVP) to provide antecedent basis for later use. The Term of Grant in Singapore is 25 years.

Having granted protection provides an exclusive right to prevent others from doing any of the following acts in respect of the propagating material and/or harvested material of the protected plant variety without the PVP owner’s authorisation: production or reproduction; conditioning for the purpose of propagation; offering for sale; selling or other forms of marketing; exporting; importing; or stocking for any of the aforesaid purposes.

This right, however, does not extend to use of the protected plant variety for private, non-commercial, experimental, research purposes, or for the purpose of breeding other varieties.

Bear in mind that Singapore is a relatively small island with limited agriculture space within which to perform large scale growing of varieties for DUS (distinctness, uniformity and stability) examination. Consider the nature of the variety and whether it would be more pragmatic to nominate an external examination site or rely on an examination result from another International Union for the Protection of New Varieties of Plants (UPOV) member.

Plant Variety Protection in Malaysia

Plant Variety Protection (PVP) Malaysia is broadly similar to the system in Singapore, but with some notable differences. Importantly, the term of protection is 25 years for trees and vines and 20 years for other plant varieties - if the plant variety is new, distinct, uniform and stable. The term of protection is 25 years for trees and vines and 15 years for other plant varieties - if the plant variety is new, distinct and identifiable and plant variety is bred, or discovered and developed by a farmer, local community or indigenous people.

In further contrast to Singapore, the limitations include any act done privately on a non-commercial basis or for an experimental purpose or any act done for the purpose of breeding other plant varieties, propagation by small farmers using harvested material of the registered plant variety planted on their own holding, exchange of reasonable amounts of propagating materials among small farmers and the sale of farm-saved seeds in situations where non-usage is beyond the control of the farmer.