Plant variety rights


|Gert Würtenberger|

At this stage it is unclear whether the United Kingdom will leave the EU without having achieved an agreement with the European Union. Thus, it is important to know how plant variety rights granted on the Union level or applications pending with the CPVO will be dealt with once the United Kingdom no longer will be a Member State of the European Union. Moreover, it will be of importance under which conditions the marketing of plant reproductive material will be dealt with.

Plant Variety Rights

In order to be prepared with regard to protection of plant breeding results and the marketing of plant reproductive material, the Department for Environment, Food & Rural Affairs (DEFRA) has published a technical notice. The essential information is as follows:

. Community Plant Variety Rights granted by 29 January 2019 will be automatically continued to be protected in the UK. The scope of such rights and their enforcement will be governed by UK laws;

. Regarding EU rights granted after 29 January 2019 and before the date of the exit, the rights’ owners must apply for rights to protect the variety in the UK. If such an application will be filed within six months of the exit, the priority date and distinctness uniformity and stability tests may be claimed for the UK application.

. As for applications for grant of Community plant variety rights which have not matured into a granted right by 29 January 2019 the applicant must apply to the Animal and Plant Health Agency (APHA) for rights to protect the variety in the UK. If the UK application will be filed within six months of the exit of the UK, the UK application will receive the same priority date which will be relevant for distinctness uniformity and stability tests.

. Once the UK will have left the European Union, protection of new plant varieties in the U.K. will have to be sought by filing national applications;

. Since UK has closed most of its previous national facilities to perform DUS tests, the Department for Environment, Food & Rural Affairs plans to accept the DUS reports of the CPVO providing that they are of comparable quality to UK DUS reports. Exceptions are the agriculture species currently tested by the

– Agri-Food and Biosciences Institute (AFBI)

–  National Institute of Agricultural Botany (NIAB)

– Science and Advice for Scottish Agriculture (SASA).

For these species only DUS reports from approved UK science organisations will be accepted.

Marketing of Plant Reproductive Material

Since the marketing of plant reproductive material requires a market admission by the responsible authorities, the UK has applied to the EU for a so-called “third-country equivalence” on plant reproductive material certification and DUS testing. If this application will be unsuccessful UK businesses require admission granted by EU authorities on the basis of relevant applications. The EU will neither accept UK certified plant reproductive material – even if the variety is on the EU’s Common Catalogue – nor will it accept UK DUS test results.

With regard to fruit propagation material and seed potatoes DEFRA negotiates bilateral agreements with Member States for the same marketing plant reproductive material in the UK originating in the EU. Independent of the UK’s application for third-country equivalence

. varieties, except potatoes, may be marketed as far as they are listed on the EU Common Catalogue for a 2-year period after leaving the EU;

. varieties of potatoes for a one-year period after leaving the EU.

Following the 2-year interim period and one-year interim period for seed potatoes, the main agricultural food and feed crop varieties, including vegetables, marketed in the UK will need to be on the UK National List. For further guidance (here).

Published on 5 Apr 2019