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Plant varieties and seeds – FAQ

What are “Plant Breeders’ Rights” (PBR)?

PBR are private protection rights, similar to patent rights, which protect the intellectual property of a plant breeder. They consequently aim at promoting plant breeding as well as agricultural and horticultural progress. Pursuant to the Federal Law on the Protection of New Plant Varieties, every breeder or discoverer of a new variety has the opportunity to apply for PBR at the German Plant Variety Rights Office (Bundessortenamt) for new varieties from the whole plant kingdom.

What is the National List?

The German Seed Act provides the legal frame for the National List. It serves to protect the consumer and ensures the provision of high quality seed and planting stock material of resistant and high performance varieties for farmers and horticulturists. Additions to the National List are necessary for commercialisation of agricultural species and vegetables.

The Plant Variety Rights Office in Hanover is responsible for both entering new plant varieties, as well as seed and planting stock to the National List.

What can be protected by means of Plant Breeders’ Rights?

Plant Breeders’ Rights are granted if the variety is distinct, uniform, stable and new. Furthermore, it must have a variety denomination. The requirements for PBR are tested in the field or in a greenhouse and are supplemented by laboratory tests. Following the national and international test guidelines, characteristics for the assessment of distinctness, uniformity and stability are examined and registered on the basis of field or greenhouse tests.

The type and number of assessment characteristics depends on the plant species. Potatoes are examined among others on the basis of the colour of blossoms or of tubers, bread wheat – on the basis of the length of the plant or ear development, ornamental plants – on the basis of growth habit, the colour and form of the blossoms, fruit – on the basis of fruit characteristics, and as far as vegetables are concerned, an important assessment characteristic is resistance against illnesses. PBR are granted for the period of 25 years or 30 years in case of hops, potatoes, vines and tree species.

In what way are Plant Breeders’ Rights effective?

Plant Breeders’ Rights stipulate that only the owner or his legal successor has the right to produce, trade or import propagating material of the protected variety on a commercial basis. A breeder who uses propagating material of an already protected variety to breed a new variety does not need to obtain permission from the PBR holder.

Where to apply for plant variety title?

In Germany, applications for protection have to be made to the Plant Variety Office. Since 27 April 1997 plant breeders may ask for protection throughout the European Union by a single application to the Community Plant Variety Office.

Is there a Europe-wide “Community Plant Variety Right”?

Yes, there is. The Community Plant Variety Right (CPVR) gives the applicant by a single application to the Community Plant Variety Office (CPVO) in Angers, France, the sole and exclusive form of Community industrial property rights for plant varieties which has uniform effect within the territory of the Community. Before the new system was introduced, plant breeders seeking protection throughout the European Union had to apply for protection in each member state of the European Union separately.

Since 1996 the number of applications for Community Plant Variety Rights has increased from 1.385 to 2.013 in 2000. 83% applications originated in EU member states. A community title was granted for 6.914 (58%) out of 11.983 applications (from April 1995 to January 2001) (CPVO statistics).

The Community Plant Variety Right has uniform effect within the territory of the Community and can be granted, transferred or resigned only on a uniform basis within this territory. The new Community-wide system is an alternative to the respective national systems. It is not possible to simultaneously hold both a Community Plant Variety Right and a national plant variety title in respect of the same species. It is neither possible to hold both a Community Plant Variety Right and a patent at the same time. When a Community Plant Variety Title is granted for a certain species, for which a national plant variety title or a patent have already been granted, the national plant variety title or the patent are superseded for the duration of the Community Plant Variety Right.

Varieties of all botanical genera and species, especially hybrids between them can form the object of Community Plant Variety Rights. The definition of “plant variety” is contained in Article 1 of the International Convention for the Protection of New Varieties of Plants (UPOV Convention). The breeder’s right can be granted when the variety is distinct, uniform, stable and new, and moreover, when the variety is designated by a denomination (Article 5 and 6).

  • “A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that result from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application. The existence of another variety shall in particular be deemed to be a matter of common knowledge if on the date of application:
    • it was the object of a plant variety right or entered in an official register of plant varieties, in the Community or any state, or in any intergovernmental organization with relevant competence;
    • an application for the granting of a plant variety right in its respect or for its entering in such an official register was filed, provided the application has led to the granting or entering in the meantime.”
  • “A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description.”
  • “A variety shall be deemed to be stable if the expression of the characteristics which are included in the examination for distinctness as well as any others used for the variety description, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.”
  • “A variety shall be deemed to be new if, at the date of application variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder for purposes of exploitation of variety:
    • earlier than one year before the abovementioned date, within the territory of the Community;
    • earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community.”

After the applicant has filed an application for protection either directly through the CPVO or through one of the national offices who subsequently transfers it to the CPVO, the CPVO has to examine whether the variety is new and whether it may be the object of a Community plant variety, i.e. whether it meets the DUS criteria (distinct form others, uniform in its characteristics and stable in the long run). This is done by means of technical examination. The CPVO can use the results of earlier examinations which have been carried out by examination offices in the member states entrusted with responsibility for the technical examination of varieties. When a Community plant variety right is granted, the CPVO approves, for the variety in question, the variety denomination proposed by the applicant. The variety denomination shall be the proof for the protected variety also after the termination of protection.

What are varieties of agricultural species tested for?

The German Seed Act provides the legal frame for the National List. It serves to protect the consumer and ensures the provision of high quality seed and planting stock material of resistant and high performance varieties for farmers and horticulturists. An addition to the National List requires a successful performance in the Distinctness, Uniformity and Stability test (DUS-test) and a designated variety denomination. The DUS-tests are carried out in the fields or in greenhouses, and are supplemented by laboratory tests in some cases. Varieties of agricultural species are additionally tested for their Value for Cultivation and Use (VCU). This is legally defined as follows: A variety fulfils the conditions of VCU if, compared to the already listed varieties, it provides a noticeable improvement in crop cultivation, the utilisation of harvested crops or any product obtained from such crops. In the VCU-testing cultivation, resistance, yield, internal quality and processing characteristics of a variety are tested. The duration of the registration in the National List is 10 years (20 for vine). An extension is possible. VCU testing of varieties which have been proposed for addition to the National List takes two years for most species and three years for cereals, fodder plants and winter rape. Depending on the plant species, the VCU-tests are carried out at 10 to 30 test sites belonging to the Plant Variety Rights Office, the Federal Lands and in some cases in co-operation with the breeders.

Each year about 1000 agricultural varieties are submitted for addition to the National List but at the end only around 15 % of the filed applications fulfil the requirements and are added to the National List.

The Forest Seed and Plant Law, implemented by the Federal Lands, applies to forest plant varieties.

What do we need to file an application for protection of your plant variety?

It is impossible to clarify matters in respect to this form of protection without a consultation (at least by telephone).

In the initial phase, in which we plan further proceedings, we only need general information on the stage of development of your species so that our expert in charge can contact you and settle further details with you, including estimation of costs.

© 1998-2017 IP Attorney at law Michael Horak, LL.M, Certified IP Law Specialist

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