S. 1 (1) of The Plant Varieties Act 1997 establishes rights, known as “plant breeders’ rights”, in plant genera and species that qualify for protection under that Act.
British Plant Breeders’ Rights
S.6 entitles a holder of such rights to prevent
- production or reproduction (multiplication),
- conditioning for the purpose of propagation,
- offering for sale, selling or other marketing, exporting, importing, stocking for any of the above purposes, or
- any other act prescribed for the purposes of that provision without his authority.
These rights are granted upon application to the Plant Variety and Seeds Office which is controlled by the Controller of Plant Variety Rights.
Community Plant Variety Rights
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (“the Community plant variety regulation”) creates a Community Plant Variety Office which grants Community plant variety rights for qualifying plant species. Community rights do not coexist with national rights. If Community plant variety right is granted after rights are granted under the 1997 Act the national rights are suspended for so long as Community protection subsists.
UPOV- International Union for the Protection of New Varieties of Plants
HM government is party to the International Convention for the Protection of New Varieties of Plants which established UPOV (The International Union for the Protection of New Varieties of Plants). The objective of the Union to encourage the development of new plant varieties by conferring plant breeders’ rights as described above.
Acquisition
Rights under the 1997 Act are set out in full in two excellent publications that may be downloaded from the Plant Varieties and Seeds Office website:
Guidance on applying for Community plant variety rights is available on the “Filing an Application” page of The Community Plant Varieties Office website.
Enforcement
Proceedings for infringement of plant breeders’ must be brought in the Patents Court or Patents County Court.
Risk Factors
There are examinations for distinctness, uniformity, stability and novelty in both national and Community plant varieties offices. An appeal lies from a decision of the Controller to the Plant Varieties and Seeds Tribunal and from there to the High Court. Similarly, there is a Board of Appeals in the Community Plant Varieties Office. S.17 of the 1997 Act provides for compulsory licences if a plant breeder’s right’s holder unreasonably refuses to grant a licence or offers a licence only on unreasonable terms.
IP/IT Update 