Plant Breeders' Rights

The breeders' rights is a form of intellectual property rights which is specifically aimed at protecting new plant varieties. This right grants exclusive rights to breeders who have developed a new, distinctive and valuable variety. For companies in the agricultural, horticultural and ornamental plant sectors, plant breeders' rights are crucial, as they allow them to protect investments in research and development and gain commercial advantages.

Below we discuss what plant variety rights entail, protection requirements, the granting procedure, the content of exclusive rights, and the duration of protection.

What is plant variety rights?

The breeders' rights provides protection to breeders who have developed a new plant variety (the law refers to varieties of botanical genera and species). It grants the breeder the exclusive right to propagate and market the variety. This right allows the breeder to profit from his efforts, for example by marketing the variety himself or licensing it to other parties.

In Belgium, plant variety rights are regulated by the Title 3 of Book XI of the Code of Economic Law. and by the royal decree of may 12, 2015, which establishes the protection of plant varieties at the national level. There is also the European plant variety right, administered by the Community Plant Variety Office (CPVO)., and provides protection in all EU member states. Belgium is also a party to the international UPOV Agreement (International Union for the Protection of New Varieties of Plants), which harmonizes the worldwide protection of plant varieties.

Protection requirements for plant variety rights

To be eligible for plant variety protection, a new plant variety must meet four important criteria as well as be given a suitable name:

1. Distinctiveness

The plant variety should be distinguishable are from existing varieties (art. XI.106 WER). A variety is considered distinct if it is clearly distinguishable by the expression of the characteristics resulting from a particular genotype or combination of genotypes from any other variety whose existence is generally known on the date of filing the application or on the priority date. Distinguishable characteristics may include, for example, size, color, shape or other specific characteristics of the plant.

The existence of another variety is considered to be common knowledge if on the date of filing the application or on the priority date :
  1° that other variety is already the subject of a breeder's right, or the variety is entered in an official register of varieties in any State or in an intergovernmental organization competent in this field;
  2° an application for the granting of a breeder's right or for entry in an official register of varieties has already been filed for that other variety, provided that the application has resulted in the granting of protection or entry in the register in the meantime;
  3° the cultivation or marketing of that other variety has already begun;
  4° That other variety will be in a reference collection, or accurately described in a publication.

There must be a variety that has been bred or a variety that has been discovered and further developed (Art. XI.111 WER)

2. Homogeneity

The race should homogeneous be (Art. XI.107 WER), which means that it must be sufficiently homogeneous in the expression of the traits considered in the examination of distinctiveness, as well as of any other trait used for varietal description, subject to the variation that may be expected in connection with the peculiarities peculiar to its propagation.

3. Resilience

The race should resistant be (Art. XI.108 WER), which means that the expression of the traits taken into account in the examination of distinctiveness, as well as of any other trait used for variety description, remains unchanged after successive propagations or, in the case of a special propagation cycle, at the end of each cycle

4. Novelty

The race should new be in existence at the time the plant variety right is applied for (Art. XI.109 WER). This novelty requirement is different as that of patent law. In plant variety rights, it means that variety components or harvest material of the variety have not been sold for more than one year in Belgium or four years (for trees or vines) in other countries for the purpose of exploitation prior to the filing of the application....

5. Designation

The variety must be designated by a denomination (art. XI.110 WER). The suitability of the name will be examined by the Intellectual Property Office, based on a number of conditions listed in Article 13 of the Royal Decree of May 12, 2015 (Art. XI.136 §2 WER). The name must certainly not cause confusion with the name of another variety of the same botanical species or of a related species (art. XI.1199, §3 WER). When commercializing the variety, this variety name must be used (art. XI.118 WER).

Renewal procedure for plant variety rights.

Obtaining plant variety rights is done through a formal application process. The procedure can be national, European or international, depending on the area of protection sought by the breeder. Below we discuss the main steps in the granting procedure.

1. National Procedure

For protection within Belgium, an application must be submitted by the breeder (or his rightful claimant) to the Intellectual Property Office (DIE).. Once the application is submitted, a formal examination follows, followed by the entry of the application in the Register of Applications. Then an examination on the merits occurs

The application must include information about the new variety, a technical description and a proposed variety name.

2. European Procedure

For protection in all EU member states, the grower can apply to the Community Plant Variety Office (CPVO).. The application is followed by an examination of the technical aspects of the variety to assess whether it meets the above criteria. The CPVO usually conducts this examination in cooperation with competent national research institutions.

3. International Procedure

For protection outside the European Union, growers can appeal to the UPOV Agreement. Although there is no central international application process, growers through UPOV countries can submit the same application for protection in different countries. This process is especially useful for companies that operate globally.

Content of exclusive rights

When a breeder obtains plant variety protection, it gives him a set of exclusive rights to the new plant variety. These rights are essential to enable the breeder to protect his investment and reap commercial benefits. The most important exclusive rights are:

1. Right of exclusive exploitation

Under Article XI.113, the holder of the plant variety right has the exclusive right to commercially introduce, propagate, store or market the variety components (namely, the entire plants or parts of plants).

The breeder's right, according to Article XI.114, refers not only to the protected variety itself, but also to:

• varieties that are substantially derived from the protected variety if the protected variety itself is not a substantially derived variety,
• varieties that, in accordance with Article XI.106, are not clearly distinguishable from the protected variety,
•  varieties whose production requires the repeated use of the protected variety. These are the so-called hybrid varieties.

2. Right to grant licenses.

The breeder may give others permission to use the variety by means of a license agreement. This license allows third parties to propagate and market the variety, often in exchange for a license fee. This is a popular strategy for breeders who want to exploit their varieties more widely without being actively involved in production themselves.

3. Right to take action against violations

The breeder has the right to take legal action against third parties who use the protected plant variety without permission. The grower can ask the court to stop this counterfeiting and claim damages.

Exceptions and limitations

Plant variety rights are not absolute. In certain circumstances, the law provides for exceptions that limit the free application of exclusive plant variety rights

1. The general exceptions

Article XI.116 WER provides some exceptions to the grower's exclusive rights:

a. Private and Non-Commercial Use.

The protection of plant variety rights does not apply to acts done for private and non-commercial purposes. This means that individuals may propagate the protected plant variety and use it in their own gardens or for their personal activities, as long as this use is not commercial. This offers citizens the freedom to use protected varieties without the breeder's claim.

b. Experimental purposes.

Plant breeder's rights also do not apply to acts done for experimental purposes. This allows researchers to study, test and use protected varieties for research into new varieties or other scientific applications without infringing on plant breeders' rights. This promotes innovation in the agricultural sector.

c. Breeding new varieties (Breeders' Exemption).

Plant variety rights do not prevent other breeders from using a protected variety (the genetic source) as the basis for developing improved plant varieties. This so-called breeders' exemption is a fundamental exception that states that breeders may use protected material to create a new proprietary variety. This exception is crucial to the ongoing innovation and breeding of plant varieties.

2. Farmer's Privilege

Article XI.115 WER deals with the so-called farmer's privilege, which allows farmers to keep part of their harvested material of a protected variety as seed and can do so again the following season , without needing the permission of the breeder. The details can be found in the royal decree of may 12, 2015 and applies only to certain grains and potatoes.

3. European exhaustion of plant variety rights.

Article XI.117 WER Sets the rule of exhaustion of plant variety rights. This principle means that the exclusive right of the breeder to control propagating material (being variety components, harvest materials or products made directly from them) comes to an end once he has marketed (or authorized the marketing of) such propagating material within the European Economic Area (EEA).

4. Compulsory licenses

The Minister of Economy may also curtail the breeder's right by introducing a non-exclusive compulsory license in the public interest. This will be the case when the breeder is unwilling to grant necessary licenses on fair terms so that the market can be supplied with propagating material. The Minister may also introduce a compulsory license to exploit a derivative variety or to allow a patent holder on a biotechnological invention to exploit its patent in violation of an older plant variety right.

Term of protection of plant variety rights

The term of protection of the plant variety right varies depending on the type of plant variety. Generally, plant variety rights are valid for a period of:

• 25 years for most plant varieties;
• 30 years For trees, vines and potato varieties.

However, during this period the annual fees must be paid, otherwise the breeder's right expires.

After the expiration of the above deadlines, protection expires anyway and the plant variety enters the public domain, meaning that anyone can freely propagate and trade the variety without the consent of the original breeder.

Conclusion

Plant variety rights are a powerful form of intellectual property that provide essential protection to breeders developing new, innovative plant varieties. Through the exclusive right to propagate and exploit the variety, breeders can protect their investment and gain an important competitive edge in the marketplace. The requirements for protection, such as distinctiveness, homogeneity, stability and novelty, are strict standards that ensure that only valuable new varieties are eligible for protection.

With a clear and well-organized licensing procedure at national, European and international levels, breeders can protect their varieties within the markets in which they operate. The protection period of 25 to 30 years provides sufficient time to gain a commercial advantage from their varieties, while licensing and enforcement provide the ability to deter infringement and maximize market opportunities.