- Plants Bees & Seeds
- Plant Varieties
- Plant Breeders' Rights
- Guide to applying for a compulsory licence
Guide to applying for a compulsory licence
- What is a compulsory licence?
- Who can apply for a compulsory licence?
- When can an application for a compulsory licence be made?
- How do I make an application?
- What conditions govern the grant of a compulsory licence?
- What is the effect of a compulsory licence?
- Period of freedom from compulsory licensing
- Publication of applications for compulsory licences
- Who is entitled to participate in proceedings on an application?
- Organisations and persons entitled to make representations & heard
- Fees for representations and hearings
- Appeals to the plant varieties and seeds tribunal
- Suspension of controllers decisions pending an appeal
- Application for a revocation of, or for an extension, limitation or other variation of a compulsory licence
- Repeated applications
- Failure to meet obligations imposed by a compulsory licencee
- False information
What is a compulsory licence?
A compulsory licence is a licence granted by the controller of plant variety rights in cases when a licence has been unreasonably refused or offered on unreasonable terms by the holder of plant breeders' rights.
Who can apply for a compulsory licence?
Anyone who has applied for a licence and consider that the holder of plant breeders' rights in the variety has:-
- unreasonably refused to grant a licence, or
- imposed or put forward unreasonable terms in granting, or offering to grant, a licence
may apply for a compulsory licence.
A compulsory licence may be granted whether or not the holder of plant breeders' rights has granted licences to the applicant or any other person.
When can an application for a compulsory licence be made?
An application can be submitted at any time, but a compulsory licence cannot come into force until 2 years after the granting of plant breeders rights in the variety to which it relates.
How do I make an application?
A form for applying for a compulsory licence can be downloaded or obtained from the Plant Variety Rights Office.
Please note all applications must be accompanied by the prescribed fee which at present is £60. All forms must bear an original signature and where an application is made by a company it must be signed 'for and on behalf of ' the company, by a person with authority to sign.
What conditions govern the grant of a compulsory licence?
The controller shall not grant a compulsory licence unless he is satisfied :-
- 1. that it is necessary to do so for the purpose of securing that the variety to which the application relates :-
1. is available to the public at reasonable prices,
2. is widely distributed, or
3. is maintained in quality,
- 2. that the applicant is financially and otherwise in a position to exploit in a competent and businesslike manner the rights to be conferred on him, and
- 3. that the applicant intends so to exploit those rights.
What is the effect of a compulsory licence?
The controller may grant to the licensee any such rights in respects of the protected variety as might have been granted by the holder of plant breeders' rights. These are as follows in respect of propagating material :-
- 1. production or reproduction (multiplication)
- 2. conditioning for the purpose of propagation
- 3. offering for sale
- 4. selling or other marketing
- 5. exporting
- 6. importing
- 7. stocking for any of the purposes mentioned in (a) to (f) above
Licenses issued by the controller may be granted on such terms and subject to such conditions as he feels appropriate.
Period of freedom from compulsory licensing
There is a period of 2 years from the date rights are granted, during which any compulsory licence granted would not have effect. The holder of plant breeders' rights will be entirely free to decide on their own licensing policy and the terms and conditions (including royalty payments) on which he will grant licenses during this 2 year period.
Publication of applications for compulsory licences
Applications for compulsory licences are published in the plant varieties and seeds gazette. Any person or organisation entitled to participate in proceedings, or an application for a compulsory licence, has 21 days from the date of publication in the gazette to submit representations or requests to be heard.
Who is entitled to participate in proceedings on an application?
The following are entitled to participate in the proceedings on the application for a compulsory licence by making representations and/or being heard by the controller :-
- 1. the applicant; the holder of rights;
- 2. any person who is the holder of a licence to exercise plant breeders' rights in the variety; and
- 3. any person whose financial interests are likely to be affected by the decision to grant or refuse a compulsory licence.
Organisations and persons entitled to make representations and be heard
Where the holder of plant breeders' rights to which an application for a compulsory licence relates is, or is represented by, a breeders' organisation then any other organisations or person with an interest may make representations and be heard by the controller if :-
- 1. the organisation or person has a substantial interest in the application,
- 2. the application involves issues which may affect other applications for licences,
- 3. where the application is made by an organisation, that the organisation is reasonably representative of the class of persons which it claims to represent.
If any person requests a hearing, the controller will appoint a time and place at which all of the persons concerned will be heard, and will give not less than 14 days notice of the hearing.
Fees for representations and hearings
The fees to be paid by organisations or persons making written representations is at present £30 payable on delivery of the written representations. The fee to be paid for attending a hearing is at present £60, payable before the hearing.
Appeals to the plant varieties and seeds tribunal
The holder of plant breeders' rights, the person who made the application and any other person or organisation who took advantage of the opportunity to make representations or to be heard by the controller is entitled to appeal to the plant varieties and seeds tribunal against the decision of the controller on the application.
If you are thinking of using the appeal mechanism you are strongly advised to seek your own legal advice.
Suspension of controllers decisions pending an appeal
Where notice of an appeal has been given, the operation of the decision will be suspended pending the final determination of the appeal. A notice will be published in the gazette giving details of appeals received and the suspension of decisions. Once an appeal has been heard the decision of the tribunal will be communicated to the persons concerned and published in the gazette.
Application for a revocation of, or for an extension, limitation or other variation of a compulsory licence
The controller may at any time, on the application of any person, extend, limit or in any other respect vary a compulsory licence, or revoke it.
Applications may be made as set out in section 4 and the procedure to be followed is the same as for applying for a compulsory licence.
If a repeated application is made the controller may refuse to entertain it if it appears to have been made without reasonable cause. A repeated application means an application made in similar circumstances on the same subject made within 12 months of the previous application.
Failure to meet obligations imposed by a compulsory licence
The controller may suspend the exercise of any plant breeders' rights if, on application by the holder of a compulsory licence he is satisfied that the holder of rights is in breach of any obligation imposed on him by the licence.
It is a criminal offence for any person to, knowingly or recklessly give false information to the controller in an application for a compulsory licence (or for the revocation, extension, limitation or other variation of a compulsory licence). The penalty for this would be a fine not exceeding level 3.