Frequently Asked Questions
What species can be protected?
All plant species may be protected by UK Plant Breeders' Rights. However, where new tests have to be devised to cater for new species, applicants may be asked to propose a testing method and meet the full costs of these tests.
Who can apply for Plant Breeders' Rights?
An application for Plant Breeders Rights must be made by the person who bred or discovered and developed the variety, or his successor in title (referred to as the "breeder")
If a person breeds a variety, or discovers and develops it in the course of his employment, then, unless there is agreement to the contrary, the employer (or employer's successor in title) is the person entitled to the grant of rights.
Can I use an agent?
An applicant for plant breeders' rights may make an application through an agent. Applicants from outside the European Union (EU) must nominate an address for service or agent within the EU. If an agent is to be used, written authorisation from the applicant is required to confirm appointment of an agent. An "authorisation of agent" form is available for this purpose. All correspondence and requests for fees are directed to the agent and PVSD has no direct contact with the applicant.
Is it possible to transfer rights?
The breeder may assign (i.e. transfer) the rights in the variety to another person or company and thus forfeit any future claim on the variety. If rights are assigned to another person or company, written evidence from the breeder is required. An "assignment of rights" form is available for this purpose. Once rights are assigned, PVSD will have no further contact with the breeder and the grant of rights certificate will be issued in the name of the person or company to whom rights have been assigned.
What criteria must a plant variety meet to obtain plant breeders rights?
Once you have applied, seed/plant material of the variety will be requested for official tests designed to assess whether the variety is distinct, uniform and stable (DUS). The variety must also be new.
Varieties that meet the following criteria are eligible for a grant plant breeders' rights:-
A variety is deemed to be distinct if it is clearly distinguishable by one or more characteristics which are capable of a precise description from any other variety whose existence is a matter of common knowledge at the time of the application.
A variety is in common knowledge if :-
- It is, or has been, the subject of a plant variety right in any country;
- It is, or has been, entered in an official register (i.e. National List) of plant varieties in any country; or
- An application for plant breeders' rights or entry in an official register is under consideration in any country, provided the application is successful.
A variety may also be in common knowledge if it is already in cultivation, has been exploited for commercial purposes, is held in a recognised reference collection or has a precise description in any publication.
A variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in those characteristics which are included in the examination for distinctness.
A variety is stable if those 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 cycle.
A variety is new if propagating or harvested material has not been sold or otherwise disposed of, for the purpose of exploiting the variety, with the consent of the applicant :-
- in the UK earlier than 1 year before the date of application, and
- outside the UK earlier than 4 years (6 years in the case of trees or vines) before the date of application.
When does protection start?
Plant Breeders' Rights are normally exercised once a grant of rights has been made by the PVSD. However, once this has been done, the holder is entitled to "reasonable" compensation for anything done during the application period which, had it been done after rights were granted, would have constituted an infringement. The application period begins on the day the application is published in the Gazette and ends with the granting of rights.
In the event of dispute, it would ultimately be for the courts to determine what constitutes "reasonable" compensation.
What rights are there for Hybrids and Essentially Derived varieties?
Dependent varieties are those whose production requires the repeated use of the protected variety (i.e. hybrids), or those which are essentially derived from a protected variety which is not itself essentially derived.
A variety is deemed to be essentially derived from another (initial) variety if it is predominantly derived from the initial variety, and it retains the essential characteristics resulting from the genotype, or combination of genotypes, of the initial variety. The PVSD has no role in deciding whether a variety is essentially derived or not. This is a private, commercial matter which, in the event of dispute, may be for the courts to resolve.