11 Quick Questions and Answers About Plant Breeding Protection


23. July 2021

By Manuel Lobato. Lawyer.

 

1) I create a new variety of plants, Do I have protection as a breeder?

Yes, the breeders that have developed or created a new variety can request the recognition of their right over the variety through an application filed before the correspondent National Authorities that are in charge of their registration.

2) How do the Countries recognize my right over the variety?

Through the granting of a Breeder’s Title, in favor of a natural person or legal entity, who through an improvement process has obtained and developed a plant variety of any genus and species, which must comply with some specific requirements.

3) What are the rights that I obtain once my ownership over the variety is recognized through the title issued by the National Authority?

The main right granted by the breeder’s title is the possibility of the variety’s creator is to exploit exclusively by themselves or through a third party, in a specified period of time, and prevent third parties from exploiting said creation.

4) What is the purpose of protecting PV rights?

As any intellectual property asset, the objectives are:

a) General: To promote the progress of science and technology from the creation and development of new varieties with distinctive characteristics that allow better and higher performance in different areas.

b) Particular: Through the temporary recognition of the breeder’s right to exclusively exploit the variety created, it allows it to act as a consideration for the contribution it has made to the progress of science, technology, industry, and the economy in this matter, reconciling the particular right of the breeder, with the general of the society.

5) Taking into consideration that my right is temporarily protected, what is the extension of time?

It varies depending on the Country. There are some international treaties that establish and try to homogenize the different periods of time, bearing in mind the kind of variety.

6) How is the procedure before the National Authorities?

During the application procedure for a plant variety, the national authority in charge of applying the plant variety law performs an examination of compliance regarding formal requirements and then an examination of compliance with substantial requirements to finally grant the exclusive right over the variety.

7) What are the formal requirements that must be complied with by the applicant?

It depends on the application Country, but in general, some of them are described in most of the laws around the world. E.g.:

a. Name, address, and nationality of the applicant and the breeder when acting through a representative.

b. Common and scientific name of the species.

c. Indication of the proposed generic name.

d. Identification of the breeder and place where the variety was obtained, indicating the country of origin.

e. Morphological, physiological, health, phenological, physicochemical aspects and the most outstanding industrial or technological qualities that allow its varietal description.

f. Genetic origin of the variety.

g. Geographical origin of the plant’s raw material of the new variety to be protected

h. The application for the breeder’s certificate for a protected variety abroad must indicate all the countries in which said certificate is registered, including the date of registration.

8) What are the substantive requirements that must be complied with?

The new variety must meet the requirements of novelty, distinctiveness, uniformity, and stability. These are requirements are tested by the correspondent national authority of the applicant’s Country.

9) Does the application procedure have a cost?

In general, the applicant will have to pay the correspondent official taxes related to the different stages of the procedure -e-g: application fee, a publication fee of the variety in the Official Gazette, DUS test performed by the authority.

The applicant can file the application on their own, but it is necessary to point out that the procedure requires specific expertise to follow up the application through the different stages until the issuance of the breeder’s title. That is why it is advisable to consult with experts -engineers and lawyers- that can advise the applicant in connection with the best way to prepare and file the application, do the follow-up, answer the correspondent office actions handed down by the Authority, to avoid mistakes and objections.

10) Could I commercialize the variety?

In some countries the procedure foe obtaining the correspondent certificate to commercialize the variety follows a different and parallel procedure of the one followed to obtain the breeder’s certificate.

11) I want to protect my variety in more than one country, could I file multiple applications?

The answer is yes. It is possible for the applicant to file multiple applications in many countries. The protection of the new variety is territorial. It is necessary to take into consideration the date when the first application is filed in order to claim the correspondent priority over the new variety

 

If you require any type of advice on plant variety protection, at Moeller IP Advisors we have an extensive network of professionals worldwide to satisfy your interests.
Contact our Relationship Managers for more details and information in this regard: Vivianne Cardoso and Amar Kashmir or you can write to us directly at the following email: legal@moellerip.com. Moeller’s legal department is headed by Mr. Mariano Municoy -find his profile in detail here.

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