Long-time readers of this blog will know that Plants For Europe has been actively campaigning to get Plant Variety Rights included in the new “Patent Box” that the Government has planned to introduce. (For those that do not know, the Patent Box enables companies to pay a reduced rate of Corporation Tax – 10% instead of 20% to 27.5% – on profits derived from patents and certain other intellectual property, subject to conditions). We have been keen to see PVR included because the law prevents anyone from taking out a patent in a new plant variety and to exclude PVR would have been invidious.

We are absolutely delighted that the Government has now brought forward draft legislation to bring the Patent Box into law, effective from next year, and that they say that PVR will be included. However, whilst the guidance notes say that PVR are included (and one assumes that will be both UK PVR issued by the Plant Variety Rights Office (PVRO) and Community Plant Variety Rights issued by the Community Plant Varieties Office (CPVO)), we see no specific mention of PVR in the draft legislation – merely reference to the potential for Government to add to the list of included IP by Statutory Instrument. When will such an SI be brought forward?

We also notice that for “licensed-in” IP, there is a requirement for exclusivity, at least at national level. Our understanding is that a national exclusivity would be in conflict with EU competition/freedom of movement of goods legislation.

We shall be consulting on these matters and seeking clarity from Government.

There are changes currently in progress at the US Patent and Trademark Office (USPTO), the result of the new America Invents Act (AIA) which is introducing some of the biggest changes in patent law seen in the US for many years.

In the US, new plant varieties that are propagated asexually are generally protected by Plant Patent as the US does not have a sui generis system of Plant Variety Rights that covers asexually reproduced plant varieties. Consequently, changes to patent law have implications for breeders of new plant varieties. PFE is currently studying these changes and will post more on them here in the coming days and weeks. Of course, please remember that PFE is a breeder agency, not a law firm, so please consider these posts as only our interpretation of the law and not to be considered as legal advice.

One of the interesting changes is the adoption of a new discounted fee structure for "micro-entities". For some time, there has been a 50% fee discount for "small entities" – individuals, businesses with less than 500 employees and not-for-profit organisations. The new fee structure (which, incidentally, sees an increase in fees payable to the USPTO in the order of 15%) now allows a 75% reduction in fees for micro-entities. There are detailed requirements that need to be satisfied in order to qualify for this and you should ask us for more details or seek independent advice. However, the essence of this is that individuals with no more than four previous applications for patent at the USPTO and with gross annual income of less than three times the US median household income (as published by the US Census Bureau; 2010 figure: USD49,445) would qualify as micro-entities. Educational establishments would also qualify.

All that said, although the new micro-entity discount was supposed to come into effect last month, the USPTO has not yet said when it will actually make the new discount available to applicants. We must hope that it is soon.

This will certainly be of benefit to the small, independent, backyard breeder. It may also be beneficial for anyone starting out in breeding. If PFE is able to obtain the discount when making US Plant Patent applications on your behalf, please be assured that we will pass the discount to you.

A successful prosecution has been brought for breach of PVR in the UK. The sentence includes a suspended prison term (for those not familiar with UK law, this means that the defendant can walk home from court but, should they offend again, they won’t go back to court – they’ll go straight to prison!). Fines and costs totalled GBP 90,000.

Full details can be found here.

This should act as a warning to anyone who thinks that the consequences of ignoring PVR are trivial. Breaching intellectual property rights could cost you not just money, but your livelihood and potentially your freedom. If you believe you have royalties to declare, contact us now before we contact you!

Further coverage:

• Official DEFRA press information
• Farmers’ Weekly
• UPDATE: Horticulture Week

That’s quite a job!

The full job specification can be found by clicking here.

We shall watch this closely to see who is appointed and will then speculate wildly to try and second guess what the appointment will mean for the future of the CPVO and European PVRs.

There are two news stories this week related to Plant Variety Rights – both are worth looking at.

Firstly, Marco van Noort and Blooms of Bressingham have come to agreement over a long running dispute concerning two very similar varieties of Geranium, Rozanne (Gerwat) and Jolly Bee. Horticulture Week covers the story here. As I have written in the comments at Horticulture Week, I think that this whole episode illustrates the need for more robust DUS testing during the PVR application process and, in particular, an increase in the “minimum distance” between a candidate variety and the comparator varieties. CIOPORA has a working group on DUS at the moment, so I’m hoping that the organisation will soon have a strong lobbying position to take to the CPVO and others. My impression from the recent CIOPORA conference in Seville was that breeders generally would prefer to see minimum distances increased, provided of course that we have an understanding of what the minimum distance required to pass the distinctiveness test should be.

Secondly, the long-running Schräder versus CPVO case seems finally to have reached a conclusion. IPKat reports on it here and the official record of the judgment of the European Court of Justice can be found here. This judgment will give the CPVO more confidence, I think, and reinforces its existing procedures. It also rather serves as a salutary warning for applicants that they really need to be sure of their facts! I honestly think that, if the applicant is invited to the DUS examination trial and cannot identify his own variety when growing alongside the comparator, trouble lies ahead!

Horticulture Week has picked up the story on the exclusion of Plant Variety Rights from the proposed “Patent Box”. See here.