The commercial success of your new plant depends entirely on the ability to secure Plant Variety Rights (PVR), or other intellectual property rights protection. Without such protection, there is no obligation upon any grower to pay royalties.

Phygelius Croftway Yellow SovereignPlant Variety Rights are administered by governmental bodies in each country where PVR legislation is adopted, all of whom follow rules and guidelines established under the UPOV Convention. The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization with headquarters in Geneva. UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. UPOV does not administer PVRs, it merely establishes the rules by which the national administration bodies function.

In the European Union, there exists a single body which administers Plant Variety Rights for all 25 member states. This is the Community Plant Varieties Office (CPVO), which has its headquarters in Angers, France. Holding a CPVO-administered European right supercedes any national rights held within any of the member states, and that right is legally enforceable in any and all of the member states.

A holder of an EU-PVR is entitled to control (in effect, demand payment for):

  1. production or reproduction (multiplication);
  2. conditioning for the purpose of propagation;
  3. offering for sale;
  4. selling or other marketing;
  5. exporting from the EU to other parts of the world;
  6. importing into the EU;
  7. stocking for any of the purposes mentioned under points (a) to (f).

In practice, most royalties are paid either on the quantity propagated or on the number sold. Sometimes they are also paid on harvested material like fruit or cut flowers. In general, PVRs are valid for 25 years from the date they are granted.

It is important to remember that the CPVO does not enforce PVRs, it merely administers applications for and grant of PVR. It is the responsibility of the holder of the PVR to ensure that the right is not being flouted by unauthorised production. Part of PFE’s role is to assist in policing your rights.

A few uses of protected plants do not fall under the scope of the PVR, the most important ones being:

  1. acts done privately and for non-commercial purposes;
  2. acts done for experimental purposes;
  3. acts done for the purpose of breeding, or discovering and developing other varieties.

Although breeding work by others that involves your protected plant is permitted, you do have a claim over any Essentially Derived Varieties (EDVs). The concept of EDV was introduced in order to avoid plagiarism. An EDV is a variety which is distinct and predominantly derived from a PVR-protected variety, while retaining the essential characteristics of that initial variety.

EDVs may be obtained, for example, by the selection of a sport, backcrossing, or transformation by genetic engineering. The commercialization of an EDV needs the authorization of the owner of the rights in the initial variety.

In general, it is good manners (and will avoid legal wrangling in the future) to contact the owner of any plant that is PVR-protected that you have used to develop your new variety. This area of law is largely untested with regard to ornamental plants, but any cases would most likely prove to be very expensive to prosecute or defend.

The process of applying for PVR is discussed more fully in the section “Applying for PVR and other protection”. However, the main thing to remember is that your new variety must be:

  • Novel – it must be truly “new” and developed, bred, selected or otherwise owned by you. This generally means that the plant has not been commercially exploited more than one calendar year before the date of application for PVR.
  • Distinct – it must be different from other varieties that are already in commerce or generally known.
  • Uniform – it must be possible to propagate plants (by seed or by vegetative means) that will be just like the parent plant.
  • Stable – the plant must not habitually produce sports and reversions such that it is not possible to keep the plant unchanged.

The first criterion, novelty, will be assessed by the PVR authorities at the time of application, and it is normal for the applicant to have to make a formal declaration that the plant satisfies this requirement.

The last three criteria will be assessed by the PVR authorities by means of growing trials, usually referred to as DUS testing (DUS being an acronym for distinctiveness, uniformity and stability). In the case of the CPVO, these tests are conducted at one of a series of testing stations scattered across the EU. It is the responsibility of the applicant to provide plant material for the DUS test and ensure its safe delivery to the testing station. PFE will, of course, assist in this regard.

The last two criteria, uniformity and stability, raise particular issues for variegated plants, for which successful applications for PVR can sometimes be problematic, particularly if the plant does tend to produce reversions. Please contact us if you wish to discuss this further with regard to a particular plant.

Whilst most signatories to the UPOV Convention operate legislation very similar to that applied by the CPVO, it is worth highlighting that the rules for the United States are somewhat different. In the US, a system of Plant Patents has been adopted. This has advantages and disadvantages over the PVR system, but it is useful and important to consider protection for the United States right from the outset. If you would like to discuss Plant Patents, please do not hesitate to contact us.

Click here to learn how the breeder can earn royalties over the lifetime of the variety.