11 April 2012

Plant Variety Rights – an Alternative ‘Root’ of Protection

Readers are likely to be aware of the four main types of intellectual property protection, patents, design rights, trade marks and copyright. However, some of you may be surprised to hear of another form of intellectual property right, plant variety rights.

As the name suggests, plant variety rights protect different plant varieties, that is, plants belonging to the same species but distinguishable from each other by one or more characteristics. Such characteristics can be anything from plant height or leaf colour, to herbicide or disease resistance, to give just a few examples. To be eligible for a plant variety right, the particular characteristics of a plant variety must be uniform across individual plants, and they must remain unchanged from one generation to the next.

Although they are not as well known as other forms of intellectual property right, plant variety rights can be an important and useful form of protection for a number of reasons.

Firstly, although plants can usually be protected by patents, in some jurisdictions, including the UK and Europe, patents claiming specific varieties of plants are not permitted.

Secondly, as for patents, to be eligible for protection the plant variety has to be new. However, the novelty requirement for plant variety rights is more generous than that for patents, with many jurisdictions allowing the plant variety to be sold within the relevant territory (i.e. within the EU for a Community plant variety right) for up to one year before the application is made. Even more generously, the plant variety can be sold outside the territory for much longer, allowing the sale of trees and vines for up to six years and the sale of other types of plants for up to four years before an application has to be made. As a result, following a disclosure that would destroy the novelty of a patent, a plant variety may still be eligible for a plant variety right application.

Furthermore, in contrast with patents, there is no requirement for the characteristics of the plant variety to be inventive. So a plant variety right may be a useful form of protection when it is obvious to produce a plant variety with a particular combination of characteristics. An equivalent patent application could fall foul of the inventive step requirements.

Lastly, a plant variety right gives a good level of protection. Subject to a few exceptions, the rights holder has exclusive control over the variety, enabling the rights holder to prevent others from doing certain acts, including producing, selling, stocking, exporting or importing the protected variety without permission. In addition, a plant variety right can last for a considerable amount of time, with protection for most plants lasting for up to 25 years, and for up to 30 years for trees and vines. In combination with the comparatively low application costs, a plant variety right can be a cost-effective way of protecting developments in the technical field of plants.

Given these advantages, it’s worth sparing a thought as to whether your work can be protected by one or more plant variety rights, either alone or in combination with patent protection.