However, this protection is limited to the territory of the state that granted it, so that an application must be filed with the competent authority in each of the states where protection is desired.
Since 1995, breeders of new plant varieties can apply for protection throughout the EU with a single application to the Community Plant Variety Office (CPVO).
In this article, we describe the procedure to follow to obtain a PVR in the EU.
1. Who to contact and what are the applicable laws?
Applications for Community PVR must be filed with the Community Plant Variety Office (CPVO) since its creation in 1995, as part of the International Union for the Protection of New Varieties of Plants (UPOV). The CPVO is the EU body exclusively responsible for the implementation of the PVP system. The headquarters of the CPVO is located in Angers, France.
The Community plant variety rights regime is dictated by the Council Regulation n°2100/94 (hereinafter the “Regulation”). This Regulation transposed the International Convention for the Protection of New Varieties of Plants (UPOV Convention) adopted in 1961, in particular the 1991 Act revising the UPOV Convention. This Convention allowed the creation of UPOV.
2. Who can / must file the application for a PVR ?
The Community plant variety right is entitled to the person who bred or discovered and developed the variety (the breeder), or his successor in title (Article 11 of the Regulation). Failure to comply with this condition may lead to the refusal of the application for a PVR (Article 60 of the Regulation).
3. What are the criteria for granting a PVR by CPVO?
3.1. The plant to be protected must be a “variety” as defined in Article 5 of the Regulation. Thus, the plant must belong to a single botanical taxon of the lowest known rank, which can be :
« – defined by the expression of the characteristics that results from a given genotype or combination of genotypes,
– distinguished from any other plant grouping by the expression of at least one of the said characteristics, and
– considered as a unit with regard to its suitability for being propagated unchanged. »
3.2. The variety must then meet the conditions of distinctness, uniformity, stability and novelty (Article 6 of the Regulation):
« A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application » (Article 7.1 of the Regulation).
« A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any others used for the variety description. » (Article 8 of the Regulation).
« A variety shall be deemed to be stable if the expression of the 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 such cycle. » (Article 9 of the Regulation).
« A variety shall be deemed to be new if, at the date of application determined pursuant to Article 51, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder within the meaning of Article 11, for purposes of exploitation of the variety:
(a) earlier than one year before the abovementioned date, within the territory of the Community;
(b) earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community. » (Article 10.1 of the Regulation).
The conditions of distinctness, uniformity and stability (DUS) are subject to a technical examination under the responsibility of the CPVO. The CPVO entrusts this technical examination to an examination office (EO) authorized to test allocated species (Article 55 of the Regulation).
In practice, the applicant sends the plant material to the EO allocated to his variety, upon notification by the CPVO. After reception, the EO :
– identifies the closest varieties in its collections,
– sows/plants the plant material in the field/greenhouse, and
– checks the uniformity and stability of the plant and its distinctness by comparing it with the closest varieties.
Once the technical examination is finalized, the EO issues an examination report. The applicant has the opportunity to comment on this report and the variety description within two months. After this period and if no obstacles have been found with regard to the variety denomination proposed by the breeder (see below), the CPVO decides on the Community PVR application. The decision is taken under the authority of the President of the Office by a committee composed of four members, two of whom have technical qualifications, one of whom has legal qualifications and one of whom is in charge of the approval of the proposed variety denomination (see below).
3.3 Finally, the variety name proposed by the breeder must be approved as a variety denomination by the CPVO (Article 6 of the Regulation). For that purpose, the CPVO checks that the proposed name fulfils the conditions laid down in Article 63 of the Regulation. In this case, the name must be free of prior rights (available) and easy to recognize or reproduce by its users. In addition, the name must not be identical to, or confusable with, other names. It must not be liable to mislead or to cause confusion concerning the characteristics, value or identity of the variety or the identity of the breeder. It must not, moreover, contravene accepted principles of morality in any of the Member States or be contrary to public policy.
The procedure for the approval of a variety denomination comprises several steps. When the CPVO receives a proposal for a variety denomination, it is checked. If there is an obstacle to the denomination, the applicant is informed and has the opportunity to submit comments or a new variety denomination proposal. If there is no obstacle, it is published in the Official Bulletin. Approval is concomitant to the decision to grant a title of protection. Once the denomination is approved and the variety is protected, it shall be compulsory to use the variety denomination for any commercial purpose, even if a trademark is associated with it.
4. Is it expensive to file a Community PVR?
The filing of a PVR application implies the payment of a filing fee amounting to 450€ for an online application or 800€ for a paper application (amounts in force in November 2022).
The amounts of the examination fees are determined by the fee regulation in force. The amount payable for each growing period varies from 1900€ to 3900€, depending on the species to which the variety belongs. The cost of the examination can therefore be very high for varieties that need to be cultivated over several years.
An annual fee is also due from the granting of the PVR. The flat rate is 330€ per variety and per year of protection.
Overview of fees to be paid to the CPVO
Online application : 450€ Paper application : 800€
From 1900€ to 3900€ for each growing period varies (depending on the species)
330€ per year
5. Where and when will the PVR application be published?
The CPVO keeps a register of applications for Community plant variety rights (Article 87 of the Regulation).
Every two months (even months), the CPVO publishes an Official Gazette on its website which indicates the changes in the Office’s register over the two-month period since the previous publication, including the granted PVRs (Article 89 of the Regulation).
The information made available to the public is defined by Article 87 of the Regulation:
For each application for protection: mention of the taxon, the provisional denomination of the variety, the date of filing, as well as the name and address of the applicant, the breeder and any representative concerned;
Variety denominations proposed by the applicant in the context of an application for protection;
For each PVR granted:
the species and variety denomination ;
the official description of the variety or a reference to the documents in the possession of the Office which contain this official description as part of the register;
in the case of varieties requiring, for the production of material, the repeated use of material of certain components, the mention of these components;
the name and address of the holder, the breeder and any representative concerned;
the date of commencement and termination of the Community protection, as well as the reason for the termination;
exclusive or compulsory licenses (on request only);
Changes of the applicant or the holder of the PVR;
The end of the protection: abandonment by the holder, lapse of rights, withdrawal of applications, etc.
Documents relating to a PVR application or issued PVR, or to growing of varieties for the purposes of their technical examination or for the verification of their continuing existence, are accessible only upon request, in case of legitimate interest (Article 88 of the Regulation).
Once the application for a variety right has been published, any person may submit to the CPVO a written objection to the grant of protection. The authors of the objections acquire, alongside the applicant, the status of parties to the procedure. They can then have access to the documents of the procedure, including the results of the technical examination and the description of the variety (Article 59 of the Regulation).
Objections may only be raised on the following grounds:
(a) the conditions of distinctness, uniformity, stability, novelty, set out in Articles 7 to 10 of the Regulations are not fulfilled;
(b) the applicant is not the owner of the right to protection, i.e. the person who bred or discovered and developed the variety, or his successor in title (Article 11 of the Regulations, see section 2 above)
(c) the denomination proposed by the applicant does not meet the requirements of Article 63 of the Regulations (see Section 3.3 above).
6. How long does the examination of the PVR application last? How long does the protection conferred by a PVR last?
The duration of the examination is important because, unlike patents, the duration of protection of a PVR takes into account the date of grant.
The duration of the examination depends in part on the date on which the PVR application is filed, in relation to the growing season for the variety in question: the examination of a variety filed after the start of a vegetative cycle will be postponed to the following cycle, and will therefore be greatly extended. The closing and submission dates of the plant material are published on the page ‘Plant material submission to entrusted Examination Offices – S2/S3 Publication’, available on the CPVO website.
When the candidate variety has successfully passed all the administrative and technical examination phases, the CPVO issues a decision to grant protection (Article 62 of the Regulation). Conversely, if one of the criteria is not fulfilled, the CPVO refuses the application for protection (Article 61 of the Regulation).
7. What are the obligations related to the issuance of a PVR?
Article 64 of the Regulation requires the maintenance of the protected variety as such, during the whole life of the PVR. The Office can check whether the protected varieties continue to exist as such. For this purpose, a technical verification similar to the DUS technical examination is carried out (see Section 3 above).
According to Article 17 of the Regulation, the holder must use the denomination accepted by the CPVO in any commercial transaction, even after the expiry of the duration of the certificate.
In addition, the annual fees for the maintenance of the Community plant variety right must be paid (Article 21 of the Regulation).
While the costs associated with filing and examining the Community PVR application, or with maintaining the Community title, are higher than those associated with the French PVC, Community PVRs nevertheless provide a number of advantages.
Firstly, the protection conferred by a Community PVR is valid throughout the EU.
The CPVO also offers various additional options, such as the possibility to appeal against most of the Office’s decisions (Articles 67 to 72 of the Regulation). There are also provisions for reinstatement (“restitutio in integrum”) of a Community plant variety right application or a granted Community plant variety right, where a time limit could not be observed by the applicant or holder, ” in spite of having taken all due care in the particular circumstances ” (Article 80 of the Regulation). Moreover, Article 77 of the Regulation allows for an oral procedure to be held, either on the initiative of the CPVO or at the request of one of the parties to proceedings.
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