Unlike other IP rights, an application for PVC protection therefore requires the provision of live material, ready to be planted. This material will be planted under the conditions specified by the applicant, and then the growth of the plant will be observed to verify that the eligibility criteria for the grant of the PVC are met.
The examination procedure for a PVC can therefore be very long, especially for certain tree varieties. Contrary to patents, the duration of protection is calculated from the granting of the PVC, and not from its filing.
In this article, we describe the procedure to follow to obtain a PVC protecting a plant variety on French territory.
French PVC applications must now be filed with the “Instance Nationale des Obtentions Végétales” (INOV). This new authority, located in Beaucouzé (49), was created in 2014 (Decree 2014-731). It replaces the “Comité de la Protection des Obtentions Végétales” (CPOV), operating since 1971, which was located in Paris and chaired by a Magistrate of the Court of Appeal of Paris or the Tribunal de Grande Instance of Paris (Decree n°71-454 of June 7, 1971). The team in charge of the reception and processing of applications within INOV has been restricted to two persons (a manager and a secretary), considering the low number of applications received each year since the creation of the European Community Plant Variety Office in 1995.
Until 2011, the plant variety protection system was dictated by Law n° 70-489 of June 11, 1970. Ten years ago, a new law was enacted to transpose the 1991 UPOV Convention and to strengthen the PVC system, legalize the practice of farm-saved seeds and propose a method of remuneration for breeders (Law 2011-1843 of December 8, 2011). This law modified and completed articles L623-1 to L623-25 and articles R623-1 to R623-58 of the French Intellectual Property Code (CPI) governing the protection of new plant varieties in France.
Good to know: The application forms for PVCs are available on the GEVES website. They should be filled in and sent to INOV either by hand (to the INOV secretariat), or by post, or by electronic means, or by semi-electronic means on the UPOV platform.
A French PVC can be applied for at INOV by any person who is a national of a State party to the International Convention for the Protection of New Varieties of Plants as well as by any person who is a national of a Member State of the European Union or who has his domicile, seat or establishment in one of these States (L623-6CPI).
A person domiciled in another State may also benefit from PVC protection in France if that other State authorizes French nationals to benefit from PVC protection on its territory (L623-6CPI, last paragraph). Natural or legal persons in this category must, within two months of receiving notification to this effect, appoint an agent whose domicile, headquarters or establishment is in a Member State of the European Union (R623-3 CPI).
The candidate plant for PVC protection must meet a number of criteria:
i) first, it must be a “variety”, i.e., it must constitute a plant grouping of a botanical taxon of the lowest known rank, defined by the expression of the characteristics resulting from a certain genotype (or a certain combination of genotypes), which can be distinguished from any other plant grouping by the expression of at least one of the said characteristics; and which can be considered as an entity with regard to its suitability for being reproduced, in accordance with the law (L623-1CPI).
ii) Secondly, the variety must meet the “breeding” criterion, i.e., it must be the result of research, crossbreeding or stabilization, and not simply the result of a discovery (of a plant existing in nature).
iii) In addition, on the date of filing of the application for a PVC, the candidate variety (propagating material or harvested product) must not have been sold or given to a third party for exploitation for more than one year on French territory or on the territory of the European Economic Area, or for more than four or six years (depending on the species) on another territory. This is the “novelty” criterion, defined in article L623-5CPI paragraph I. The breeder must therefore ensure that he files his application for a PVC within the prescribed period, calculated from the date of the first sale / transmission to a third party, by himself or with his consent.
Good to know: The breeder is authorized to supply his variety to an official or officially authorized body even beyond these deadlines, without prejudice to his application for a PVC. An exception is also provided so that the variety can be transmitted to a third party, outside these deadlines, for the purposes of experimentation or presentation in an officially recognized exhibition, but only, in these two cases, if the breeder has expressly stipulated the prohibition of commercial exploitation of the variety of which the material has been transmitted (L623-5CPI paragraph II).
iv) In addition, the variety must be recognized as a “new plant variety” in relation to the varieties of third parties that constitute the state of the art, i.e., it must be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the date of filing of the application. This is the criterion of “distinctness” defined in article L623-2CPI al.1. To evaluate this criterion, the phenotypic characteristics of the candidate variety are compared to those of all the varieties listed in the same species. About ten different characteristics are studied (shape and size of leaves, size of plants, color, shape and size of flowers, etc.).
v) The candidate variety must also be “uniform” (L623-2CPI al.2), i.e., it must be sufficiently uniform in its relevant characteristics (subject to the variation that may be expected from the particular features of its sexual reproduction or vegetative propagation). To assess this criterion, several (>5) samples of the candidate variety are planted at the same time and their phenotypic characteristics are compared. If the plants do not respond identically, then the PVC application may be rejected.
vi) The candidate variety must also remain “stable”, i.e., it must remain identical to its initial definition following successive propagation or, in the case of a particular cycle of propagation, at the end of each cycle (L623-2CPI al.3).
To evaluate the three criteria (iv) – (vi), the candidate variety is subjected to a technical examination called “DUS” (for “Distinctness, Uniformity and Stability”). This examination is carried out by an Examination Office (EO) chosen by – and under the responsibility of – INOV. This EO is generally the “Groupe d’Étude et de Contrôle des Variétés Et des Semences” (GEVES), located in Angers (except if this one does not have the appropriate technical skills for the examination of the variety; in this case, INOV will entrust the examination of the candidate variety to another Office, chosen within the European Union). In practice, the applicant is informed by INOV of the EO assigned to his variety and is asked to send a sample of the plant material so that the DUS test can be initiated in the field / greenhouse.
(vii) Finally, for a certificate to be issued, the candidate plant variety must have a name approved by INOV. Proposed by the applicant in the application form, the “variety denomination” is rigorously examined to verify its availability and eligibility according to the regulations in force: this denomination must indeed make it possible “to identify the variety in relation to any other variety and to avoid any risk of confusion with any other variety of the same botanical species or of a similar species, in France or in the States party to the International Convention for the Protection of New Varieties of Plants. It must not be likely to mislead or cause confusion as to the origin, provenance, characteristics or value of the variety or the person of the breeder. It must not be contrary to morality or public order” (R623-6 CPI).
The examination of denominations is carried out by the Denomination Commission composed of INOV and the Secretariat of the Permanent Technical Committee for the Selection of Cultivated Plants. It essentially consists in checking the availability of the name proposed by the applicant in the databases listing all the varieties authorized in the world (CPVO Variety Finder, PLUTO, plant patents, etc.), and the eligibility criteria mentioned in article R623-6CPI. If one of the criteria is not met, INOV notifies the refusal of this proposal to the applicant, who can then propose a new denomination of his choice.
Good to know: the criterion of “availability” does not require the use of a name which has never been used before, to qualify an authorized variety. Thus, it is theoretically possible to reuse the name of a variety that has been used in the distant past and then removed from the registers at the request of the applicant. The only thing that matters is that no confusion or ambiguity can be made between the candidate variety and the previous variety. We advise you to carry out this availability search yourself before submitting the application form, in order to avoid going back and forth with INOV. You can also ask INOV to carry out an availability search of a series of name proposals before filing your application. These name tests, for which a fee is charged, are to be requested from the GEVES secretariat.
It is possible not to propose any variety name at the time of the filing of the PVC application. However, this information must be provided to INOV within two months of the notification sent by INOV and the required fee must be paid. The PVC will not be granted until an acceptable denomination has been proposed by the applicant.
It is also possible to change his mind and propose another variety denomination during the examination process, which, if approved by INOV, will replace the one initially submitted.
The variety denomination, once approved by INOV and published in the Official Bulletin of INOV, will be associated with the variety ad vitam aeternam, even after the expiration of the title.
The cost of a PVC filing in France is higher than that of a French patent application, due to the significant amount of the fee due for the “full-scale” examination, which ranges between 900 euros and 1300 euros depending on the species.
On the other hand, the filing and issuing fees are low (100 and 40 euros respectively).
The filing and examination fees are to be paid when filing with INOV, while the issuance fee is to be paid at the end of the examination.
The annual fees for the maintenance of the certificates from the moment of their issuance are between 40 and 150 euros (their value increases during the first years, until reaching the ceiling of 150 euros from the 7th year).
The PVC is enforceable against third parties from the date of publication of the corresponding application (L613-25CPI). This publication takes place in the Official Bulletin of the INOV (which is published monthly), as soon as possible after the filing of the PVC application (R623-39CPI).
The information made available to the public is divided into the following sections (R623-39CPI):
Once the application for a PVC has been published, any third party with an interest in it may submit observations to INOV that may prevent the grant of a PVC. The deadline for doing so is two months from the publication (R623-17CPI). The observations are notified to the applicant, who must respond within the time limit imposed by INOV (R623-20CPI).
Good to know: It is not possible to find online the documents exchanged by the applicant and INOV (unlike the INPI register for patents). However, it is possible to ask INOV to see a copy of the documents relating to the filing, the examination procedure, at its own expense and, in general, to receive all information on the application in question, by contacting INOV directly (R623-29CPI).
The duration of the examination is important because, contrary to patents, the duration of protection of a PVC is calculated from its date of issuance and not from its date of filing (L623-13CPI).
However, the duration of the examination depends in part on the date on which the PVC application is filed, in particular in relation to the growing season for the variety in question: the examination of a variety filed after the start of a growing cycle will be postponed to the following cycle and the examination will therefore be considerably lengthened. To know the deadlines of deposit for each species of plant, it is advisable to contact INOV. When the candidate variety has successfully passed all the administrative and technical instruction phases, the applicant receives a “Notification of Grant”. On the contrary, if one of the criteria is not met, the applicant receives a “Notification of refusal of grant”.
Good to know: The duration of the protection granted is, for most plants, twenty-five years from the date of issue of the PVC. Some plants benefit from a longer term of protection: 30 years for forest, fruit or ornamental trees, for vines, as well as for perennial grasses and forage legumes, potatoes and inbred lines used for the production of hybrid varieties (L623-13CPI).
According to article L623-15CPI, the holder of a PVC is obliged to keep a vegetative sample of the protected plant variety during the whole duration of the PVC.
Moreover, he is obliged to specify the denomination accepted by INOV in any commercial transaction, even after the expiration of the certificate. This variety denomination should not be the subject of a trademark registration. However, such a registration may have been made as a precautionary measure, without preventing the granting of the PVC, provided that the owner has undertaken to renounce definitively the benefit of the use of this trademark in France and in the States that are parties to the UPOV Convention, prior to the granting of the said PVC (R623-6CPI).
Finally, annual fees must be paid to INOV (see point 4).
Since the implementation of the Community legislation allowing to obtain a European PVR in a centralized way, INOV has seen its applications decrease from year to year and stabilize at an average of 100-150 applications/year. Many applicants have indeed abandoned the French application for Community applications, especially since a national PVC is no longer enforceable if the plant variety is also covered by a Community PVR (principle of non-cumulation, Art. 92 of European Regulation 2100/94/EC).
Nevertheless, the interest of a French PVC is not negligible: it confers to its holder, at a lower cost, an exclusive right to produce, reproduce, package for the purpose of reproduction or multiplication, offer for sale, sell or market in any other form, export, import or hold, for any of these purposes, propagating materials of the protected variety on the French territory (including New Caledonia and Wallis and Futuna Islands).
Vous avez mis au point une nouvelle variété végétale ? Vous avez des questions à ce sujet ? Les équipes de Regimbeau se tiennent à votre disposition pour vous accompagner dans vos démarches pour la protéger, que ce soit par le biais d’un COV national ou dans toute l’Union Européenne par le biais d’un COV communautaire.
