Plant Variety Rights
There is separate plant variety legislation, which grants patent-like protection. It is based on international Conventions which have recognised plant breeding rights.
Plant variety rights cover the genetic engineering of plant material. The legislation protects strains of plants. Significant time and investment may be involved in the production of plant varieties.
The plant breeder is given the sole right to produce, market, export and import reproductive material of the type for which the rights are granted. He may license third parties.
The right applies in respect of any plant type or species which has been independently bred or developed. It applies to plant reproduction material and not to the food and other produce thereof.
The variety must be uniform, new, distinct and stable. The criteria differ from those for patents. Novelty requires that at the date of filing, the material of that variety had not been sold or made available for use by or under the authority of the plant breeder.
The variety must be distinctive. This implies that it does not already exist. It must be capable of being distinguished, described and recognised.
Grant, Rights & Revocation
The Controller of Plant Breeders’ Rights processes applications and investigates and tests the merits of the claim. The Controller may register species, and varieties within species, provided the registration criteria are met.
Exclusivity may be given for a name. Dealings in the variety must be registered.
There is a compulsory licensing regime to prevent unreasonable restrictions on the distribution of the material. The protection periods are between 25 and 30 years, with up to 35 years in the case of certain species.
Plant rights may be revoked in the same way as other intellectual property rights. The revocation may be based on prior commercialisation, lack of distinctiveness, failure to supply material and information, providing incorrect information or non-payment of fees.
An EU Regulation creates Community plant variety rights. The system is similar to domestic legislation and allows for protection throughout the EU.
The EU Regulation provides for protection for biological types and species that are distinct, uniform, stable, new and designated by a denomination in accordance with the rules. The right is for 25 years and, in certain circumstances, up to 30 years.
Plant varieties are not patentable under patent legislation. They are protected under the above legislation. The courts seek to keep the two schemes of protection distinct. Patents and plant variety rights may operate in tandem.
Plants and animals themselves are not considered inventions. The above-mentioned prohibitions apply. It excludes microbiological processes even though microorganisms are alive.