Member Article

Introduction

A plant variety right (PVR) is an IP right which rewards breeders of new plant varieties for their efforts in creating those varieties. The current PVR law dates back to 1975 and is based on the 1961 International Convention for the Protection of New Varieties of Plants. The convention has since been amended several times, most recently and radically in 1991. This amended version forms the basis for the current European PVR regime under EU Regulation 2100/94, which introduced a unitary plant variety right across the European Union (similar to the system that now exists for trademarks and designs).

Although one of the original signatory states to the 1991 convention, Belgium did not ratify it, and so continued to have a PVR law under the old 1961 convention. For several reasons - including the fact that in 2010 Belgium held the EU presidency (and thereby

presided over the European coordination meetings on this issue), and that in 2009 the number of national Belgian PVR applications dropped to zero - it was felt that this situation had become untenable, all the more as Belgium is active in the field of plant breeding. According to the Community Plant Variety Office's most recent statistics,(1) it appears that Belgium is seventh in the European and ninth in the worldwide rankings for Community plant variety protection applications. It was therefore felt that the time was right to bring national law into line with the 1991 convention and thus, on January

10 2011, the new PVR law was approved in Parliament.

Although the new law has not yet entered into force (this can happen only when the implementing regulations have been issued, expected later this year), it will inevitably be welcomed by breeders, since it substantially reinforces their rights. This is important because despite the overwhelming success of the unitary regime under the PVR regulation, national plant variety rights should remain available to, and attractive for, smaller breeders which may not wish or be able to use the Community Plant Variety Office system.

New features

According to the explanatory memorandum, the new law is largely inspired by the PVR regulation and also follows its structure. The principal new features are summarized below.

Varieties

The new law will apply to all varieties of botanical genera and species in the plant kingdom. This means that, aside from vascular plants, organisms such as algae and mushrooms will also be eligible for PVR protection. In order to qualify for protection, the plant grouping in question must be a 'variety' – a term which is better defined under the new law and which is now in line with the definitions provided in the PVR regulation and the 1991 convention.

Discovery versus development

Only the breeder of the variety will be entitled to protection under the new law. Unlike the situation under the existing PVR law, where the mere discovery of a variety can lead to a certificate, the new law requires that in the event of a discovery, whoever applies for protection must also have developed the variety. Although this new definition is open to interpretation, it implies that protection will be afforded only to the person who has done the actual breeding work, or its successor in title.

Protection term

The new law will extend the PVR protection term to 25 years, or 30 years for new varieties of vines, trees and potatoes. Contrary to patent law, for example, this term of protection will start from the date on which the PVR certificate is granted, not from the application date.

Grant requirements

With regard to grant requirements, there are no substantial changes compared to the current situation. To be eligible for PVR protection, the variety must be proven to meet the classic criteria of distinctness, uniformity and stability. In addition, it must be new and be designated by a proper denomination. The novelty requirement under PVR law is different from that under patent law, in that under certain conditions, material of the variety may have been commercialized before the filing or priority date of the application for PVR protection.

Scope of protection

The new law will broaden the scope of PVR protection on two levels. First, whereas the current law bestows the breeder with a right to act against unlawful commercial use of propagating material of the variety in question only, the new law will extend this right to harvested material (not only propagating material) and to products directly obtained from such harvested material, provided that the breeder has not been able to exercise its rights further upstream.

Second, whereas the scope of protection is currently limited to unauthorized activities with respect to material of the protected variety (or varieties that are not distinct from this variety), the new law will broaden this scope to varieties whose production requires the repeated use of the protected variety (ie, hybrids), and in particular, to varieties that are essentially derived from the protected variety, provided that this latter variety is not essentially derived itself. Thus, the insertion by a third party of a foreign gene into the plants of a protected variety with the aim of fabricating cosmetically a new variety which differs from the protected variety only by the phenotypical characteristic expressing that gene (but which is otherwise identical to the protected variety) will no longer result in an independent PVR title allowing that third party to commercialize its mutant without paying royalties to the breeder of the original variety.

Exclusive rights

As to exclusive rights, the new law clarifies that the breeder's consent will be needed for all acts of multiplication, conditioning for the purpose of propagation, commercialization, including importation and exportation and stocking for any of these purposes, carried out with regard to the protected material.

Exemptions

In addition to existing exemptions for acts carried out with regard to protected material

for experimental or private, non-commercial use and for breeding new varieties (the so-called 'breeder's exemption'), the new law introduces an agricultural exemption which will allow farmers to reuse – for propagating purposes in the field and on their own holding – propagating material of the protected variety produced from their own harvest on their holding. The details of this exemption will be revealed in the implementing regulations, but it is expected that the exemption will mirror the limitations provided under the PVR regulation. Finally, the exercise of a PVR remains subject to the rules of exhaustion; an important reference for a preliminary ruling to the European Court of

Justice was recently made by the Belgian Supreme Court (for further details please see

"Supreme Court refers issue of plant variety rights exhaustion") in this respect.

Comment

It is clear that the new law is good news for breeders. Their rights have been enhanced; several concepts, including the term 'variety', have been clarified; and infringement exemptions have been better defined, resulting in more legal certainty for all players in the chain. All that remains is for the law to come into force. On adoption, its provisions will apply immediately to all PVR certificates granted before its entry into force.

For further information on this topic please contact Philippe de Jong or

Kathleen Mercelis at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email ([email protected] or [email protected])

Endnotes

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