Plant Breeders' Right after Brexit

A Saline Resistant Wheat Variety

Author US Department of Agriculture
Licence Copyright waived by US government
Source Wikipedia "Plant Breeding"

Jane Lambert

A plant breeders' right is the exclusive right to prevent reproduction, marketing, selling and certain other acts in relation to new plant varieties.  Plant breeders can acquire those rights for the UK alone by registering  the plant variety with the Plant Variety Rights Office in Cambridge. Alternatively, they can obtain such protection in all 28 EU member states including the UK by registering it with the Community Plant Variety Office ("CPVO") in Angers.

The legislation that established the CPVO and provides for plant breeders' rights throughout the EU is Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ("the Plant Variety Rights Regulation").  That regulation will cease to apply to the UK once it leaves the EU by reason of art 50 (3) of the Treaty of European Union.  If HM government concludes a withdrawal agreement substantially on the terms of the draft that has circulated since the end of February the regulation will continue to apply to the UK until 31 Dec 2020.   If this country leaves without such an agreement the regulation will cease to apply after 29 March 2019.

On 12 Oct 2018 the Department for Agriculture, Food and Rural Affairs published a guidance note entitled Plant variety rights and marketing of seed and propagating material if there’s no Brexit deal in case the UK leaves the EU without a withdrawal agreement.  According to the note, existing Community plant variety rights belonging to British rights holders will continue to be recognized and enforced in the remaining EU member states. They will also be recognized and protected in the UK presumably because the regulation will be incorporated into our national law by s.3 of the European Union (Withdrawal) Act 2018.

The guidance states that where an application has been made to the CPVO but not granted before the UK leaves the EU, the applicant must make a fresh application to the Plant Variety Rights Office. However, the applicant will keep the same priority date and rely on the same test for distinctiveness, uniformity and stability.

The CPVO issued a Notice to Stakeholders regarding the withdrawal of the UK and EU rules in the field of Plant Variety Rights on 30 Jan 2018.

Anyone wishing to discuss this article or plant breeders' rights generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.