Plant Breeders' Rights

A Plant Breeders’ Right (PBR) is an intellectual property right on a new plant variety. A PBR entitles you to exclude others from certain acts with the propagating material. These acts include production, exporting, selling and marketing. This protection also applies to the harvested material of your variety, but only under certain conditions.

A PBR application can be filed nationally or regionally (such as the EU). In case of the EU, the application must be filed at the Community Plant Variety Office (CPVO). Another example of a regional application, is for OAPI (Organisation Africaine de la Propriété Intellectuelle). This includes all French speaking African countries. It’s not possible to file an international application to retrieve PBR protection.

Most countries that provide PBR protection are a member of the UPOV Convention. This Convention currently has 78 members and sets out minimum requirements to be met by its members. The UPOV Convention protects varieties from all botanical species and taxa.

After filing a PBR application, the provisional protection of your variety starts and continues until the time of grant. Also the substantive examination starts. This means that your variety will be tested on Distinctness, Uniformity and Stability by sending plant material. Depending on the species, this testing (i.e. DUS examination) can take several years. In addition to this, your variety must have a variety denomination and it has to be novel. A novel variety means that it has not been sold for commercial purposes within a certain timeframe before filing your application.

If your variety has been found DUS, novel and has an approved variety denomination, the authorities will proceed to grant a PBR. From the grant date, you will have full protection for your variety.

After the grant of your PBR, it’s required to pay annual fees to maintain your right. These fees must be paid until the end of the protection term. The duration of your PBR depends per species and per country. The UPOV 1991 Convention requires at least 25 years for trees and vines and 20 years for all other species. In the EU, the duration is 30 years for several species (including woody crops) and 25 years for all other species.

Besides PBR, it’s in many countries obligatory to register edible varieties on their National List (NLI) before plant propagating material of the variety may be marketed in that country. Such a registration does not provide any IP protection, but only allows someone to market a particular variety. In most countries, this is a separate procedure from filing a PBR application. Also for NLI local testing of plant material may be required.

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