New Plant Varieties
– Law 3 of January 7, 2000 Laying Down a Legal System for the Protection of Plant Varieties, as amended by Law 3 of March 12, 2001, and Law 3 of March 12, 2002. To the extent that they do not contravene the said Law, the provisions of Royal Decree 1674 of June 10, 1977, adopting the General System of Protection for Plant Varieties will remain in force pending adoption by the government of the Implementing Regulations to the aforementioned Law.
– Royal Legislative Decree 1/1996 of April 12, 1996 approving the consolidated text of the Law on Intellectual Property, regularizing, clarifying and harmonizing the legal provisions in force on the subject. This was last amended by Royal Decree-Law 2/2018 of April 13, 2018 amending the consolidated text of the Law on Intellectual Property.
Membership in International Conventions
– International Convention for the Protection of New Varieties of Plants (UPOV), since May 18, 1980, 1991 Act since July 18, 2007.
Applicant: the breeder or his legal successor.
Foreigners: natural or legal persons (a) who have a domicile or headquarters in Spain or (b) who are nationals of or have a domicile or headquarters in a member State of the European Union or a member State of the UPOV or a State that is a member of an intergovernmental organization that is a member of the UPOV or (c) other foreigners, provided that the countries of which they are nationals apply the principle of reciprocity to natural or legal persons who are nationals of Spain.
Requirements for the protection of plant varieties: the conditions to be fulfilled by a plant variety in order to be eligible for protection are: novelty (it must be new); distinctiveness (it must be clearly distinguishable from existing varieties); uniformity (it must be sufficiently uniform in its relevant characteristics); and stability (its relevant characteristics must remain unchanged).
Novelty: a variety shall not be considered new if, on the filing date of the application, it has been offered for sale or disposed of to third parties within the following time periods: one year if sale or disposal was effected in Spain; four years if sale or disposal was effected outside Spain (except trees and vines); six years if sale or disposal was effected outside Spain (in the case of trees and vines). Use of a variety by a third parties for field or laboratory trials or even for small-scale derivation trials before the filing of application for protection shall not compromise novelty.
Distinctiveness: a variety shall not be deemed distinct if, on the date of filing of the application, the variety is a matter of common knowledge, because: the variety has been published or described in a previous application that leads to the grant of a plant breeder's right, has been entered on an Official Register in any country, it can be considered known due to their exploitation, their presence in a collection of reference, or by any other means of evidence.
Filing Office and requirements:
An application for a "certificate of plant breeder's rights" may be filed by any person interested in obtaining such a certificate, directly with the Ministry of Agriculture, Fisheries, and Food if the person is not domiciled in Spain, or with the Autonomous Community where the applicant is domiciled and shall contain at least the following information:
1. Name, surname(s), and domicile of the applicant and his representative, where applicable;
2. Breeder’s name, surname(s), and domicile, where not the same as those of the applicant;
3. Genus and species to which the variety belongs;
4. Proposed denomination for the variety and/or, where appropriate, the breeder's reference;
5. Nationality of the applicant and, where appropriate, of the breeder;
6. A technical description of the variety and of the procedure for obtaining or discovering and developing the variety and of its genealogy;
7. Formal statement with regard to novelty;
8. Indication regarding the variety being or containing a genetically modified organism;
9. List of European Union or UPOV countries where the variety has been registered or where an application for a plant breeder's right has been made, with indication of the denomination or, where unavailable, the provisional designation;
10. Where priority is claimed from an earlier application, the date of the earlier filing in the other country, the denomination under which the variety has been registered or, where unavailable, the provisional designation, and the country in which application for a plant breeder’s right has been made;
11. The voucher attesting to payment of the corresponding fees.
The Ministry of Agriculture, Fisheries, and Food (MAPAMA) or the Autonomous Communities will conduct a formal examination of all documents submitted with the application. There will be a term of ten days in which to remedy any deficiencies that may be found. On successful conclusion of the formal examination, notice of the application will be published in the Official Plant Varieties Gazette. The variety must also undergo a technical examination to verify that the variety belongs to the botanical taxon described; to ensure that it fulfills the distinctiveness, uniformity, and stability requirements; and to draw up an official description of the variety. The results of technical examinations carried out in other countries with which Spain has agreements in respect plant breeder’s rights may be deemed admissible. The denomination proposed for the variety will also be subjected to examination in order to check that it is appropriate for a variety, that it is not the object of a previous right (particularly, not the object of a trademark right for identical or similar product) and it is not confusing with previously existing trademark rights. Upon successful conclusion of all these examinations, the Ministry will issue a certificate of plant breeder's rights, whose effects will be retroactive to the filing date of the application.
Notice of grant will be published in the Official Plant Varieties Gazette.
Duration: certificates of plant breeder’s rights are granted for twenty-five years, thirty years in the case of vines and trees, from the date of grant of the application. An applicant is entitled to monetary compensation from all parties who from the filing date to the date of grant have performed any act which, after grant, would require authorization from the breeder or his successor in title.
Scope of the plant breeder’s right: certificates of plant breeder’s rights afford the holder the exclusive right to the production or reproduction (multiplication), conditioning for the purpose of reproduction or multiplication, offering for sale, selling or other marketing, exporting, importing, or stocking for any of the aforementioned purposes reproductive or propagating material of the protected variety. The said rights also extend to harvested material, including entire plants and parts of plants, as well as to varieties essentially derived from the protected variety, varieties not clearly distinguishable from the protected variety, and varieties whose production requires repeated use of the protected variety. These exclusive rights are not applicable to the case of small farmers who use for propagating purposes on their own holdings the products of the harvest of propagating material of a protected variety other than a hybrid or synthetic variety. However, the foregoing refers only to a specified series of fodder, cereal, potato, oil seed, fiber, and horticultural species. The exclusive rights are also not applicable to the use of protected varieties as material for breeding new varieties. Certificates of plant breeder’s right also confer the right to take legal action in the courts against infringement of those rights. The generic designation of the protected variety denomination is registered upon grant of the plant breeder’s right, without regard to any trademark that may later be used for marketing the variety in question. The said generic designation may not be liable to mislead or cause confusion with respect to the designations used for other varieties of the same or related plant species or with respect to the characteristics, value, or identity of the variety or the identity of the breeder. The generic designation must be different from every denomination which designates any other variety of the same plant species or related species in every member State of the UPOV or of intergovernmental organizations that are members of the UPOV.
Annuities: an annual fee is required to maintain the plant breeder’s right in force. The amount of the fee varies according to the plant species group to which the variety belongs. The amount of the fee payable increases each year for the first five years but then remains unchanged from the fifth year onward.
Modification of Protection after Granting
Appeal: the grant of a certificate of plant breeder’s rights may be appealed to the Administration, but questions of ownership are within the competence of the ordinary courts.
Licenses: breeders may grant licenses for exploitation rights to the varieties, which must be recorded on the Register of Protected Plant Varieties. The Law also makes provision for compulsory licensing of exploitation rights in the event of unjustified failure to exploit the variety or of refusal to issue a license voluntarily in consideration of reasonable conditions. Provision is also made for non-exclusive compulsory licensing by reason of dependency in cases in which a breeder of a plant variety must use a patented invention to obtain or exploit his plant breeder’s right, and vice versa. Such licenses are also provided for in the case of biotechnology patents.
Nullification: certificates of plant breeder’s rights are null and void when the holder was not entitled to obtain the certificate or when the plant variety in question was not new, distinct, uniform, and stable.
Infringement: pursuant to the Revised Criminal Code (Organic Act No. 1/2015), it is a criminal offense of infringement to produce or reproduce (multiply), condition, offer for sale, sell or otherwise market, export, import or possess, to any of those ends, plant reproductive or propagating material belonging to a protected variety, or to use plant reproductive or propagating material that does not in fact belong to the variety in question, without the consent of the holder of the plant breeder’s right, while knowing of the registration of the variety, for agricultural or commercial purposes.
Penalties: imprisonment of from one to three years. This penalty may be increased where aggravating circumstances occur (see “patents“). For issues relating to the criminal liability of legal persons, civil liability, and interlocutory relief, as for “patents”.