New Plant Varieties

– Plant Varieties and Seeds Act 1964, as amended.
– Plant Varieties Act 1997.

Membership in International Conventions

– International Convention for the Protection of New Varieties of Plants (UPOV, 1961), as revised at Geneva (1972, 1978 and 1991), since August 10, 1968.

Filing, Protection

Conditions of protection: all varieties of genera or species of plant or fungi can be protected, provided that the variety is new, and has proven to be distinct, uniform and stable (DUS). The U.K. system for granting plant variety rights is administered by The Plant Variety Rights Office (PVRO). Applicants must indicate to the PVRO if an application relates to a genetically modified (GM) plant variety.

Priority: if a Plant Breeders’ Rights application has been made overseas, it may be possible to claim priority based on that first application, providing that the subsequent U.K. application is received within one year of that first application.

Novelty: a plant is new if propagating or harvested material has not been sold or disposed of by or with the consent of the applicant more than one year prior to the application in the U.K. or more than four years (six years for trees and vines) anywhere else in the world prior to application in the U.K.

Distinctiveness: a variety is distinct if it is clearly distinguishable by one or more characteristics capable of precise description from any other varieties of common knowledge at the time of the application. Varieties of common knowledge include varieties in cultivation or described in any publication. 

Uniformity: a variety is deemed to be uniform if, subject to the variation which may be expected during propagation, the characteristics for distinctiveness remain substantially unchanged. Further, the PVRO has the authority to terminate Plant Breeders' Rights by reason of the variety no longer being uniform or stable. 

Stability: a variety is deemed to be stable if those characteristics, which distinguish that variety from others, remain unchanged after repeated propagation or cycles thereof.

Testing: once an application has been made and found to be in order, plant material or seeds are required to be provided in order that testing can be carried out. In the U.K. testing will take one year for ornamentals, a minimum of three years for trees, four years for herbage and two years for other species. Extra testing of parental species may be needed to register hybrid varieties.Testing may take longer if there is difficulty in establishing distinctiveness over similar varieties and plant breeders’ rights will only be granted when this is completed and the grant fee has been paid. No testing of (GM) plant varieties is allowed until appropriate release consent has been issued.

Naming of the variety: the variety must have an approved name. If the proposed name is not supplied on application to register the rights, then the PVRO will write to request that one be submitted for consideration within a set time limit. If such is not forthcoming, then the PVRO is not obliged to take any further action to progress the application until a name has been proposed. Failure to submit a name for consideration by the PVRO may result in the application being refused, as grant of Plant Breeders’ Rights cannot be made if the variety does not have an approved name. Such a name must also conform with the current PVRO guidelines and from the date on which rights are granted, reproductive material of the variety must only be sold or offered for sale using the name registered with the PVRO.

Ownership: in the first instance, plant breeders’ rights must be applied for by the person who bred or discovered and developed the variety (or his successor in title). An employer may have an automatic right to ownership of the rights from an employee who breeds or discovers and develops a variety in the course of his employment (unless there is an agreement to the contrary). A breeder may also assign or transfer the rights in the variety to another person. Applicants based outside the U.K. must nominate an address for service or agent within the U.K., Gibraltar or the Channel Islands.

Rights: plant breeders’ rights entitle the owner to prevent other people from doing certain acts including producing, conditioning for the purpose of propagation, offering for sale or selling, exporting and importing, and stocking the protected species. Those rights may also extend to any variety, which is dependent on the protected variety such as a hybrid or an essentially derived variety, providing it retains the expression of the distinctive characteristic of the protected varietal, yet is clearly distinguishable from the initial variety. 

Duration: U.K. plant breeders’ rights are granted for a term of twenty-five years from the date of grant of such rights. If however, the rights are for trees, vines and potatoes then the term is thirty years from grant.

Annuities: payment of annual renewal fees is required to maintain the rights in force as is continued fulfilment of the requirements of the regulations such as maintaining the stability of the variety.

Infringement: the Plant Varieties Act 1997 gives breeders the same remedies for infringement as exist for other proprietary rights. Infringement of the rights occurs when a third party, without permission from the owner carries out certain acts including producing, conditioning, offering for sale or selling, exporting and importing, and stocking the protected species. Breeders of ornamental varieties, such as chrysanthemums, also have the right to request details of the source of suspect material to help them establish whether harvested material (e.g. pot plants) has been obtained through authorized propagation. If the information is refused, without valid reason, then in subsequent infringement proceedings, the Courts will presume that the plants were obtained by illicit propagation unless the defendant can prove otherwise. The PVRO does not play any part in enforcing Plant Breeders’ Rights.

Compulsory licenses: may be available if the owner of a plant breeders’ right refuses to authorize others to use his protected variety or will only do so on unreasonable terms.