Plant breeders' rights

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Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.

With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform and stable. A variety is new if it has not been commercialized for more than one year in the country of protection. A variety is distinct if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc. A variety is uniform if the plant characteristics are consistent from plant to plant within the variety. A variety is stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties. The breeder must also give the variety an acceptable "denomination", which becomes its generic name and must be used by anyone who markets the variety.

Typically, plant variety rights are granted by national offices, after examination. Seed is submitted to the plant variety office, who grow it for one or more seasons, to check that it is distinct, stable, and uniform. If these tests are passed, exclusive rights are granted for a period of 20 years (or 25 years, for trees and vines). Annual renewal fees are required to maintain the rights.

Breeders can bring suit to enforce their rights and can recover damages for infringement. Plant breeders' rights contain exemptions from infringement that are not recognized under patent law. Commonly, there is an exemption for farm-saved seed. Farmers may store the production in their own bins for their own use as seed, but this does not necessarily extend to brown-bag sales of seed. Further sales for propagation purposes are not allowed without the written approval of the breeder. There is also a breeders' exemption (research exemption in the 1991 Act) that allows breeders to use protected varieties as sources of initial variation to create new varieties of plants (1978 Act),[1] or for other experimental purposes (1991 Act).[2] There is also a provision for compulsory licensing to assure public access to protected varieties if the national interest requires it and the breeder is unable to meet the demand.

There is tension over the relationship between patent rights and plant breeder's rights. There has been litigation in Australia, the United States, and Canada over the overlap between such rights.[3] Each of these cases was decided on the principle that patents and plant breeders' rights were overlapping and not mutually exclusive. Thus, the exemptions from infringement of plant breeders' rights, such as the saved seed exemption, do not create corresponding exemptions from infringement of the patents covering the same plants. Likewise, acts that infringe the plant breeders' rights, such as exportation of the variety, would not necessarily infringe a patent on the variety, which only allows the patent owner to prohibit making, using or selling the patented invention.

International rights[edit]

The United States of America passed the Plant Patent Act in 1930 (US)[4] at the urging of such notable figures as Thomas Edison and Luther Burbank's widow. Plant patents provided a special form of patent protection, which relaxed certain requirements of the utility patent law as applied to asexually reproduced varieties of plants. In 1957, the French Government held a conference in Paris concerned with the protection of new varieties. This led to the creation of the Union Internationale pour la Protection des Obtentions Végétales (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The Convention was revised in Geneva in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation. Under the 1978 Act, the minimum scope of the plant breeder's right requires that the holder's prior authorisation is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorisation is required. The breeder's authorisation is also required in relation to any of the specified acts done with harvested material of the variety, unless the breeder has had reasonable opportunity to exercise their right in relation to the propagating material, or if not doing so could constitute an "Omega Threat" situation. Under that provision, for example, a flower breeder who protects their variety in the Netherlands could block importation of cut flowers of that variety into the Netherlands from Egypt, which does not grant plant breeders' rights, because the breeder had no opportunity to exercise any rights in Egypt. Member countries also have the option to require the breeder's authorization with respect to the specified acts as applied to products directly obtained from the harvested material (such as flour or oil from grain, or juice from fruit), unless the breeder has had reasonable opportunity to exercise their right in relation to the harvested material.

The UPOV Convention also establishes a multilateral system of national treatment, under which citizens of any member state are treated as citizens of all member states for the purpose of obtaining plant breeders rights. It also sets up a multilateral priority filing system, under which an application for protection filed in one member state establishes a filing date for applications filed in all other member states within one year of that original filing date. This allows a breeder to file in any one member country within the one-year period required to preserve the novelty of their variety, and the novelty of the variety will still be recognized when the filing is done in other member countries within one year of the original filing date. However if the applicant does not wish to make use of priority filing, he or she has four years in which to apply in all other member states, excepting the USA, for all species except tree and vine species in which case he or she has six years to make application. See article 10 1 (b) of Council Regulation EC No 2100/94 of 27 July 2004 on the website www.cpvo.eu. The trigger to start the four- or six-year period is not actually the date on which the first filing is made but the date on which the variety was first commercialised.

The UPOV Convention is not self-executing. Each member state must adopt legislation consistent with the requirements of the convention and submit that legislation to the UPOV Secretariat for review and approval by the UPOV Council, which consists of all the UPOV member states acting in committee. In compliance with these treaty obligations, the United Kingdom enacted the Plant Variety and Seeds Act 1964. Similar legislation was passed in the Netherlands, Denmark, Germany, and New Zealand. In 1970 the United States followed the lead of seventeen Western European nations and passed the Plant Variety Protection Act 1970 (US). This legislation provided protection to developers of novel, sexually reproduced plants. However, the United States originally acceded to the UPOV Convention on the basis of the Plant Patent Act and did not bring the PVP Act into compliance with UPOV requirements until 1984 when the Commissioner of Plant Variety Protection promulgated rules to do so. Since the 1980s, the US Patent Office has granted patents on plants, including plant varieties this provides a second way of protecting plant varieties in the USA. Australia passed the Plant Variety Protection Act 1987 (Cth) and the Plant Breeders Rights Act 1994 (Cth). Australian patent law also permits the patenting of plant varieties. In total, 65 countries have signed the UPOV Convention and adopted plant breeders' rights legislation consistent with the requirements of the convention.

The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires member states to provide protection for plant varieties either by patents or by an effective sui generis (stand alone) system, or a combination of the two. Most countries meet this requirement through UPOV Convention-compliant legislation. India has adopted a plant breeders' rights law that has been rejected by the UPOV Council as not meeting the requirements of the treaty.

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