Canaan Bridges Consulting Inc. | 3 min read
Whether related to food processing, alternatives to traditional foods, or new value-added channels, innovations in agricultural industries are almost a constant. The development of new plant varieties is also indicative of this innovative trend in plant sciences. One way of incentivising breeders for research and development activities done in producing new plant varieties, while at the same time safeguarding the output of their labour, is through the plant’s recognition as a new plant variety. In national legislation, this is commonly known as Plant Breeders Rights, as, by such designation, the right holder is given limited exclusive rights and control over the name and specie which is the subject of protection. This allows owners of plant varieties to use monetisation strategies such as licensing or full assignment of rights, to tap into revenue streams from their agricultural endeavours without competition (on the same specie grounds) from others. There are also environmental welfare and food security goals associated with new plant varieties. In particular, the specie’s relevant characteristics may be resistant to viruses and pests, are climate sensitive, and/or promote the sustainable cultivation of agri-foods as a source of rural livelihood.
Plant Breeder’s Right Designation
Plant breeder’s rights provide intellectual property protection to new plant varieties that are qualified for protection and, which have obtained registration. The right holder has exclusive rights for 25 years (in the European Union, the duration of protection will increase to 30 years for certain plant specie) over the propagating material in the protected variety. With this proprietary interest, the breeder has control over its production or reproduction, its export or import, selling, distribution, advertising, its stocking, and its conditioning for the purpose of propagation. There are exceptions to these rights. For example, a third party may use a registered plant variety for private and non-commercial purposes or, for experimentation purposes without infringing on the breeder’s right.
Criteria For Protection
The variety must be novel at the date of its application. This requirement of novelty means that prior to one year before the filing date, the plant variety should not have been sold, or given to others by the breeder for the purposes of exploitation. Under the International Convention for the Protection Plant of Varieties (UPOV), this novelty requirement applies to applications filed by a person within their country. If the application is filed for other countries party to the UPOV (for countries outside the home country), the plant variety should not have been sold or disclosed to others for exploitation purposes for more than four years before the application date.
Since the plant variety must be distinct, it will be prudent to do a search on prior varieties commonly known within the agricultural field. Registration will not be granted to plant varieties that are not distinguishable from others which are in already in existence (whether already filed or registered).
It is common for new plant varieties to have undergone several years of research and development prior to reaching the ready to market stage. These dynamics can also be helpful in the development of propagating material that is uniform in its characteristics. This is another criterion for plant breeder protection – uniformity of the plant variety. Finally, the relevant characteristics of the plant variety must remain unchanged in all repeated propagation.
In many countries, applications for plant breeder’s rights have steadily increased over the past few years. There are currently over 52000 registered plant varieties from the European Union, 2393 in Canada, 2327 in Mexico, 2756 in Australia, and 8322 in the United States. Seventy-eight countries have signed on to the UPOV, with Saint Vincent and the Grenadines becoming the latest member in March 2021(source:CPVO). It should be noted that several countries have domestic laws recognizing protection for new plant varieties, although they have not become members to the UPOV.
Plant breeder’s rights registration will not be appropriate, or even possible for all types of plant varieties. However, if strong licensing or selling channels are pursued by breeders, the designation may mobilize revenue streams, and solidify capital in their IP portfolios.