Happy 30th birthday, EU Plant Variety Rights Regulation!

One change was the duration of protection. Article 19 of UPOV 1991 sets out the minimum duration of protection: for trees and vines, it is a minimum of 25 years from the date of grant, and for all other species, a minimum of 20 years. The Basic Regulation is more generous than UPOV. Initially, the EU offered 30 years of protection for trees and vines, and 25 years for all other species. The 30 years of protection has since been extended to other species, including potatoes in 1996, and more recently, Asparagus officinalis L., flower bulbs, woody small fruits and woody ornamentals in 2021. This was justified by the technical difficulties in breeding or the slow reproduction of these species that requires research expenditure for a longer period than other plants. Canada is exploring the option of following suit. 

Although the EU term of protection seems very generous compared to other jurisdictions, it has faced increasing concerns following the Nadorcott decision (Case C-176/18) in 2019. The implications of this decision have been discussed in the IPKat here and here. In short, the CJEU decision meant that the “provisional protection” offered between the date of application and the date of grant was weaker than many breeders would like. It allowed a grower who had planted a variety during the provisional period, without the authorisation of the PVR applicant, to freely exploit the harvested material (in this case, mandarin fruits from a ‘Nadorcott’ tree), even after the PVR was granted. This has prompted lots of criticism from breeders’ organisations.

Of course, we cannot ignore the impact of Brexit. For the UK, this created the administrative challenge of converting unitary EU PVRs into national protection. The UK’s withdrawal from the EU also had consequences for the operations of the CPVO. As part of the examination process, varieties are tested to ensure they meet the conditions of distinctness, uniformity, and stability. Whilst the UK continues to accept EU test reports, the reverse is not true. The UK examination offices had managed the testing of 678 botanical taxa with which no other EU examination offices were entrusted, so the CPVO had to make new arrangements for these botanical taxa. The UK’s work was eventually distributed amongst six other offices, although it took some time for them to adapt to these new technical expectations.

The challenges ahead

As the EU PVR system enters its fourth decade, many questions remain. Unsurprisingly, concerns about sustainability, biodiversity, and food security are high on the agenda. This was highlighted by the CPVO President, Francesco Mattina, in the Strategic Plan 2022-2026:

Business models based on globalised ones and new technologies on innovation in plant breeding are being affected by unprecedented challenges. On the one side, we have to respond to the effects of climate change; on the other side, the increasing consumers’ demand for healthier and more nutritious food characterised by various culinary qualities, needs to be tackled with sustainable practices under various and often extreme agroecological conditions  (for example, vegetables and fruits containing an increased number of antioxidant elements and higher vitamin levels, disease, drought and heat tolerant varieties that can be grown everywhere and possibly with a smaller environmental footprint). 

In this vein, a joint study by the EUIPO and CPVO published in April 2022 highlighted that plant breeding will have an important role to play in achieving the objectives of the European Green Deal, especially the Farm to Fork Strategy and the Biodiversity Strategy.

Finally, although the current legal debates about New Genetic Technologies (NGTs) are not expected to affect the PVR law directly, any decision from the European Parliament on this topic will have a major impact on the plant breeding sector. The proposal as of February 2024 includes a ban on patents for gene-edited plants (see discussion here), which would leave PVR as the main – and, in any event, perhaps the most appropriate – form of intellectual property protection for NGT plants.

The future of the European PVR system will be interesting, that’s for sure! Needless to say, this Kat looks forward to keeping readers up-to-date with all the legal developments in the realm of plant intellectual property rights.