Property Rights - Protection of Plant Varieties
Duration of protection of plant varieties
Effect of protection of plant varieties, infringement
International protection of plant varieties
The following requirements are imposed for protection of a plant variety:
- Registrable plant variety designation
- Register examination (distinguishability, homogeneity, resistance)
Novelty exists if no reproductive material or harvested crops of this variety have been sold by the grower, or with the agreement of the grower, or have been delivered to others in another manner for usage of the variety within one year at home, and within four years abroad (for trees and vines six years) before the date of making the application. Certain formal regulations, which must be adhered to, apply for the designation of varieties. A plant variety is distinguishable if its features can be clearly distinguished from those of every other known variety. Homogeneity means that the features are sufficiently uniform in all plants of the variety. The variety is resistant if its features are retained during reproduction.
After application, the application is published so that third parties are given the opportunity to file opposition. If the application contains no grounds for hindrance, the Plant Varieties Protection Office will commence the technical examination for distinguishability, homogeneity and resistance. If the technical examination is successfully completed, the protection of the plant variety will be granted. It should be noted that, if protection of a plant variety has been granted, the Office is entitled to conduct a subsequent technical examination to ensure that the protected variety persists unchanged.
Applicants having registered headquarters or domicile outside the EEA must be represented by an admitted representative.
The protection of plant varieties last for 25 years from granting, 30 years for certain varieties (e.g. trees or vines).
At the request of third parties, the protection of plant varieties will be declared null and void if the variety was not, or was no longer distinguishable or new, or evidence is furnished that the proprietor of the protection of plant varieties was not an authorised party.
The proprietor of the protection of plant varieties can prohibit third parties from carrying out the following actions:
- producing or reproducing
- preparation for the purposes of reproduction
- offering for sale
- selling or otherwise putting into circulation
- importing and
- storage for said purposes
The infringed party then has a claim for injunction, removal, publication of judgement, monetary claims (appropriate remuneration or compensation), submission of accounts and information about the origin and marketing route of the infringing objects. An interlocutory injunction can also be taken out against the infringer.
In addition to the national protection of plant varieties, there is the Community Protection of Plant Varieties (CPVO) with effect for the entire EU and an International Agreement, the International Union for the Protection of New Varieties of Plants (UPOV), an inter-state organisation with its headquarters in Geneva, with the aim of protecting new varieties of plants (agricultural cultivated species, vegetables, fruit, ornamental plants and woody plants) as intellectual property.