Plant breeding or the search, selection and crossing of plants in order to obtain more resistant and productive varieties, is an essential activity in the current context of an ever-growing world population and the challenges presented by climate change.
In order precisely to encourage this activity, both Spanish and European legislators have provided for a series of mechanisms aimed at the protection of new plant varieties, with a view to safeguarding the investment and effort involved in plant breeding.
These instruments are embodied in the plant variety registers foreseen by Spanish Law 3/2000 of January 7 on the Legal regime for the protection of plant varieties (at the national level) and by Council Regulation (EC) No. 2100/94 of July 27, 1994, on Community plant variety rights (at the European level).
It should be pointed out that, although both protection instruments coexist at European level, the applicant must choose at the time of application between European and national protection, since the two cannot coexist.
As to the object of protection, varieties of all botanical genera and species (including hybrids between genera and species) may be protected, irrespective of the breeding method and provided that the requirements for protection are met. These requirements are:
- Distinctive character, i.e. the variety can be clearly distinguished, by the expression of characteristics resulting from a particular genotype or a combination of genotypes, from any other variety the existence of which is well known;
- Uniformity, consisting of the variety showing sufficient uniformity in the expression of the characteristics;
- Stability, which occurs when the expression of the characteristics of the variety is not altered in any way after repeated propagation;
- Novelty, meaning that the variety has not been marketed with the consent of the breeder for the purposes of exploitation earlier than one year prior to the application in the territory of Spain/the European Union, and outside that territory earlier than four years prior to the application or six years in the case of trees and vines (and potatoes in the European protection system);
- An appropriate denomination that allows it to be identified as such
The first three requirements are of a technical nature and are linked to the phenotypic characteristics of the variety. These requirements are assessed through the growing of the variety during the so-called DUS test carried out at the corresponding examination offices. For their part, both the novelty and the proposed denomination are assessed by the examination offices during the substantive examination of the application.
The protection of plant varieties confers an exclusive right to their holder, which basically means the possibility of preventing the following non-authorised acts:
- Production or reproduction (multiplication);
- Conditioning with a view to propagation;
- Offering for sale; sale or other type of commercialization;
- Export and import;
- Storage with a view to any of the above objectives.
As for the duration of the exclusive right, the general term is 25 years from the grant of protection, which is extended to 30 years in the case of trees and vines (and potatoes, in the European system of protection).
How can inmentor help breeders of new plant varieties?
inmentor offers legal advice in order to obtain and defend the breeder’s right
The application for registration of a new plant variety is a complex and lengthy procedure that requires specific knowledge of the different regulations on plant varieties protection.