Happy 30th anniversary of the EU Plant Variety Protection Regulation!

The European regulation on Community plant variety protection is celebrating its 30th anniversary today! This is an important step for the Council Regulation (EC) No 2100/94 of 27 July 1994, also known as the “Basic Regulation”, which established the unitary intellectual property right on plant varieties.

An important anniversary

Happy 30th anniversary of the EU Plant Variety Protection Regulation!

Cat celebrates important birthday

Thirty years is a considerable period of time for plant varieties: it is the maximum duration of plant variety protection (PVP) for many groups of plants in the EU, including potatoes, grapes and trees.

The Basic Regulation was adopted shortly after the conclusion of the most recent version of the International Convention for the Protection of New Varieties of Plants (UPOV), signed on 19 March 1991. The 1991 Act of the UPOV Convention allowed intergovernmental organisations to accede to it. The EU finally became a member of UPOV in 2005, although the Basic Regulation had already given effect to the principles of the 1991 Act.

The EU plant variety protection system is managed by the Community Plant Variety Office (OCVV), which was established in April 1995 (so there is still some time left before the CPVO reaches its 30th anniversary) and is located in Angers, France.

An eventful twenty years

The last decade has been an eventful one for the EU PVR system. last major revision The PVR law was finalized in 2011, but many developments have still taken place.

One of the changes concerns the duration of protection. Article 19 of the UPOV 1991 Convention sets the minimum duration of protection: for trees and vines, it is at least 25 years from the date of grant, and for all other species, at least 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-year protection has since been extended to other species, including potatoes in 1996and more recently, Common asparagus L., flower bulbs, small woody fruits and woody ornamental plants in 2021This has been justified by the technical difficulties of selection or the slow reproduction of these species which requires research expenditure over a longer period than for other plants. explore the option to follow the movement.

Although the EU’s term of protection appears very generous compared to other jurisdictions, it faces growing concerns following the Nadorcott decision (Case C-176/18) in 2019. The implications of this decision were discussed in the IPKat here And here. In short, the CJEU decision means that the “provisional protection” offered between the date of application and the date of grant is weaker than many breeders would like. It allows a producer who has planted a variety during the provisional period, without the authorisation of the applicant for plant variety rights, to freely exploit the harvested material (in this case, mandarins from a “Nadorcott” tree), even after the plant variety rights have been granted. This has prompted a lot of critical breeders’ organizations.

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

The challenges ahead

As the EU plant variety protection system enters its fourth decade, many questions remain. Unsurprisingly, concerns about sustainability, biodiversity and food safety are high on the agenda, CPVO President Francesco Mattina stressed in the press release. Strategic plan 2022-2026:

Business models based on globalized models and new technologies for plant breeding innovation are facing unprecedented challenges. On the one hand, we need to address the effects of climate change; on the other, the growing consumer demand for healthier and more nutritious foods, characterized by diverse culinary qualities, must be addressed with sustainable practices in diverse and often extreme agroecological conditions (e.g. vegetables and fruits with increased antioxidant content and higher levels of vitamins, disease-, drought- and heat-resistant varieties that can be grown anywhere and possibly with a smaller environmental footprint).

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

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

The future of the European plant protection system will certainly be interesting! Needless to say, Kat is eager to keep her readers up to date with all the legal developments in the field of intellectual property rights on plants.