What are plant variety rights?

Plant variety rights are intellectual property rights that provide protection for new plant varieties. For a specified period, the holder of the plant variety rights has the exclusive right to produce, propagate, sell, trade and market the variety. 

In the Netherlands, an application for plant variety rights can be filed with the Board for Plant Varieties. Once granted, the right is entered in the register. It is also possible to apply for Community Plant Variety Rights, which provide protection throughout all Member States of the European Union. 

Plant variety rights are relevant, among other things, to:

  • The development of new flower, vegetable or fruit varieties
  • The breeding and development of new plant varieties
  • The production and trade of propagating and plant material
  • National and international trade in plant varieties
  • Preventing the unauthorised use or propagation of protected varieties

Common issues relating to plant variety rights

In practice, plant variety rights regularly give rise to questions and disputes. Below are several common situations faced by breeders and holders of plant variety rights.

Unauthorised use of your protected plant variety

If a third party propagates, sells or trades your protected plant variety without permission, this may constitute an infringement of your plant variety rights. This may result in financial loss, for example because you lose licensing income or revenue from the commercial exploitation of the variety.

Refusal of or disputes concerning registration

A plant variety is eligible for plant variety rights only if it satisfies strict statutory requirements, including novelty, distinctness, uniformity and stability. If the Board for Plant Varieties or, for example, the Community Plant Variety Office rejects the application, this may affect the protection and commercial exploitation of the variety.

Uncertainty concerning the plant variety rights register

It is important that the information recorded in the register is accurate. Errors, incomplete registrations or ambiguities may lead to disputes concerning who should be regarded as the rights holder or precisely which rights apply. This may arise in connection with collaborations, licences, transfers of rights and corporate acquisitions.

Disputes concerning licences and royalties

Where a third party is authorised to produce, propagate or trade a protected plant variety, the relevant arrangements are often set out in a licence agreement. Disputes may arise concerning the amount of royalty payments, the interpretation of contractual provisions, the scope of the rights granted or compliance with the agreed terms.

What can you do yourself?

Many disputes concerning plant variety rights can be avoided by carefully documenting rights and agreements. Addressing these matters at an early stage reduces the risk of disputes and puts you in a stronger position if a disagreement nevertheless arises. Measures you can take include: 

  • Record agreements concerning breeding, collaboration, licences and transfers of rights in writing
  • Make clear arrangements concerning payments, rights of use and royalties
  • Keep records of who uses your variety and on what terms
  • Collect and retain evidence that may be relevant in the event of a potential infringement or dispute 

Careful registration and clear contractual arrangements often form the basis for effective protection of plant variety rights and can prevent many legal disputes.

Why instruct a specialist plant variety rights lawyer?

Plant variety rights are a specialised area of intellectual property law. Legal issues concerning the protection, exploitation and enforcement of plant varieties intersect with the particular practices of the plant breeding and horticultural sectors. A proper understanding of your legal position is therefore essential. 

A plant variety rights lawyer can advise you on protecting your rights, identify potential risks and provide assistance in disputes. Obtaining legal advice at an early stage can often prevent problems or help resolve them before they escalate. 

You may wish to instruct a lawyer in situations including where:

  • There may be an infringement of your plant variety rights
  • You wish to apply for or extend your plant variety rights
  • A dispute arises concerning licences, royalties or the exploitation of a plant variety
  • There is uncertainty concerning the rights holder or the transfer of plant variety rights 

We advise growers, breeders and businesses in the horticultural sector on plant variety rights and related matters. You will not receive a standard solution, but practical and strategic advice tailored to your business and objectives. 

Do you have questions about plant variety rights or are you involved in a dispute? Please feel free to contact us for advice on your situation.

FREQUENTLY ASKED QUESTIONS 
ABOUT PLANT VARIETY RIGHTS

When am I eligible for plant variety rights?

A plant variety is eligible for plant variety rights only if it satisfies a number of statutory requirements. The variety must be new, distinct from existing varieties, sufficiently uniform and stable. During the application process, an assessment is made as to whether the variety meets these requirements.

How do I apply for plant variety rights?

An application for Dutch plant variety rights is submitted to the Board for Plant Varieties. An application for plant variety rights covering the entire European Union can be submitted to the Community Plant Variety Office (CPVO). An assessment is then made as to whether the variety satisfies the statutory requirements for protection.

How long do plant variety rights last?

Plant variety rights are granted for a limited period. For most plant varieties, this period is 25 years. A 30-year term applies to certain crops. During this period, the holder of the plant variety rights can take action against unauthorised use of the protected variety.

What is the difference between plant variety rights and a patent?

Plant variety rights protect new plant varieties. A patent protects technical inventions. While plant variety rights relate to the variety itself, a patent is directed at a technical solution or innovation. Both rights give their holder an exclusive position, but they differ in terms of the conditions for protection, scope of protection and duration.

What is the breeder's exemption?

The breeder's exemption makes it possible to use a protected plant variety for research, breeding and the development of new plant varieties. This exception promotes innovation and further development within plant breeding.

Can I transfer or license my plant variety rights?

Yes. You can sell your plant variety rights or grant licences. It is important to record these arrangements properly in legal documentation.

What are essentially derived varieties (EDVs)?

An essentially derived variety (EDV) is a variety that is largely based on an existing protected variety and retains its principal characteristics. Whether a variety constitutes an EDV can have significant consequences for the exploitation of the variety, because authorisation from the holder of the original plant variety rights may be required. This regularly gives rise to legal disputes. Our plant variety rights lawyers are here to help