Guidance

Plant breeders' rights

Find out about the criteria for plant breeders' rights, the entitlements conveyed, the application process and compulsory licences.

Introduction

Improved plant varieties and good quality seeds are essential for safe, reliable and efficient crop and food production.

As an incentive for plant breeding, breeders of any species of plant - whether agricultural, horticultural or ornamental - can apply for plant breeders’ rights (PBR). These give the breeder legal rights in the UK over the varieties they have developed.

The Plant Variety Rights Office, which is part of the Animal and Plant Health Agency (APHA), administers PBRs in the UK.

Alternatively, plant breeders can make a single application for protection throughout the 27 member states of the EU to the Community Plant Variety Office, which has offices in France.

For further information, see the Guide to The Plant Varieties Act (PDF, 681KB, 102 pages) and Guide to the plant breeders' rights handbook (PDF, 233KB, 24 pages) .

What are plant breeders’ rights?

PBR in the UK are administered through the Plant Varieties Act 1997. They give breeders legal rights over any new varieties of plants they have developed and allow them to charge royalties for using these ‘protected’ varieties. This provides a means for breeding companies to fund their work.

If you hold PBR this will mean that no-one else, unless specifically authorised, can use your plant species for:

  • production or reproduction
  • selling or offering for sale
  • conditioning for the purpose of propagation
  • exporting or importing
  • stocking for any of the above purposes

These rights only apply if the plants are being used for commercial purposes - they do not apply to any act done for private and non-commercial purposes, for experimental purposes or for the purpose of breeding another variety.

PBR is valid for 25 years, except for trees, vines or potato varieties which will be protected for 30 years.

You may give up your rights at any time and rights may be terminated if the variety no longer fulfils its criteria.

What rights are there for dependent varieties?

You will also have PBR in respect of any variety which is ‘dependent on’ your protected variety.

This applies to varieties that require the repeated use of your protected variety (such as hybrids), or those which are ‘essentially derived’ from it - meaning that they were bred from it and retain its fundamental characteristics.

Application procedure, fees and forms

When making an application for PBR you must submit the following to NLPBR-Applications@apha.gsi.gov.uk.

  • an application form
  • a completed technical questionnaire for the correct species of the plant variety
  • for ornamental species - a colour photograph of the representative features of the variety

All applications and documents must be in English or have an English translation.

In some cases other forms may be required such as the authorisation of agent and/or assignment of rights.

For each application or batch of applications a completed RAS 1 or RAS 2 form must be submitted to ssd.FinanceAR@defra.gsi.gov.uk. Please note that receipt of the administration fee later than 2 weeks after receipt of application may result in delays in processing and in the longer term, the application may not be processed. We recommend that you retain a copy of the RAS form, along with the automated response which confirmed receipt of the application, for your accounting purposes.

After processing APHA will send a letter of acknowledgement and allocate a reference number to each candidate variety; please quote this number on all subsequent correspondence regarding the candidate variety

APHA Plant Varieties and Seeds will normally request seed/plant material.

Forms

Fees

Plant breeders' rights fees introduced in April 2015 (PDF, 242KB, 3 pages)

Payments

Remittance advice slips for payments in sterling and euros

Payment by credit card
Telephone +44 (0)1904 763355 and then email (or post) the completed RAS forms to ssd.financeAR@defra.gsi.gov.uk using the instructions on the form.

BACS payments
Email the completed RAS form to ssd.financeAR@defra.gsi.gov.uk

Payments by cheque
Send the completed RAS form with a cheque made payable to Animal and Plant Health Agency to:

Animal and Plant Health Agency
Finance, Block 10
Sand Hutton
York
YO41 1LZ

Fees should not be sent to Plant Varieties and Seeds in Cambridge.

How applications are processed

The candidate variety will be DUS tested and considered by experts to check whether all the requirements have been met. Proposed decisions will be announced through the UK National Lists and Seeds Committee on behalf of the Controller of Plant Variety Rights.

Announcements of a proposal to grant rights will be published in the Plant Varieties and Seeds Gazette. The announcement gives any person who can show that he or she has an interest in the decision the right to make written representations or to request a hearing in person against the proposed decision. A period of 18 days is normally allowed for such purposes. If none are received and providing all information has been submitted and fees paid a UK Grant of Rights will be issued.

Your PBR will be enforceable at any point after it is granted. However, you are entitled to reasonable compensation if your rights are infringed at any time after receipt of the application has been published in the Gazette.

Who can apply for plant breeders’ rights?

You can apply for PBR if you have bred, discovered or developed the plant variety in question, or if you have been designated by the breeder as the successor in title.

However, if you have bred, discovered or developed the plant as part of your normal employment, your employer is entitled to the rights and you are not - unless you have an agreement in place that allows you to apply for PBR in your name.

Agents

PBR can be applied for either in person or through an agent. Applicants from outside the EU must give an address for an agent within the EU. If you decide to use an agent you must give the PVRO written authorisation for the agent to act on your behalf. Likewise, if you are acting as an agent the breeder must give written proof that you are allowed to act for them.

If as a breeder you apply for your PBR through an agent you should be aware that all correspondence and requests for fees from PVRO will be sent to the agent. This means that although you hold the rights you will not receive any correspondence directly.

Likewise, if you act as an agent it is your responsibility to process any correspondence from PVRO and do all that is necessary to obtain and maintain the rights such as paying fees.

Criteria for a plant variety to obtain plant breeders’ rights

Once you have applied for PBR, the Plant Variety Rights Office will ask you to send them material of the plant variety for distinctness, uniformity and stability (DUS) testing.

Distinctness

A variety must have one or more major characteristics, which can be precisely described, that makes it different from any other variety ‘in common knowledge’. A variety is said to be ‘in common knowledge’ if:

  • it is, or has been, the subject of PBR in any country
  • it is, or has been, entered in an official register of plant varieties in any country
  • an application for PBR or entry in an official register is under consideration in any country

A variety may also be in common knowledge if it is already in cultivation, has been exploited for commercial purposes, is held in a recognised reference collection or has a precise description in any publication.

Uniformity

A variety must be sufficiently uniform in the characteristics which make it distinct, subject to normal and expected variation.

Stability

To qualify for stability, the plant characteristics which make it distinct must remain unchanged after repeated propagation.

Novelty

A variety is said to be new if it has not been sold or otherwise exploited with the consent of the applicant:

  • in the UK, earlier than one year before the date of application
  • outside the UK, earlier than four years (six years in the case of trees or vines) before the date of application

Testing organisations

Testing is carried out by approved organisations. They include the National Institute of Agricultural Botany in England and Wales, Science and Advice for Scottish Agriculture and the Agri-Food and Biosciences Institute in Northern Ireland.

For some species, testing is carried out by testing authorities in other European member states under bi-lateral agreements.

How long do the tests take?

Usually DUS testing of ornamentals takes one year, herbage varieties four years, trees three years, and other species two years. This is just a guideline and may vary if there is difficulty in establishing distinctness.

For hybrid varieties tests may also need to be conducted on the parental lines.

Information on the protocols for DUS testing

Community Plant Variety Rights

If you want to have protection for your plant variety throughout the EU you can apply to the Community Plant Variety Office (CPVO) for Community Plant Variety Rights (CPVR).

You can find online application forms and technical questionnaires on the CPVO website

The offices of the CPVO are located in France:

CPVO
3 Boulevard Marechal Foch
B.P. 10121
FR - 49101 Angers Cedex 02
France

You can also call the CPVO helpline on +33 241 25 64 00 or email them at cpvo@cpvo.europa.eu.

The procedure for applying for CPVR is very similar to the procedure for applying for UK PBR). You can find guidance on all aspects of CPVR and which forms and fees to submit on the CPVO website.

Like PBR, once CPVR is granted it is valid for a maximum duration of 25 years, or 30 years for vine, trees and potatoes, provided that the annual fees are paid.

A grant of Community Plant Variety rights gives protection throughout the EU. Please note that EU and United Kingdom (UK) rights cannot operate simultaneously. The UK, however, allows UK Plant Breeders’ Rights to be suspended whilst Community Plant Variety rights are exercised, which allows UK rights to be re-invoked if Community Plant Variety rights are terminated. Varieties with suspended UK rights are charged half the annual renewal fee for the species.

These arrangements only apply where a Community Plant Variety right follows the grant of a UK right and not vice-versa.

CPVR and PBR

CPVR and UK PBR are separate and you cannot hold both simultaneously.

Where CPVR is granted for a variety which already has a national PBR, the national rights are suspended for the duration of the CPVR.

Royalty payments on farm-saved seed

Holders of PBR are entitled to charge farmers if they use farm-saved seed (seed that they have harvested from crops they have grown themselves) of the protected variety. This applies to plant varieties of the following species:

  • potatoes
  • cereals - oats, barley, rice, canary grass, rye, triticale, wheat, durum wheat and spelt wheat
  • fodder plants - chickpea milkvetch, yellow lupin, lucerne, field pea, berseem/Egyptian clover, Persian clover, field bean and common vetch
  • oil and fibre plants - swede rape, turnip rape and linseed - with the exclusion of flax

Farmers who use farm-saved seed should pay you a fair fee - which should be sensibly lower than the royalty charged on the sales of certified seed. Farmers are required by law to declare their use of farm-saved seed (FSS) of eligible varieties to the British Society of Plant Breeders (BSPB), which is responsible for collecting FSS payments. You can make your FSS Declaration and arrange payment of royalties on the BSPB website.

You can contact them at:

BSPD
Woolpack Chambers
16 Market Street
Ely
Cambridgeshire
CB7 4ND

You can also call the BSPB helpline on 01353 653 200 or email them at enquiries@bspb.co.uk.

You can find out about farm-saved seed payments on the BSPB website .

Apply for a compulsory licence

For a two-year period after PBR are granted, the PBR holder is free to decide who they will grant licences to, and any other terms and conditions. After this time, compulsory licences may be granted.

Any person who has applied for a licence to use a protected species and feels that the PBR holder has unreasonably refused to grant the licence or has imposed unreasonable terms, can apply for a compulsory licence.

Compulsory licence applications are made to the PVRO. A compulsory licence will not be granted by the Controller of Plant Variety Rights unless he is satisfied that:

  • a licence is necessary to ensure the variety is available to the public at a reasonable price, is widely distributed, or quality is maintained
  • the applicant is in a position to - and intends to - exploit the variety in a professional way

What is the effect of a compulsory licence?

The Controller may grant any licence that might have been granted by the holder of the PBR. The Controller can also extend, limit, vary or revoke a compulsory licence and impose terms and conditions.

How to apply for a compulsory licence

A compulsory licence is a licence granted by the controller of plant variety rights in cases when a licence has been unreasonably refused or offered on unreasonable terms by the holder of plant breeders’ rights.

A form for applying for a compulsory licence can be downloaded or obtained from the Plant Variety Rights Office.

Please note all applications must be accompanied by the of £60. All forms must have an original signature and applications made by a company must be signed ‘for and on behalf of ‘ the company, by a person with authority to sign.

See guidance on compulsory licences

Contact

Plant Variety Rights Office
Animal and Plant Health Agency
Eastbrook
Shaftesbury Road
Cambridge
CB2 8DR
United Kingdom

Tel: +44 (0) 300 060 0497 Fax: +44 (0) 300 060 2115

Email: pvs.helpdesk@apha.gsi.gov.uk