The root of the problem

While uncertainty persists, plant breeders may need to double down to secure their rights, says Penny Maplestone of the British Society of Plant Breeders

How could the UK government protect EU plant variety rights as part of Brexit negotiations?

We need to make sure that EU plant variety rights (PVR) still apply in the UK. It doesn’t have to be part of the Brexit negotiations—it’s something that the UK can do unilaterally.

EU rights protect nearly all the crop varieties that are in the UK market at the moment. The UK government needs to pass legislation that means at the moment of Brexit, the UK will automatically add those EU protected varieties onto the UK register, so they are automatically granted equivalent rights in the UK.

This could come as part of the Great Repeal Bill or, more likely, it will be in one of the statutory instruments the government is talking about.

We’ve been speaking to officials in the Department for Environment, Food & Rural Affairs (DEFRA) about this since around the day of the referendum in June 2016, because it was such an obvious, immediate concern. It is only now that we have the first indications of DEFRA’s plans to provide the solution, but we still have no certainty over processes and timescales or any guarantee that protection will be secured.

It is frustrating to be in this position without a positive message and assurances to give to our members that everything is going to be alright.

If you look beyond Brexit and start to look to the future, we may need to take our discussions to the EU. Ideally, we’d like the UK to stay a part of the EU variety rights system and have a relationship with the Community Plant Variety Office (CVPO). Recently, we had news that the European Commission has instructed the CPVO that it should no longer commission plant variety testing for EU PVR directly with test centres in the UK.

This affects mainly the ornamental breeding sector where the UK is currently the only EU centre responsible for testing some 600 species. It looks as though PVR has become political and it is plant breeders who will suffer.

Does the UK stand to lose its share of PVR value post-Brexit if no provisions for EU rights are made in the UK?

Yes. Take wheat, for example. It’s the most economically important crop, so I looked at our own royalty collection on wheat. At the moment, we are collecting just over £18 million a year on wheat varieties. Of the 75 wheat varieties involved, only seven have rights in the UK independently of their EU rights.

If nothing happened to guarantee continued protection of those varieties, overnight, that £18 million would drop to £900,000. That’s in terms of the royalty income to the plant breeding industry, which is the only source of income for breeding.

Faced with that scenario, a plant breeding company may choose to no longer breed varieties for the UK. If they have no intellectual property protection, they’re not going to put new material on the market.

What do EU rights holders stand to lose?

They may lose the UK market. They could put new material on the market, but they will have to pay twice, make two applications for rights both in the UK and the EU. It’s not an absolute fortune for all crops, but it may negatively affect the availability of new varieties for UK farmers and growers.

I think we could lose some plant breeding for the UK, and in losing that, there is a knock-on effect for other sectors—farmers would not have access to the new varieties, and of course, the end-users and consumers would not benefit.

Is the market big enough in the UK to want to pursue separate protection?

For some crops and some varieties, this is a business decision for each company. Many are doing this already. When they have new varieties coming along they are applying in the UK first. This is creating a resource problem for DEFRA because it hasn’t had to deal with new applications for many years. The system was dormant before.

We feel as if the fees they are paying at the moment should be waived. It’s not really the breeder’s fault that they have to make these applications. If there was a guarantee of continued protection for EU PVR post-Brexit, dual applications would not be needed.

The UK will still be a part of the European patent system, and possibly the unitary patent. Might these systems be viable alternatives to plant variety rights?

Patents are not a complete alternative for PVR—they are more of an adjunct protection. You cannot protect a plant variety with patents in Europe. You can patent a particular trait, or some methodology. Of course, then any variety with that trait or methodology would also have patent protection.

The whole area of plant patenting is under some scrutiny at the moment in relation to what’s patentable and what’s unpatentable. It is not viewed as a widespread alternative to PVR in Europe.
The latest features from IPPro Patents
As financial technology ascends to fresh highs with the prevalence of blockchain and cryptocurrencies, firms must innovate to win. Jon Calvert of ClearViewIP explains how invention and protection go hand in hand
The US Court of Appeals for the Federal Circuit’s decision in Aqua Products v the US Patent and Trademark Office has ruffled many feathers, as the burden of proof in an inter-partes review begins to shift to the petitioner
Join Our Newsletter

Sign up today and never
miss the latest news or an issue again

Subscribe now
Allergan’s recent patent deal with the Saint Regis Mohawk Tribe has drawn the ire of the industry, and the jury is still out on whether it will work
Unfavourable environments for business method patents in the US have led to an increase of filings in Asia. Benjamin Keim of Lee & Hayes explains
Doris Spielthenner of Practice Insight discusses Amazon’s now expired ‘1-Click’ purchase patent and the problems with owning such a broad “super-patent”
While uncertainty persists, plant breeders may need to double down to secure their rights, says Penny Maplestone of the British Society of Plant Breeders
Least developed countries can now more easily obtain compulsory licences during public health emergencies, but some have been slow to take advantage. Vítor Palmela Fidalgo of Inventa International explains why
Diana Portna of D&L IP Group explains how Ukraine’s compulsory licensing laws could be opened up for the public interest, and how rights owners could react
Country profiles
The latest country profiles from IPPro Patents
Bruno Nunes of BN IP explains how patent prosecution and licensing works in Macau, a market dominated by gaming and pharma
Tran Viet Phuong of Duong Tran offers a handy guide to patent prosecution
IPPro Connects

Visit our sister site
the worlds biggest and best IP directory
The Andean Community has stood firm in the defence of its owns interests, says Jesús Cuba and Kelly Sánchez of OMC Abogados & Consultores
The first preliminary injunction granted by a China IP court was awarded to Christian Louboutin. Dr Weili Ma of Chofn Intellectual Property explains
Patent prosecution in South Africa rarely favours the inventor, but recent reforms are aiming to change that, one little bit at a time
The Tanzania Patent Office is a useful partner in the prosecution process, says Sunday Godfrey Ndamugoba of ABC Attorneys
Dominic Ogega Mwale, managing partner at Mwale & Company, explains how to patent in Kenya
Patent owners looking for an attractive place to seek protection in Asia need look no further than Singapore, says Max Ng and Gerald Mursjid of Gateway Law Corporation
The latest interviews from IPPro Patents