Plant breeders’ rights

For plant breeding

As humans, we are able to influence the growth of plants, which is often applied to agricultural and horticultural products. We can even generate new varieties and species. We call this breeding. Some examples of this are: a tomato that can grow on salty soil, breeding a new colour of flower from a particular variety, achieving resistance to a fungus, or breeding a species that can thrive with less water or light.

Protecting your breeding

The selection and manipulation of plants or animals takes time and effort. If that effort leads to a positive outcome, this achievement can be protected in order to recoup the investment. This achievement falls under the ZPW (Seed and Planting Material Act 2006), the UPOV Convention and EU Regulations 2100/94 and 873/2004. In the Netherlands, the Board for Plant Varieties (1) grants plant breeders’ rights and authorises (2) agricultural varieties, (3) forestry crops and (4) vegetable varieties; see also the Dutch Variety Register (including crop name search or variety name search).

Prohibiting use or charging royalties

With a plant breeder’s right, you can prohibit others from using your invention or, conversely, grant them licences so that others can benefit from your efforts and you receive compensation for your efforts. The plant breeder’s right provides for the urgent need to protect the position of the breeder of a new plant variety. In this respect, plant breeders’ rights are comparable to patents. They also include rules on crop designation and variety names, so that trademark and trade name rights also play a role.

Plant breeders’ rights include rules relating to the protection of the results of plant breeding. They are sometimes referred to as “flower rights”, but can just as easily apply to vegetables, grains or (fruit) trees.

How does licensing work under plant breeders’ rights? / How do plant breeders’ rights work?

If you have successfully developed a new plant variety, you can grant others permission to use this variety through a licence. Such a licence is nothing more than an agreement: you remain the holder of the plant breeders’ rights, but grant another party – often a grower or distributor – the right to propagate, sell or commercially exploit the variety. In exchange, you usually receive a fee. You determine the conditions yourself: exclusive or non-exclusive, regionally limited or worldwide. Please note: a common mistake is to conclude licences verbally, without putting them in writing. This can lead to difficult discussions about usage rights and payments. So always ensure you have a clear and legally binding licence agreement. A plant breeders’ rights licence can be registered in the Variety Register, which is managed by the national or international plant breeders’ rights office, depending on the country where protection is sought. Some of the most important registers: in the Netherlands, the register is managed by the Board for Plant Varieties. Registration of a licence in the variety register is possible at the request of the holder or the licensee. This is regulated in the 2005 Seed and Planting Material Act, which can be found at:

  • Website: https://www.raadvoorplantenrassen.nl
  • Registration is voluntary, but it is recommended for legal certainty vis-à-vis third parties.
  • Registration requires a written request, usually accompanied by the licence agreement or relevant extracts.
  • Article 77 of the ZPW 2005 stipulates that: ‘A licence holder who is registered in the variety register may take action against infringement of plant breeders’ rights as if he were the holder of the rights, unless the licence expressly provides otherwise.’

For varieties protected at EU level, the licence can be registered with the Community Plant Variety Office (CPVO) via:

  • Website: https://cpvo.europa.eu
  • Registration is possible at the request of the holder or licence holder (with the consent of the holder).
  • The registration specifies whether the licence is exclusive or non-exclusive.
  • Article 101(2) of Regulation 2100/94: ‘The holder of a Community plant variety right shall have the right to take action against infringements of that right. The licensee may do so only with the consent of the holder, unless the licence expressly grants the right to take legal action.’

How long does plant breeders’ rights last?

Plant breeders’ rights are not permanent, but they do offer a substantial period of protection. For most plant varieties, the period of protection is 25 years from the date on which the right was granted. For trees, vines and potato varieties, this period is even 30 years. Within that period, you as the holder have the exclusive right to commercially exploit the variety – no one else may produce, market or propagate it without your consent. Please note: the right remains valid only if you pay the annual maintenance fee and maintain the variety as originally registered. If these conditions are not met, the right may expire earlier. A common misconception is that protection starts at the time of application; this is not correct – it is the official date of grant that counts. Would you like to know how to maintain your right or arrange timely succession? We are happy to advise you.

What are the legal steps to take in the event of an infringement of plant breeders’ rights?

Have you noticed that someone else is propagating, selling or using your protected plant variety without your permission? If so, there is a good chance that your plant breeders’ rights have been infringed. The first step is usually a letter of formal notice: in this letter, you denounce the infringement and demand that it cease immediately, often under threat of a fine or legal action. If there is no response or the infringement continues, you can seek an injunction through the courts, possibly with a recall of the unlawfully traded material. In addition, you can claim compensation for lost income or damage to your image. It is important that you can substantiate the infringement properly – for example, with proof of the origin of the plant material or analyses demonstrating genetic similarity. Many breeders underestimate the importance of this evidence. Our tip: do not wait too long and carefully collect evidence from the outset.

If you are a breeder or stakeholder, Fruytier Lawyers in Business can help you combat infringements of your plant breeders’ rights, draw up licences and collect royalty payments.