Legal Seeds: Don't Let Your Plant Variety Rights Wither Away

The New Year Countdown – Deadline 1 January 2024

Currently, protected plant varieties which were granted by the EU Community Plant Variety Office (CPVO) by 31 December 2020 continue to be protected in the UK. This protection is referred to as Retained EU Plant Variety Rights (Retained EU PVR), a list of which can be accessed here. Any term remaining in the granted lifespan is calculated from the date the original EU right was granted and remains valid in the UK.

However, a deadline of 1 January 2024 was instituted post-Brexit, requiring Holders of Retained EU PVRs to provide more information than had previously been required in order to retain these rights. Holders of Retained EU PVRs now have less than one month to act before the deadline to ensure compliance. The Animal and Plant Health Agency (APHA) indicate that there are several requirements that must be met to continue the lifespan of these variety rights.

What You Need to Do

In preparation for changes effective from 1 January 2024, the Rights Holder needs to provide the following information to APHA. There is no charge associated with the provision of this information:

Confirm their status as the Holder of Retained EU Plant Variety Rights.

1. Indicate whether they wish to continue holding or surrender the Plant Variety Right(s) from 1 January 2024.
2. Provide a copy of the relevant section of the excel data sheet listing all Retained EU Plant Variety Rights (sent by the APHA to Holders).
3. Provide a UK address for service or the name and address of an agent in the UK, regardless of the location of the Rights Holder.
4. Complete and sign an Authorization of Agent Form (PVS11) (if required)
5. If there has been a change in the Holder of a Retained Plant Variety Right since 31 December 2020, complete an APHA Assignment of Rights form (PVS10) and provide supporting documentation. This can be in the form of a copy of the CPVO website, showing that the EU Rights Holder has changed.

Upon Completing These Actions:

The Right to the plant variety will be issued with a UK grant number and this information will be added to the APHA database. In addition, the Right will be published in the Gazette and Special Edition.

Consequences Of Non-Compliance

If the required information is not provided, this will lead to a formal request from the Controller under regulation 6 of the Plant Breeder’s Rights (Amendment etc) (EU Exit) Regulations 2019. Non-compliance may result in the termination of Retained EU Plant Variety Rights, meaning the total loss of your rights to that species in the UK.

Future notes

All new varieties which have been submitted since 1 January 2021 will need one UK Plant Breeder’s Rights (PBRs) application and a separate EU Community Plant Variety Right (CPVR) application to maintain the pre-Brexit level of Rights. The UK still accepts EU reports for most species, but only if they are of comparable quality to UK requirements for the (a) distinctiveness, (b) uniformity and (c) stability (DUS) tests. The EU no longer accepts UK DUS tests. Once granted, PBRs provide the rights holder with the exclusive right to commercialise the propagating material for up to 25 years (30 years for trees, vines or potatoes).

There have been no changes to the application process to obtain a CPVR. However, if you are UK-based (with no address in the EU), you need a EU representative not only to make an application for a CPVR, but also to pay the renewal fees once the right is granted.