2012 CIOPORA Chronicle

Plant breeder’s rights do not
restrict breeding activity with a
protected variety. UPOV permits
one member country to conduct
examination of a variety for potential
granting of breeder’s rights
and another member country the
option to choose whether to accept
that evaluation for its own grant.
CPVO
The “Community Plant Variety
Office” is administered by a group
of European Union (E.U.) UPOV
member states whereby plant
breeder’s rights are granted. A major
difference in filing for plant breeder’s
rights in the E.U. compared to
U.S. Plant Patents and U.S. PVPs is
that plant material is submitted by
the breeder (rather than a complete
botanical description as provided
for U.S. Plant Patent and Plant
Variety Protection consideration),
and the variety is grown for examination
in a selected site for that crop
alongside other candidates and/or
standard or established varieties in
the E.U.
In addition to a filing or application
fee, there are fees for examination
for the growing period of the plant
along with annual fees for continued
protection after approval for as
long as the protection is desired or
allowed.
Discussion
The advantages of the U.S. plant
patent protection include the following:
Plant patents are significantly
less expensive than either an
E.U. CPVR certificate or a U.S.
PVP certificate. The total cost to
file and receive a U.S. plant patent
is generally less than $4,000 USD.
There are no yearly annuity fees for
U.S. plant patents and this protection
lasts for 20 years for fruit and
ornamental crops. In addition, the
disclosure requirements for a U.S.
plant patent are less stringent and
no germplasm examination is required.
The breeder provides a written
description of the new variety
reasonable enough to distinguish
it from other related varieties and
photos of the new variety.
However, concerning infringement,
a plant patent holder must prove
the accused variety was actually
derived asexually from plant
material representing the patented
variety. This may be an obstacle in
proving infringement during a legal
proceeding.
The advantages of the CPVR
certificate include having CPVO
scientists conduct independent trials
to compare the new variety with
other commercial varieties if the
new variety is eligible to receive an
E.U. CPVR grant. UPOV allows
for one member country to conduct
an examination of a variety for potential
granting of breeder’s rights
and then another member country
can choose whether to accept the
evaluation for its own grant. With
an issued E.U. CPVR certificate
protection extends to Essentially
Derived Varieties (EDV) that may
be developed and sold by competitors
and also extends to harvested
materials. Some people have recommended
that the E.U. and the U.S.
apply a harmonised PBR system
including DUS testing used to
obtain an E.U. CPVR certificate.
Very few disputes
Obtaining and maintaining an
E.U. CPVR certificate is often
three to five times more expensive
than a U.S. plant patent. Defining
an EDV has proven to be very
difficult for scientists and different
courts have had conflicting decisions
even on the exact same facts.
Also, protection for harvested
materials has had limited success in
Europe.
Currently, it appears the majority of
companies and breeders in the U.S.
have been reasonably satisfied with
the protection provided by the U.S.
plant patent and the very low cost
and quick examination time for obtaining
an issued U.S. plant patent.
There have been very few disputes
or court decisions involving US
plant patents. Many European
companies prefer the E.U. CPVR
system and would like a similar system
implemented in the U.S. This
preference is likely due to the fact
that a U.S. plant patent is restricted
to the U.S. and an E.U. CPVR is
restricted to the E.U. |||
CIOPORA Chronicle April 2012 | www.CIOPORA.org 15