MIKHAILYUK SOROKOLAT & PARTNERS

Patent and Trademark Attorneys

PLANT VARIETIES REGISTRATION IN THE EUROPEAN UNION

Registration of plant varieties in the European Union is conducted by the Community Plant Variety Office (CPVO) in accordance with the COUNCIL REGULATION (EC) No 2100/94 of 27 July 1994 on Community plant variety rights.

The object of Community plant variety rights in the European Union is laid out to be varieties of all botanical genera and species, including, inter alia, hybrids between genera or species. As variety shall be considered a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

  • defined by the expression of the characteristics that results from a given genotype or combination of genotypes;
  • distinguished from any other plant grouping by the expression of at least one of the said characteristics;
  • considered as a unit with regard to its suitability for being propagated unchanged.

A plant grouping consists of entire plants or parts of plants as far as such parts are capable of producing entire plants, both referred to hereinafter as variety constituents.

Community plant variety rights shall be granted for varieties that are:

  • distinct;
  • uniform;
  • stable;
  • new.

Moreover, the variety must be designated by a denomination.

A variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge on the date of application.

A variety shall be deemed to be uniform if the expression of its particular features remain uniform during its propagation.

A variety shall be deemed to be stable if the expression of its features remains unchanged after repeated propagation thereof.

A variety shall be deemed to be new if, at the date of application a variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others:

  • earlier than one year before the abovementioned date, within the territory of the Community;
  • earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community.

For filing the applications for a Patent on the plant variety in the European Union the following documents should be provided:

  • an application form for the plant variety containing general information as for the variety, identification of the botanical taxon, as well as information about the breeder(s), applicant(s), representative etc.;
  • if the applicant is not the breeder, or not the only breeder, it is necessary to provide the relevant documentary evidence as to how the entitlement to the Community plant variety right came into possession of the applicant;
  • a technical questionnaire containing detailed information about the variety characteristics, method of propagation of the variety, indexes of distinctiveness of the variety from similar variety(ies), special conditions for growing the variety, main use of the variety, breeding scheme, information on plant material to be examined, the geographic origin of the variety etc.;
  • information about any other applications filed in respect of the variety;
  • a proposal for a variety denomination;
  • a Power of Attorney designating a representative, that should be signed and stamped by the applicant and also certified by notary and be legalised by Apostil;
  • photographs of the plant and its organs indicating the variety main characteristics;
  • document confirming payment of the official fee.

Claiming conventional priority in respect of the prior application is possible within 12 months of the filing of the earlier application. In case the conventional priority is claimed the certified copy thereof shall be submitted to the CPVO within 3 months from filing the application.

Applicants who are not domiciled or do not have a seat or an establishment within the territory of the Community may apply for a plant variety patent in the European Union only if they have designated a representative who is domiciled or has his seat or an establishment within the territory of the Community.

Examination of the plant variant application consists of:

  • formal examination;
  • substantive examination;
  • technical examination.

During formal examination the CPVO checks that the application is filed with all the necessary documents mentioned above.

Substantive examination includes checking whether the variety may be the object of a Community plant variety right, whether the variety is new, whether the applicant is entitled to file an application. The Office shall also examine whether the proposed variety denomination is suitable.

In case the variety complies with the requirements of the substantive examination, the technical examination shall be carried out by the competent examination office in at least one of the EU Member States entrusted with responsibility for the technical examination of varieties of the species. During technical examination the Office shall grow the variety and conduct all the necessary studies to check if it complies with the requirements of distinctiveness, uniformity and stability.

The technical examination usually last 2-3 vegetation periods and in case the variety complies with the requirements of patentability the CPVO shall grant the Community plant variety right.

The term of the Community plant variety right shall run until the end of the 25th calendar year or, in the case of varieties of vine and tree species, until the end of the 30th calendar year, following the year of grant provided that annual maintenance fees are paid. The first annual fee shall be paid within 60 days of date of grant.

Community plant variety rights shall have uniform effect within the territory of the Community (27 EU member states) and may not be granted, transferred or terminated in respect of the abovementioned territory otherwise than on a uniform basis.