EU: Navigating the impact of Brexit on your plant variety rights portfolio

Current position:

• Until 31 December 2020, the standard processes are still in place for applicants for and holders of Community Plant Variety Rights (CPVR) in the EU, including in relation to the UK.

• Applications for CPVRs can be filed at the Community Plant Variety Office (the CPVO) in the usual way.

• Concurrent applications can be made to the UK Plant Variety Rights Office (UK PVRO) for a UK Plant Breeders' Right (UK PBR). Although applications for CPVRs filed now will not grant before the end of the year, current guidance from the UK PVRO is to continue to file with the CPVO as normal, rather than making a double application to the UK PVRO and CPVO.

From 1 January 2021:

Granted CPVRs

• CPVRs granted by the end of December 2020 will continue to be recognized in the remaining 27 EU Member States and will be protected under UK law, as UK PBRs.

• Any such granted CPVRs should be automatically brought over onto the UK PBR register, without any fee, but it will be important to double check the register to ensure that the granted rights are listed correctly.

• Records will need to be updated to ensure proper tracking of these UK PBR registrations and CPVR holders will need to consider whether they wish to maintain these automatic registrations in the UK.

• After 3 years, unless domiciled in the UK, rights-holders will need to appoint an agent based in the UK to manage such automatically registered UK PBRs.

• A non-EU based CPVR holder / applicant must have a representative based in the EU. From 1 January 2021 this representative cannot be based in the UK and so CPVR holders / applicants who currently have a UK-based procedural representative will need to switch to an EU-based representative.

• The eventual outcome of any administrative or judicial proceedings underway on 31 December 2020 relating to a granted CPVR will apply to the equivalent UK PBR.

Pending CPVR applications

• For CPVR applications which are still pending (i.e. have not been granted) by the end of December 2020, rights-holders will need to apply to protect the variety in the UK in order to have coverage in the UK.

• For such applications, if filed by the end of June 2021, the priority date of the CPVR application will be deemed to be the priority date for the UK PBR application for the purpose of determining distinctness, novelty and entitlement to the right.

• The cost and procedure for filing such applications are still under discussion. Applicants based outside of the UK will need a procedural representative based in the UK.

New applications

• For applications for new varieties, two separate applications – one application for a CPVR and one for a UK PBR - will need to be made to obtain coverage across the EU and the UK.

• The CPVR application will still need to be made to the CPVO, following existing procedures. Non-EU based applicants will need a procedural representative based in the EU (which will exclude the UK).

• Current guidance indicates that applicants for a UK PBR will need to apply to the PVR Office at the Animal and Plant Health Agency, using the UPOV PRISMA online system. The procedures and costs for such UK PBR applications are currently under review. Applicants based outside of the UK will need a procedural representative based in the UK.

• Given the limited distinctness, uniformity and stability (DUS) testing capability in the UK, the UK will continue to accept EU DUS reports for UK PBR applications if they are of a comparable quality to UK DUS reports, save for agricultural and vegetable species that are currently tested in the UK.

• Although this area is under discussion, current guidance states that the EU will not accept UK DUS tests. Thus for some agricultural and vegetable species DUS testing in both the UK and EU will be required where both a CPVR and PBR are applied for.

• The grace period for novelty for CPVR applications will extend to 4 years (or 6 for trees and vines) with respect to the UK (and remain 1 year for EU countries). The grace period for novelty for UK PBRs will be 1 year for UK sales and 4 years (or 6 for trees and vines) for EU sales.