Plant breeders' rights

What we do

Plant breeders' rights are intellectual property rights that breeders can apply for after breeding a new plant variety. The new plant variety must possess distinctive character and be stable for reproduction (i.e., homogeneous and stable). The Netherlands has an extensive history regarding breeder expertise and breeding. Due to the system of national and international plant breeders' protection, plant breeders' rights can represent significant value. Plant breeders' protection must be applied for in any desired geographical area. For instance, plant breeders' rights can be applied for in the Netherlands, the European Union, the United States, and in the UPOV member states. The UPOV member states are dozens of states that, based on the UPOV Convention, have agreed upon a framework system for plant breeders' rights in the geographical areas of the signatory member states. It is advisable to seek expert advice when establishing plant breeders' rights. Once a plant breeder's right has been established, various disputes may arise: for example, regarding infringement of plant breeders' rights, disputes in the licensing sphere, and the validity of established plant breeders' rights.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of plant breeders' rights. Contact us to discuss the possibilities.

Plant breeders' rights within intellectual property law (IP law)

Plant breeders' rights are an independent part of Intellectual Property (IP) law. Unlike many other IP rights, plant breeders' rights do not protect a trademark, expression, or technical invention, but rather a new plant variety as such: the exclusive right to produce, propagate, and market propagation material of that variety. For breeding companies, seed houses, tree nurseries, fruit growers, and traders, this right is often their most valuable asset. We therefore approach plant breeders' rights through an IP lens: how do they position themselves alongside patent law and trademark law, and how do you build a comprehensive protection strategy around your variety portfolio? Our mixed teams of lawyers and in-house counsel serve both international breeding concerns and the tree nursery or fruit grower around the corner.

Legal framework: from the Seed and Plant Material Act to CPVO and UPOV

Dutch plant breeders' rights are regulated by the Seed and Plant Material Act 2005 (Zpw 2005). In addition, there are Community plant breeders' rights, which offer protection throughout the entire European Union with a single application and are regulated by Regulation (EC) No 2100/94 on Community plant breeders' rights. The international basis for this lies in the UPOV Convention (most recently the Act of 1991), to which dozens of UPOV Member States have since joined. A plant breeders' right is territorial: it applies only in the area for which it has been granted. Anyone trading internationally must therefore apply for protection per territory or choose the Community route. The duration of protection is in principle 25 years, and 30 years for trees, potato varieties, and certain fruit varieties, among others. We advise on the correct route (national, Community, or a combination) and on the relationship with other intellectual property rights in your portfolio.

Application and the DUS examination

You apply for a national plant breeder's right with the Plant Variety Board; a Community plant breeder's right with the Community Plant Variety Office (CPVO) in Angers. The core of the assessment is the so-called DUS test: the variety must be distinguishable (Distinct), uniform (Uniform), and stable (Stable), and furthermore, new. Novelty means that the propagating material has not been traded with the breeder's permission for longer than a limited period prior to the application. In practice, the technical DUS test is carried out in the Netherlands by Naktuinbouw, which determines over one to two growing seasons whether the variety meets the requirements. Proper preparation of the application, the variety name, and proof of distinguishability is crucial for success. We guide the application, monitor deadlines, and act in the event of objections or appeals against decisions regarding granting or refusal.

Breeder's exemption, farmer's exemption and the limits of the law

Plant breeders' rights include important statutory exceptions. The breeders' exemption permits the free use of a protected variety as starting material for breeding a new variety. This prevents plant breeders' rights from blocking innovation, but has limits regarding so-called substantially derived varieties. The farmers' exemption (the “farmer’s privilege”) allows a grower, under certain conditions, to re-sow harvested material from specific crops for their own farm, often in exchange for fair compensation. In practice, the delineation of these exemptions is a common source of disputes. We advise both breeders and growers on the scope of these exceptions and on the difference with the patent law, which may specifically apply to biotechnological inventions.

Licensing and exploitation of plant breeders' rights

Much value from plant breeders' rights is realized through licenses and royalty structures. A good license agreement regulates territory, permitted propagation, royalty rates, reporting and audit rights, and the consequences of termination or non-payment. Registration of a license in the variety register is not mandatory, but advisable: a registered licensee can, under certain circumstances, take independent action against infringement. For Community plant breeders' rights, registration is handled through the CPVO. We draft and review license and royalty agreements, aligning with our broader practice regarding licensing contracts. In this way, you lay a solid commercial foundation for your variety portfolio, from international corporations to family businesses.

Infringement and enforcement of plant breeders' rights

If your protected variety is propagated or traded without permission, strong enforcement tools are at your disposal. The process often begins with a formal notice, followed by seizure of evidence or provisional attachment of the material. In summary proceedings, an injunction can be sought on short notice; in main proceedings, damages or disgorgement of profits may be demanded, in addition to the destruction or recall of infringing material. In the case of cross-border infringement, customs measures may also be employed. To establish evidence, the judge may order a comparative cultivation or a DNA analysis. Our lawyers litigate before the competent court, while our in-house counsel assist you with the practical construction of the evidence file. Conversely, we also defend you against an alleged infringement or an attack on the validity of a granted plant breeder's right.

Frequently asked questions about plant breeders' rights

What exactly does a plant breeder's right protect? It protects a new plant variety as such: the exclusive right to produce, propagate, and market propagating material of that variety.

How long does the protection last? In principle 25 years, and 30 years for trees, potatoes, and certain fruit varieties, among others, provided the annual maintenance costs are paid.

What is the difference between plant breeders' rights and patent law? Plant breeders' rights protect a specific plant variety using the DUS criteria, while patent law protects a technical or biotechnological invention. In practice, the two can overlap; we advise on the relationship between them.

May I use a protected variety for further breeding? Based on the breeder's exemption, often yes, but restrictions apply to substantially derived varieties. Have this assessed on a case-by-case basis.

Can I protect internationally in one go? With a Community plant breeders' right via the CPVO, you cover the entire EU in a single application; outside of that, you apply per UPOV Member State.