Plant Variety Protection in the European Community - A 10-year review

Introduction

In the European Community two options for plant variety protection exist:
- national protection
  (21 national schemes with national coverage) and
- protection at Community level.

The Community PVR system is managed by the Community Plant Variety Office, the CPVO. It has its seat in Angers, France. The core business of the CPVO is to decide on applications for Community protection. In order to qualify for protection, a variety has to meet the requirements of Distinctness, Uniformity and Stability, the so-called DUS requirements. The technical assessment of candidate varieties is outsourced to examination offices spread out over the territory of the Community.

The state of PVR protection in the European Community

Evolution of the annual number of applications received for Community Plant Variety Rights (Jan 96 to Dec 05)

As mentioned, the Community system exists in parallel with the national PVR systems of the EU Member States. The Community system offers protection at the level of the Community. On the basis of one application, a Community plant variety right can be obtained that is valid in the territory of all the EU Member States, whereas national protection is limited of course to the territory of the state in question. It is up to the breeder seeking PVR protection in the European Community  to decide what type of protection he prefers.  If he sees a market for a new variety in more than two Member States, the Community option is the logical choice.

The Community system was a success from the beginning, as the annexed statistics show. This development shows that the breeding industry, although faced with the effects of the difficult economic situation, is still able to create a constant stream of new varieties: new varieties with traits such as higher yield, better quality traits and more effective resistances against pests and diseases; new varieties that are better adapted to the needs of farmers and flower producers, to the requirements of the processing industry, or, in the case of ornamentals, to the ever changing taste of the consumers.

It also shows that the UPOV-type plant variety right is still considered by breeders as an adequate instrument to protect the output of their industry.

The flip side of the constant growth of the Community system is the decline of the national PVR systems. This downward development is illustrated by the statistics (at right) of applications of the “top ten” Member States (2004), respectively in:

1994, before the creation of the Community system;
1995, the first year the system was operational and the CPVO received 1669 applications, and;
2004, a year when the Community system, with almost 2700 applications, had reached its cruising speed.

Each of the other Member States has received in 2004 less than 10 applications.

Enforcement

Counterfeiting, piracy and infringements of intellectual property in general are a constantly growing phenomenon which nowadays have an international dimension and are a serious threat to national economies and governments.

Evolution of varieties protected under the Community system since 1996

The unauthorized production of goods protected under IP law has a value of many billions of euros worldwide.  Community plant variety rights do not escape the tendency to bypass Intellectual Property Rights. Breeders are frequently confronted with the illegal reproduction and commercialization of their varieties, both directly - if it concerns production within the boundaries of the European Union - and indirectly - if it concerns the import into the territory of the EU of plants or flowers reproduced, without their authorization, in third countries.  Fortunately, they are not without legal means to fight this phenomenon. The European Commission has taken a number of legislative initiatives in order to provide right holders the legal weapons to enforce their rights and to act against infringers.

The future

The need of protection of new plant varieties by Intellectual Property Rights is, as a result of the developments mentioned above, more necessary than ever. In this context, it should be stressed that some traditional  protection methods, for instance secrecy in respect to parental lines, have become less effective. Modern techniques open the door for identification and reproduction of parental lines out of seed of the hybrids. Breeders of hybrids are therefore more and more inclined to seek PVR protection for their parental lines. In this context, it can be mentioned that the weak natural protection of vegetatively reproduced varieties is an important reason why ornamentals are the object of around 60 % of the applications for Community protection.

The value of  Community PVR’s depends on the quality of the rights and on the effectiveness of the instruments to enforce  them. It is the ambition of the CPVO to maintain the high quality level of its operations and where possible to improve it.  As regards the second element, practice will show whether the IPR enforcement  legislation initiated by the European Community has the desired effect.

I am convinced that the Community system will remain an effective tool for breeders to safeguard their varieties from illegal reproduction and exploitation within the European Community.

Bart Kiewiet can be reached at Kiewiet@cpvo.europa.eu
 

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