Challenges and trends in EU Plant Variety Protection (PVP) for ornamentals

CIOPORA, the International Association of Breeders of Asexually Reproduced Horticultural Varieties, provides the most up-to-date EU Plant Breeders’Rights (PBR) data while sounding the alarm on the drop in CPVR applications in different crops in the European Union, especially the ornamental sector.

In 2023, the number of applications for Community Plant Variety Rights (CPVR) saw a decline in all crop sectors, especially in the application of ornamental varieties. From January to September 2023, there were 201 fewer applications compared to last year, 34.8 per cent of which referred to the ornamental sector (fig. 1 and 2).

Fig 1 & 2: Infographic made by CIOPORA from date shared by the Community Plant Variety Right Office.

PROBABLE CAUSES

The causes of this drop have not yet been identified, but it is believed to be mainly due to some tailspin effects of the Covid-19 pandemic, compounded by the extreme weather conditions that affected some major production areas and a highly unstable global political and economic situation, which led to an increase in shipping and electricity costs for the plant industry.

Nevertheless, the market – especially for cut flowers – seems to have held out, overall, in some cases, with some adjustments of business strategies, for example, by focusing further investments on a few selected varieties.

Despite the situation described above, ornamental crops remain the leading sector for CPVR applications submitted, as shown in the following graph (fig. 3):
More side effects on the application rate could, however, be seen in the course of 2024 as a result of the increase in fees from July 2023, decided by the CPVO in the aftermath of the Covid-19 crisis in response to the peak in energy costs and the surge of inflation across Europe.

Fig 3: The Community Plant Variety Right Office presented an infographic at the Administrative Council Meeting of October 5, 2023, in Malaga, Spain.

WHAT ARE THE REMEDIES?

For breeders, there are two main remedies to mitigate this:

• To lower examination costs, breeders may file a national Plant Variety Right (PVR) application and then ask for an extension of protection before the CPVO. When the DUS test is carried out by an examination office (EO) entrusted for the same species, the Office takes over the existing DUS reports. DUS reports from a non-EU EO may also be considered under certain circumstances.
• Until December 8, 2023, small and medium enterprises (SMEs) may request to be admitted to the SME Fund and be granted a refund of 50 per cent of national PVR or CPVR application fees. Requests for reimbursement must be submitted before the PVR application. The initiative should be renewed for 2024. The possibility of extending the PVR Voucher to the partial reimbursement of technical examination fees is currently under discussion.

MORE CPVR CANCELLATIONS

The drop in registration applications has, moreover, been accompanied by a rise in CPVR cancellations. Most of these are, apparently, attributable to non-payment in good time of the annual fees through human error/oversight. This led to increased appeals against CPVO cancellation decisions, yet often resulting in unfavourable outcomes for titleholders, as if the material error is established, there are no remedies available to rectify the situation. The CPVO, therefore, strongly recommends paying the annual fee as soon as the debit note is served. More information is available on this link.

VIOLATION OF PBR

Besides the economic efforts and difficulties in obtaining and maintaining Plant Breeders´ Rights (PBR), breeders must face major challenges fighting against third-party infringement activities, especially after the “Nadorcott” decision (C-176/18) exposed loopholes concerning provisional protection and protection of harvested material, undermining breeders´ trust in the UPOV Plant Variety Protection (PVR) System.

More and more protected varieties are propagated and then placed on the market, imported, and exported without the breeder´s consent. For the floriculture sector – especially for cut flowers – the situation becomes particularly critical in the vicinity of certain occasions, such as Mother’s Day or Valentine’s Day, when the demand for flowers increases worldwide.

Little attention is given to the fact that using and selling plants from an unauthorised source may constitute a PBR violation, punishable in the country where they are produced as much as in the consuming country where they are sold. Moreover, such unlawful practices distort the market, affecting the entire value chain of the protected variety, to the detriment, especially, of honest growers, who – having to comply with the obligation to pay royalties to the titleholder – cannot compete with prices set by unlicensed producers.

ENHANCING IP COMPLIANCE

All value chain operators can contribute to enhancing IP compliance by implementing a set of measures:

• Make sure you get plants and flowers from legitimate sources;
• Use variety denominations, trademarks, and trade names;
• Rely only on certifications requiring IP compliance. Global GAP has recently updated its Integrated Farm Assurance (IFA) standards (IFA Smart – v6)
  Search (globalgap.org), obligatory from 1st January 2024, including the principle that “Propagation materials are obtained in compliance with intellectual property laws” as a ´Major Must´. Producers not complying with IP Law shall not be granted a Global G.A.P certificate.

It is important to stress that plant breeders play an essential role in fostering innovation in agriculture and horticulture by placing varieties of consistently higher quality on the market, bringing benefits to the value chain and society. Therefore, their commitment must be safeguarded through a common effort.
To achieve this, CIOPORA works continuously with national and international authorities and key industry stakeholders by enhancing the legal framework to promote breeders’ innovation.

By Selena Travaglio. She is the Legal Counsel at CIOPORA, the International Association of Breeders of Asexually Reproduced Horticultural Varieties.