Extended protection for technically challenging crops

Mr Hidde J. Koenraad is an intellectual property lawyer at Boekx Advocaten Amsterdam. This column was written for the December 2021 edition of FloraCulture International.

“There is good news for breeders of asparagus, flower bulbs, woody small fruits and woody ornamentals.  On 15 November 2021, a new regulation (EU) 2021/1873 entered into force, extending the duration of Community Plant Variety Rights for these technically challenging crops from 25 to 30 years.

The extension of the protection period is deemed justified given the technical difficulties in breeding due to ‘complex genetic backgrounds’ and slow or technically complicated reproduction in these particular species and groups of species. An account is also taken of the fact that, once plant variety rights have been granted, it often takes years for the plants of these species and groups of species to multiply and reach the numbers necessary to generate a reasonable income. As a result, right-holders only enjoy a limited period to generate income.

Besides that, the market introduction and acceptance of a new variety of these species and groups of species require more time to be profitable than for other species, as experience has shown that the commercial value of such a new variety becomes apparent only in the long term. For these reasons, compared with other species, an equitable refunding of investments in research and development is only possible at a relatively late stage of the protection of that species and those species groups.

The extension applies to rights granted before, on or after the date of entry into force of the regulation. However, the period of the extension must be reduced if, before the grant of a Community plant variety right, national PBR rights for these particular varieties were already in force in a Member State and the breeders were thus already able to exploit their varieties.

The CPVO has announced that it will publish a list of the varieties covered by the new regulation on its website. Regarding active Community plant variety rights granted before 15 November 2021, the CPVO will modify the date the Community plant variety right ends and notify the rightsholders accordingly.”