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UNIFORM COMMUNITY PLANT VARIETY RIGHT (Regulation EEC No. 2100/94 of July 27, 1994)

1. Introduction

In the past, plant breeders have had the opportunity to apply national plant variety rights in most of the 15 Member States of the European Union. Such a protection has been and is limited to the territory of each individual Member State; application for protection must have been made to the competent authority of these Member States.

The Regulation No. 2100/94 has instituted a new regime of a Community Plant Variety Right in parallel with the national protections.

Therefore, plant breeders may ask for protection throughout the European Union by a single application to the Community Plant Variety Office. Protection may be granted by a single decision of this Office. This Office is located in Angers (France).

2. Filing for Community Plant Variety Rights

a. Receiving Office

You may apply directly to the Community Plant Variety Office or to the national agency of Member States. An application and priority date may be allocated on the basis of the first date of receipt at either office.

The national agency is not required to deal with said application; its role is limited to a "receiving office" and to the transmission of the received documents to the Community Plant Variety Office.

Therefore, it is strongly recommended to send separate information to the Community Office directly in order to avoid any risk that an application gets lost on its way to the Community Office or arrived beyond the time limit required for its transmission.

In addition, the application fee should be paid directly to the Community Plant Variety Office.

b. Prosecution

1°. Request

The request comprises an application form to serve as basis for application data.

Requested information are related to:

- the applicant,
- the representative,
- the original breeder of the variety,
- a suggestion regarding the variety name which will be mentioned on the Official Grant Certificate, if it has been accepted.
- the taxonomic variety denomination, and
- priority filing in one or more member countries of the UPOV Convention.

It is necessary to designate a representative if the applicant does not possess an address on the territory of the European Union.

In addition, a technical questionnaire serving as basic information for the conduct of the variety technical examination should be added to the request.

However, it is possible to request the confidential treatment of the data require_onced in said technical questionnaire.

It should be noted that the priority of a filing is valid for one year.

2°. Fees

Fees should be paid in EURO directly at the Community Plant Variety Office.

These fees comprise:

- a filing fee (which must be paid upon filing or within a non-extendible delay of two weeks after the filing date),
- examination and annual fees (the amount depends on the type of the plant variety to be protected).

3°. Examination Prosecution

The technical examination of the variety (as defined by Articles 6 to 10 of the Community Regulation) is made upon its distinctive character, its uniformity, its stability and its novelty.

a) Distinctive character (Art. 7)

A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge at the date of application.

The existence of another variety shall in particular be deemed to be a matter of common knowledge if on the date of application:

- it was the object of a plant variety right or entered in an official register of plant varieties, in the Community or any State, or in any intergovernmental organisation with relevant competence,
- an application for granting of a plant variety right in its respect or for its entering in such an official register was filed, provided that the application has led to the granting or entering in the meantime.

b) Uniformity (Art. 8)

A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics which are require_onced in the examination for distinctive character, as well as any others used for the variety description.

c) Stability (Art. 9)

A variety shall be deemed to be stable if the expression of the characteristics which are require_onced in the examination for distinctive character as well as any others used for the variety description, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each cycle.

d) Novelty (Art. 10)

A variety shall be deemed to be new if, at the date of application, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder for purposes of exploitation of the variety:

- earlier than one year before the above-mentioned date, within the territory of the Community;
- earlier than four years or, in the cases of trees or vines, earlier than six years before the said date, outside the territory of the Community.

This technical examination will be conducted by national offices of Member States.

The designation and the respective responsibility of these examination offices have not been fixed yet.

However, if a technical examination has been realised upon the same plant variety in a Member State of the European Union, the Community Plant Variety Office may consider that the examination report of said Member State is sufficient to obtain a community right for said plant variety.

3. Duration of Protection

The duration of protection is twenty-five years from the filing date.

The duration of protection for trees and vines is thirty years from the filing date.

It should also be noted that annuities are payable as from the date of grant.

4. Conclusion

Since April 1995, a plant breeder may protect his plant variety right by a community filing and/or by one or more national filings.

The advantages of a community filing are:

- large consumer market coverage,
- rights obtained by a single centralised filing and examination prosecution,
- obtaining uniformed rights throughout the Member States of the European Union.

In addition, its filing and examination fees are less expensive than the cumulative fees of the corresponding national filings.

Therefore, if you are interested to obtain a protection for a plant variety right in more than three countries of the European Union, we recommend strongly the filing of a community plant variety application.