Plant breeders' rights and listing
Do you have a vegetable- or agricultural variety that you want to sell within the European Union (EU)? If so, admission to a catalogue of 1 of the EU-member states is mandatory. Only then can a variety be sold within the EU. The varieties listed on the national variety list and/or having national plant breeders' rights are registered in the national variety register. Managing the national variety register is 1 of the tasks of the Board for plant varieties.
Frequently Asked Questions
Plant breeders' rights can be applied by the breeder (grower) of the plant variety. The discoverer (and developer) of a new variety can also apply for plant breeders' rights. A breeder may be, for example, a farmer, a researcher, a research institute or a privately owned breeding company. An authorised representative can also apply for plant breeders' rights on behalf of the breeder. Proxy forms are available for this purpose. If the applicant lives or has its office in a country outside the EU, an authorised representative is required within the Netherlands.
For admission to the catalogue, the authorised person must live within the EU.
Usually, technical DUS-examination is done by Naktuinbouw (especially for varieties of vegetable and ornamental crops). However, for some crops there are bilateral agreements with examination stations in other countries. These countries are authorised by the CPVO to perform the DUS tests for these crops. You can find the information which countries are authorised for which crops on the website of the CPVO.
In the case of European plant breeders' rights, the CPVO determines where DUS-examination is carried out. If you value examination by Naktuinbouw, you can first apply for national plant breeders' rights and have the report adopted by the CPVO.
If a breeder's right or listing application for a variety has previously been filed abroad, the Board for plant varieties (under certain conditions) bases its decision on the DUS-examination for the earlier application. The Board then take over the foreign report. The research must in any case have taken place in a UPOV-country with sufficient research expertise on the crop. The costs of taking over a report can be found in the fee list.
You can decide to stop the DUS-examination at any time. You will then notify teamsupport@rasraad.nl that you are withdrawing the application. If the examination has not yet started and no further examination costs have been made, the examination costs will be credited in completely.
Please note: If you decide to stop the CGO (Culture and Use Value Study) after 1 year, you must separately also stop the application for the DUS-examination (and withdraw the application for admission). Otherwise, the DUS-examination will continue automatically, and you will be invoiced for it as the applicant.
Sometimes it may be desirable to request postponement of DUS-examination, e.g. maize: the DUS- examination of maize is carried out in France and lasts only 1 year. This examination can be postponed until the results of the first year of CGO are known.
On the application form it can be ticked whether postponement is desired.
One becomes a maintainer by explicit or non-explicit designation by the Board for plant varieties. Without explicit designation, the applicant for plant breeders' rights and/or listing is the maintainer of the variety. In the European Common Catalogue you can find out who is the maintainer of a particular variety. The EU's plant variety database is a searchable version of this variety list. You can contact team support if you want to know who the maintainers are of a so-called x variety with multiple maintainers.
No. Each application should be made with an official application for listing at the Board for plant varieties. When varieties are applied directly to the implementing organisation for the CGO, the implementing organisation will point out to the applicant that an official application for listing of the variety in the Netherlands is necessary to be included in the CGO-examination.
New plant varieties have improved characteristics such as improved crop yields, higher quality and better resistance to plant diseases. These are important characteristics when it comes to higher productivity and quality of plant varieties. This also includes the fact that improved plant varieties are less environmentally damaging. Advances in agricultural production in different parts of the world are largely due to improved varieties of agricultural crops.
The variety can only be admitted if the variety:
- is distinctive
- is uniform
- is stable
- has an approved denomination
In addition, for varieties of agricultural crops, the CGO (VCU) must have been passed with a positive result.
The examination station Naktuinbouw collects a small amount of plant material from all candidate varieties (applications). In a number of cases, Naktuinbouw uses this DNA for DUS-examination.
The plant material (seeds) is only intended for the management of living reference collections, for example when an old plant in the collection has to be replaced by a new one. Here, comparison of DNA from the old plant with the new plant is a tool to confirm that the material is identical.
It is also sometimes possible to use DNA to pre-select the living plant material we are going to request as a comparator for an application. This is now routinely done in Phalaenopsis and potato. In this way, the DNA- profile is used to help have the right comparators in available for the DUS-study.
This approach has been accepted by UPOV
DNA has been accepted as a tool in DUS-examination. However, DNA has not been accepted as a basis for decisions on DUS. Only in vegetable crops, the determination of a small number of specific characteristics (certain resistances, male sterility) via DNA-analysis is now accepted.
Methods
In most cases, the so-called AFLP-technique is applied. More modern techniques such as SSR and SNPs are used to a limited extent.
Other uses
In other research, DNA can be useful in determining the genetic bandwidth of a crop. In these cases, DNA is used only under code, keeping the identity of the varieties used secret. If there is a situation where the variety identity has to become public, Naktuinbouw will never do so without the explicit prior consent of the owners of those varieties.
The policy on the use of DUS-material and DNA is explained exactly on the website of the Board for plant varieties.
Costs
The costs for the above activities are in most cases for Naktuinbouw. Only specific assignments from individual companies/persons are quoted separately to these clients, subject to the above.
Mutants
With the current state of DNA-techniques, it is quite possible to distinguish plants that originate from crosses. Distinguishing mutants based on DNA is not (yet) possible.
You can if the variety is New, Distinct, Uniform and Stable. In English, the last 3 requirements are called "DUS" (Distinct, Uniform and Stable).
Whether the variety meets the DUS criteria will have to be proven by technical examination. As for novelty: the variety may only have been sold for a short period before application. That short period is 1 year in the Netherlands or 4 years outside the Netherlands and 6 years outside the Netherlands for trees and vines.
The priority date of an application is determined by the date of receipt of the 1st application for plant variety rights in a UPOV-member state. This sets the priority date. You can submit another application in another UPOV-member state within 1 year after the priority date. For this subsequent application, the date of the 1st application (the priority date) will then be used as the application date.
The Board for plant varieties will send a confirmation of this to the applicant with, if necessary, instructions on submission (including the deadline) of the identity sample.
Successfully breeding and cultivating new plant varieties requires knowledge and skill. In addition, (large-scale) breeding requires significant investments in equipment such as greenhouses, growth chambers, laboratories and expert staff. For many plant species, it takes 10 to 15 years to develop a successful plant variety. Not all plant varieties are successful and even when the new varieties represent a clear improvement over existing varieties, a change in market sentiment may evaporate the opportunity for profit. Breeding new varieties is thus a risky business. This makes it necessary that the investment made in developing a new variety can be recouped. This investment can be recouped through a plant breeder's right for the new variety. In general, it can be said that plant breeders' rights should encourage breeders to produce more productive varieties of better quality. The benefit of developing improved varieties ultimately benefits (also) society as a whole.
At the same time, once a new variety is marketed, it can be easily reproduced. The original breeder is then deprived of the opportunity to derive a longer-term benefit from his newly developed variety and thus recoup his investment. Therefore, developing improved varieties is only profitable if there is a prospect of a "return on investment". It is therefore crucial that the variety can be protected with an effective plant breeders' right that encourages investment in the development of new plant varieties.
The 2005 Seeds and Planting Materials Act allows breeders to protect a newly developed variety with an intellectual property right: plant breeders' rights. The law lists the actions with the propagating material of the new variety - and in some cases with harvested material - that require the permission of the holder of the plant breeder's right. Plant variety rights mean that the permission of the breeder is required when the protected variety is propagated for commercial purposes.
A plant breeders' right can only be granted if the variety:
- is distinctive
- is uniform
- is stable
- has an approved denomination
- is new
Yes. The 2005 Seeds and Planting Materials Act is based on the UPOV Convention. This means that the Act includes a breeding exemption allowing the use of varieties protected by plant breeders' rights for the development of new plant varieties.
Therefore, no permission from the holder of the plant variety right is required if the protected variety is used for the development of another variety. Also, the variety (partly) developed with the protected variety may be traded without the permission of the holder of the plant variety right.
To protect the same variety in several countries, in principle, a plant breeders' right application must be applied in each country. The European Union makes it possible to apply for a breeders' right that provides for the protection of the variety in all 28 member states of the European Union.
The 2005 Seeds and Planting Materials Act - which is based on the UPOV Convention - only allows for the protection of new plant varieties. Plant breeders' rights cannot be applied for traditional varieties because these varieties have already been used and/or traded, and therefore no longer meet the requirement of "novelty". Therefore, plant breeders' rights do not obstruct the possibility (for growers/farmers) of using or trading in non-protected varieties.
Plant breeders' rights stand alone and have nothing to do with the marketing of propagation material. Dutch plant breeders' rights are based on the UPOV Convention and this determines that breeders' rights should be separate from legal measures regulating the production, control and marketing of propagating material. This does not mean that there cannot be any particular legal regulation of propagation material, it just means that this regulation is independent of plant breeders' rights.
No. A plant breeders' right can only be granted for a plant variety. It can be deduced from this that an individual characteristic (colour, resistance) or a cultivation technique cannot be protected by a plant breeders' right. Contents (e.g. oil, sweeteners) cannot be protected with a plant variety right either.
Yes, under certain conditions. The 'farmers' privilege' means that the producer of a crop intended for consumption or processing does not need the permission of the breeders' rights holder to use part of his crop as propagating material for his next crop. In the Netherlands, the 'farmers' privilege' exists for varieties of the main agricultural crops grain and potato in the Netherlands.
In this case, the farmer does owe a reasonable fee (lower than the usual licence fee) to the breeders' rights holder.
No
UPOV has a database (PLUTO-database) which basically lists all varieties of UPOV member countries that are protected with plant breeders' rights. However, the information listed in PLUTO is not the official publication of the member state concerned. Thus, the member state concerned may not have transmitted all varieties officially published at national level to the PLUTO-database. To obtain absolute certainty, it is therefore advisable to contact the national authorities of the country where the breed is registered, in addition to the PLUTO-database.
The granting authority (in the Netherlands, the Board for plant varieties) is responsible for granting the right. Subsequently, the holder of the plant variety right is himself responsible for monitoring and enforcing his right. The UPOV Convention obliges the relevant member state to provide an adequate system of legal rules by which the right holder can enforce his plant variety right.
National plant breeders' rights, like community plant breeders' rights, have a term of 25 years. For crops including bulbous plants and vines and trees, national and community plant variety rights are 30 years.
A new plant variety must be given a denomination. Before a variety denomination can be finally granted, the denomination is tested because it must meet some conditions. Here, the Board for plant varieties follows the CPVO's-policy laid down in its guidelines. For example, the name must be different from any other name of an already existing variety in the same denomination class. The name must be suitable to be used as a denomination and the name is not in conflict with already existing - older - rights such as, for example, brand names.
We know if a name is acceptable after an internal test via the CPVO-variety finder (read more about the internal naming test). This test takes about five working days. If the name is acceptable it will be published in the official Gazette to see if the name does not convey a conflict with an older right. For three months, those who believe they have an older right can file an objection of the denomination to the Board for plant varieties. All in all, the process of approving a name takes about four months.
UPOV is an international agreement organisation for the protection of cultivation products. The organisation is based in Geneva, Switzerland. UPOV was established in 1961 with the entry into force of the UPOV Convention. UPOV's mission is to provide an effective system of intellectual property protection for new plant varieties, with the aim of encouraging the development of new, improved plant varieties which development benefits society as a whole.
The UPOV Convention provides the legal basis for member states to encourage the development of new plant varieties by providing breeders with a plant breeders' right (an intellectual property right) for new plant varieties. The Netherlands is also a member of the UPOV Convention organisation and therefore has a system of plant breeders' rights based on the UPOV Convention. This statutory system is laid down in the 2005 Seeds and Planting Materials Act.
Fees
The Minister of Agriculture, Nature and Food Quality have approved the fees for the year 2024.
Costs plant breeders' right and/or listing
Applying for national plant breeders' rights and/or listing in the national variety register involves costs.