Knowledge & News

What impact would a 'no-deal' Brexit have on Community Plant Variety Rights (CPVR)?

15 October 2018

On Friday, the UK government issued guidance on the effect of a no-deal Brexit on Community Plant Variety Rights (CPVR) and seed and propagating material.

Of note, the guidance sets out that in the event of a no-deal scenario:

  • Granted CPVRs held by UK businesses in March 2019 will continue to have effect in the remaining 27 EU member states, and will be automatically recognised and protected under the UK Plant Varieties Act. The guidance stresses that no action will be required by CPVR owners to convert this right.
  • Any pending CPVR applications that are not granted by 29 March 2019 will not be extended to cover the UK. As such, any breeders wanting coverage in the UK will need to make a separate application for a UK PVR to be examined under UK legislation. The UK application must be filed with the Plant Variety Rights Office (PVRO) and will be subject to the usual criteria – that is, the variety must be new and must also pass the DUS (distinct, uniform and stable) testing, which will be carried out by NIAB. It is unclear how the PVRO will deal with existing CPVR applications where the variety has already been sold post CPVR application but before application for a UK PVR. It would make sense for the application date of the CPVR to be treated as the UK PVR application to avoid any potential novelty issues, yet the guidance makes no comment on this point. As such, it may be wise for rights holders to start reviewing their current filing strategy and consider concurrently filing for CPVR and UK PVRs going forward.
  • Post March 2019, to obtain the same geographical coverage as pre-Brexit two separate applications will be required – a CPVR and a UK PVR application. While this carries an obvious cost implication for breeders, the guidance sets out that APHA are reviewing their processes with the aim of reducing their fees. One suggestion appears to be to accept DUS results from EU member states. On the flip side, it seems that the Community Plant Varieties Office will not accept the results of UK DUS testing.
  • Breeders wishing to market their new variety in both the EU and the UK will need to separately apply for listing in the EU Common Catalogue and the UK National Listing. In terms of certification, the guidance discusses that the UK would apply for its certification processes to be considered as a “third country recognised by the EU as equivalent for seed certification”.
  • For varieties that are however already registered on the EU Common Catalogue but are not on the UK National Listing, the UK government will automatically add these to the UK list for a period of two years after a no-deal Brexit.
While this notice sets out the bare bones of the implications of a no-deal Brexit on plant breeders rights, the finer details have yet to be considered. If, on the other hand, agreement is reached between the UK and the EU regarding the terms of the UK’s withdrawal from the EU, then CPVRs will continue to operate in the UK just as they do know, at least until the end of the transitional period that is proposed to operate until 31 December 2020.
 
For further information on how Brexit might impact IP in the UK, see our Brexit pages.

Authors

Andrea Williams

Andrea Williams Senior Associate Cambridge (UK) Chartered (UK) and European Patent Attorney

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