UK Plant Variety Rights branch off from the EU

[{“id”:”5ax9lwb93z49″,”elType”:”container”,”settings”:{“flex_direction”:”column”},”elements”:[{“id”:”5820cba”,”elType”:”container”,”settings”:[],”elements”:[{“id”:”_5ax9lwb93zda”,”elType”:”widget”,”settings”:{“editor”:”As the long-awaited Unified Patent Court finally opens its doors, it is easy to overlook developments in less prominent IP rights which may prove to be highly significant for specific industries. Although seldom the subject of litigation, Plant Variety Rights (PVRs) provide protection for, and promote investment in the research and development of, new varieties of plants. This is of critical importance for human wellbeing as well as numerous economically vital industries. Importantly, unlike the patent system, PVRs explicitly allow for third parties to use protected varieties as a starting point for their own breeding of new varieties, a concept that is broader and more flexible than the analogous “research exemptions\” to patent infringement.

For many years, PVR registration in the UK had been administered by the EU’s Community Plant Variety Office (CPVO), which provides a unitary PVR registration procedure for all EU Member States. However, as a consequence of Brexit, responsibility for maintaining the register of PVRs in the UK has now passed to the UK Department for Environment, Food and Rural Affairs and the UK Animal and Plant Health Agency. Under the terms of the Withdrawal Agreement between the UK and EU, existing Community PVRs (CPVRs) in force in the UK have been converted into corresponding national UK “Retained EU plant variety rights\” (Retained CPVRs or rCPVRs). However, this process is not entirely automatic – owners of these derived national UK rights must now register an address for service (and designated agent) within the UK by 1 January 2024, otherwise there is a risk that their PVR may be removed from the UK national register.

Although this re-registration process is essentially a formality for PVR owners, it does serve to highlight the newly autonomous nature of these Retained CPVRs in the UK, which will have important implications for rightholders in future. Except in cases where challenges to the validity of the parent CPVRs were already pending before the CPVO at the time of Brexit (in which case, a revocation decision by the CPVO would in most cases also result in the revocation of the corresponding UK right), rCPVRs are now completely independent of their EU counterparts. This has a number of important implications for the potential enforcement of such rights. Most obviously, even a final decision on the validity of an EU CPVR would not have any effect on the corresponding UK rCPVR, or vice versa.

However, the new situation will also have more subtle impacts on infringement claims – a pending validity challenge before the CPVO would no longer provide as compelling a reason for a lengthy stay of PVR infringement proceedings in the UK, since the outcome of the validity challenge would no longer directly affect the validity of the UK right. Similarly, the complex question of whether importation of “harvested material\” (including fruits and vegetables) obtained from a protected variety to the UK may be blocked on the basis that the rightholder had failed to exercise a “reasonable opportunity\” to assert its rights elsewhere, could be analysed very differently now that the PVRs being asserted in the UK have a separate territorial scope to the corresponding EU rights. Even issues such as the CJEU’s controversial interpretation of the scope of “unauthorised use\” of protected plant varieties in C-176/18 are potentially open to being revisited in the UK, as the higher UK courts are now able to depart from retained CJEU case law using the same tests traditionally applied to their own precedents.

What these developments will mean for the prospects of litigating PVR infringement or validity in the UK remains unclear. However, in principle, the new situation allows for decisions on PVRs to be obtained more quickly in the UK than was previously possible, which may make litigation a more attractive prospect for UK PVR holders.