Protect your new plant variety

Plant breeders’ rights protect new plant varieties.

A plant variety is a group of plants defined by certain characteristics, which can be distinguished from any other group of plants, and which can be propagated unchanged.

It is important not to confuse a plant variety with a plant species. For example, ‘apple tree’ is a plant species, while ‘Jonagold’ is a plant variety within this plant species. So protection is only possible for the ‘Jonagold’.

Once the variety is protected, this results in exclusive rights for cultivating and marketing the specific variety. This means that only you can carry out the following activities related to your protected variety:

• Breeding, propagation or conditioning for propagation;
• Offering for sale, selling or otherwise commercialising your protected variety;
• Importing or exporting your protected variety;
• Stocking for any of the purposes mentioned above.

Others need your permission to do so.

If you have bred or discovered and developed, a new plant variety, you may apply for plant breeders’ rights. However, if this process was performed by more than one person, the rights belong jointly to the involved persons, unless otherwise agreed.

If the breeder obtained the new plant variety as part of an employment contract, the plant breeders’ rights return to the employer, unless otherwise agreed.

To obtain Dutch plant breeders’ rights, the intended plant variety must fulfil the following requirements:

• Novelty: at the date of filing, the variety must not have been commercialised for more than one year within the territory of the Netherlands, or for more than four years (six years for trees and vines) outside the territory of the Netherlands.

• Distinctness: the variety must be distinguishable from any other known plant variety based on its characteristics resulting from a certain (combination of) genotype(s).

• Uniformity: the variety must be sufficiently uniform in its relevant characteristics used for describing the plant variety.

• Stability: characteristics used for describing the plant variety should remain unchanged after repeated propagation cycles.

Furthermore, you must choose a suitable denomination for your new plant variety in order to avoid confusion with the name of an existing variety or other older rights like trademarks. This denomination is a generic name and third parties are obliged to use it.

• People do not need authorisation for private use and non-commercial purposes.
  • For example: it is allowed to buy a plant protected by plant breeders’ rights, to multiply that plant and to end up with 5 plants in your own garden. However, it is not allowed to donate nor sell one of those plants to your neighbour, because this constitutes non-private use and commercialisation respectively.

• No authorisation is needed for experimental purposes only or for the development/discovery of new varieties.

• ‘Farmer’s privilege’ means that for some crops (potatoes and wheat) in the Netherlands farmers are allowed to reuse part of their harvest to work their fields the following season, if they pay a fair amount to the holder of the plant breeders’ rights.

The filing fee in the Netherlands for plant breeders’ rights is a fixed amount of about EUR 430.

Technical examination of the plant variety will generally cost between EUR 1900 and 3800, depending on the plant species. The duration of the examination varies from one year for most ornamental species and two years for agricultural and vegetable species to six years for certain fruit tree varieties. It is important to know that technical examinations are generally a one-time cost and the technical reports and variety descriptions (DUS reports) may be reused for other applications of the same variety in another country.

In total, the minimum cost of an application in the Netherlands, including a new technical examination, will be around EUR 1900, while the maximum cost will be around EUR 3800 per testing year. Beside this an applicant has to pay an application fee of around EUR 430. These costs can be sharply reduced by using a DUS report from another application (from another country).

This protection lasts twenty-five years, except for trees, vines and potatoes for which the protection lasts thirty years.

This depends on your intended purpose. Do you want to market your plant variety locally (in the Netherlands)? Or do you want to commercialise it throughout Europe, or even beyond?

You can apply for Dutch plant breeders’ rights by submitting a plant breeders’ rights application form and a technical questionnaire specific to your plant variety, and by paying the filing fee to the Dutch Board for plant varieties. All information can be found on the following website: Raad voor plantenrassen.

You can also apply for a Community Plant Variety Right in a similar way, if you wish to obtain protection throughout the entire European Union, or in certain countries of the European Union. More information can be found at: https://cpvo.europa.eu/en.

Finally, a third option is to apply via the national procedures of each country, inside and outside the European Union, where you wish to protect your variety. More information can be found at: https://www.upov.int/portal/index.html.en.

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