Plant breeders, including nurseries, cultivators, and agricultural developers, regularly create new plant varieties that can carry substantial commercial value. Protecting these innovations as intellectual property is essential for maximizing their potential.
The Plant Variety Protection Act (PVPA) (7 U.S.C. §§ 2321 et seq.) provides legal rights to breeders of new plant varieties. Administered by the Plant Variety Protection Office (PVPO), the PVPA grants a unique form of intellectual property protection for plants that are sexually reproduced (by seed), asexually reproduced, or tuber-propagated.
What Is Plant Variety Protection?
Plant Variety Protection (PVP) grants exclusive commercial rights to breeders who develop varieties that are:
- New
- Distinct
- Uniform
- Stable
- Appropriately named
Once the PVPO confirms that a plant meets these criteria, it may issue a Plant Variety Protection Certificate that provides the breeder with exclusive rights for up to 20 years (25 years for certain types of plants such as trees and vines). These rights allow the breeder to control how the variety is used, sold, or reproduced by others.
Criteria for Plant Variety Protection
To qualify for protection under the PVPA, a plant variety must meet all of the following conditions:
- Distinct: Clearly different from all other publicly known plant varieties. This includes varieties that are in commercial use or described in public literature at the time the application is filed.
- Uniform: Consistent in characteristics, with limited and predictable variation that is commercially acceptable.
- Stable: Maintains its essential traits over repeated propagation or seed generations.
- New: Not previously sold or made available to the public prior to the eligible application window.
- Named: Given a unique and non-misleading name that distinguishes it from other varieties.
Application Requirements
To obtain a Plant Variety Protection Certificate, breeders must submit a detailed application to the PVPO that includes:
- General applicant information, including name of the owner, name of the variety, and the date of first sale, if one exists.
- Evidence that the variety satisfies the five criteria of plant variety protection – (1) the variety must be new, (2) Distinct, (3) Uniform, (4) Stable, and (5) appropriately named.
- Origin and breeding history of the plant variety
- Statement of distinctiveness, distinguishing the new variety from all known varieties by stating specific differentiating characteristics
- Objective varietal descriptive information, including observable qualitative and quantitative characteristics of the new variety
After filing an application with the Plant Variety Protection Office, the applicant receives provisional protection. This protects the candidate’s plant variety and grants exclusive rights to the applicant, from the date when the plant variety protection application is filed until the date when rights are formally granted.
Why Plant Breeders Should Pursue PVP
Whether you are developing new cultivars, hybrids, or seed lines, PVP helps safeguard your intellectual property and commercial interests.
For plant breeders, the PVPA offers a powerful tool for protecting and extracting value from newly bred varietals and cultivars. The exclusive rights conferred by a Plant Variety Protection Certificate would enable a business to control how its new varietal or cultivar would be used and sold. This protection could lead to increased profits, competitive advantages, and a strengthened market position. Businesses could exploit these intellectual property rights commercially through exercising an exclusive right to sell seeds of its protected varietals/cultivars or licensing the rights to others.
Work With a Plant Variety Protection Attorney
If you are interested in learning more, or if you need help securing plant variety protections, please contact the experienced intellectual property attorneys at Rogoway Law Group. We can guide you through the entire application process and ensure your rights are fully protected.
