Plant Breeders' Rights and/or listing DUS-VCU

Any plant variety that meets the conditions for distinctness, uniformity and stability. The variety meets novelty requirements and has a correct denomination. Novelty means that the variety has not been marketed after the permitted terms.

Mutants are plant varieties that have developed from a different variety through mutation. Such varieties can be protected by Plant Breeders’ Rights under the same conditions. They may also be covered by the definition of an ‘Essentially Derived Variety’ (EDV). In that case the finder of the mutant must make agreements concerning its use with the holder of the Plant Breeders’ Rights of the original variety.

In all cases, where the Plant Breeders’ Rights researcher determines the distinctness by using the regulations of the Dutch Board for Plant Varieties (Rvp) or the Community Plant Variety Office (CPVO). Those regulations are derived from the UPOV guidelines. UPOV stands for the International Union for the Protection of New Varieties of Plants. They established the Plant Breeders’ Rights Convention. UPOV has more than 70 member countries.

After receiving the application forms and payment of the registration and testing fees, the seed or plant material (‘identity material’) is requested from the applicant. At one of the institutes (e.g., Naktuinbouw), the identity material is sown or planted.

In one to two growing seasons, the 'identity material' of the application is tested to see if it meets the requirements of distinctness, uniformity and stability. Also, the proposed variety name is checked. Finally, the conditions of novelty are checked to see if it meets.

If the DUS test lasts several years, an interim report will be sent each year. Once the DUS test is completed, the result is recorded in a final report. If the candidate variety meets the conditions, the positive final report including a variety description will be sent. These documents are the basis for granting Plant Breeders' Rights. If the candidate variety does not meet the conditions, a negative final report will be provided.

Varieties granted with Dutch Plant Breeders' Rights are included in the Dutch Variety Register (NRR) of the Board for Plant Varieties (Rvp). Varieties granted with European Plant Breeders' Rights are added to the Variety Register of the CPVO.

Analysing and recording DNA material or DNA patterns is not part of the DUS test, except for potato. However, plant material can be frozen for later DNA determination under certain conditions. In case of alleged infringements, analysing and comparing DNA can, however, provide (supporting) evidence. This option is increasingly used.

That is possible, but only under several strict conditions.

In case of an alleged infringement, you may consider contacting the person or company suspected of infringement directly. Therefore, you need to know who the suspected infringer is. At least 90% of alleged infringements are resolved or settled by mutual agreement. At this stage, both parties can ask Naktuinbouw, preferably jointly, for an investigation.

This procedure is not a basis for defence in a subsequent lawsuit. The most potent remedy is to go to court through a specialised law firm in case of alleged infringement. Then, the court may order a formal seizure of material from both parties and/or removal of material from circulation. Naktuinbouw may be requested to perform comparative planting and/or DNA testing on behalf of the court. The court makes the decision in a judgement.

For Plant Breeders' Rights, this is easy to check by consulting the public registers for Plant Breeders' Rights. For Dutch Plant Breeders’ Rights, please see the Dutch Variety Register (NRR) through www.raadvoorplantenrassen.nl/en/. For European Plant Breeders’ Rights, please see the database of CPVO through www.cpvo.europa.eu.

For a patent, it is more complicated: 80 million patents can be seen in ESPACENET. Please see www.epo.org/searching/free/espacenet.html. However, in the database it is not possible to see in which plant varieties patents have been processed. The European Seed Association (ESA) has a database of voluntarily submitted information on varieties with patent elements. See also question: Does an ESA patent database exist?

Plant Breeders’ Rights is valid for a maximum of 25 years from the day that Plant Breeders’ Rights was granted. For some crops (in the Netherlands e.g., trees, potatoes and bulbs), the validity is 30 years.

A patent is valid for a maximum of 20 years from the day that the patent application was submitted. In special cases, the validity may be extended to 25 years.

The answer is no. The question of whether a variety is patented is not as easy to answer as the question of whether a variety is protected by Plant Breeders' Rights. See also question: How do you know if something is protected by Plant Breeders’ Rights or a patent?

The answer is yes. The database is called PINTO, see here. It contains varieties covered by the scope of protection of a patent. The number of varieties included depends on the voluntary cooperation of companies. It is limited to Europe.

The main difference is the presence of a full breeding exemption in Plant Breeders' Rights and the absence or restriction of a breeding exemption in patent law. Furthermore, the testing preceding the granting differs substantially. Finally, the regulations of patent law differ quite significantly from country to country. This is less true for Plant Breeders' Rights.

Dutch Plant Breeders’ Rights
The application fee is one-off and is € 539. The testing fee is between € 2,000 to € 4,600 on a yearly basis, depending on the type of crop concerned. One year of testing will usually suffice for ornamental crops and two years for vegetables and agricultural crops. No maintenance fees must be paid for Dutch Plant Breeders’ Rights anymore.

European Plant Breeders’ Rights
The application fee is € 450 (online) and € 800 (written). The testing fee is between € 1,900 and € 3,900 on a yearly basis, depending on the type of crop concerned. Again, the number of testing years is usually one for ornamental crops and two for vegetables and agricultural crops. In addition, maintenance fees are due of € 380 during each year of the term of the Plant Breeders’ Rights. The cost of a patent agent and possible court fees depend on several factors. But these costs are lower than patent fees.

Patent
A patent entails costs for application and maintenance. The fee for application is one-off.

If you fill in the application by yourself, the costs for Dutch patent consist of:

• the application fee of € 80 (online) or € 120 (written); and
• the mandatory research, prior art, of € 100 (national) or € 794 (international). Your patent is valid for a maximum of 20 years.

The cost of expert help from patent agents can add up. In fact, patent agents charge an hourly rate like that of lawyers. The total costs for a Dutch application are between € 5,000 and € 10,000. In addition, there are also maintenance fees ranging from € 40 to € 1,400 a year. If you wish to dispute the maintenance of a patent in court, this will initially cost you between € 20,000 and € 70,000.

Variety descriptions of the applications for Plant Breeders’ Rights and listing in the Netherlands belong to the Board for Plant Varieties.

The variety descriptions can be found on their website by clicking on 'Dutch Variety Register'. Older variety descriptions can be supplied by Naktuinbouw or the CPVO upon request.

Would you like to perform a breeder’s co-trial, please indicate this on the application form. You can choose to assess the trial by yourself or have it assessed by the Naktuinbouw inspector. If the breeder’s co-trial is performed abroad, you must always assess the trial by yourself. You assess the distinctness and uniformity and provide supporting evidence in the form of photographs.

Various fees apply to a breeder's co-trial. The fees can be found here.

The fee of an American Plant Breeders' Rights - technical testing can be found here.

If you would like to have two DUS tests in one year, we will charge the (Dutch) testing fees per test at the start of the test. You can find the testing fees on the website of the Board for Plant Varieties.

You can apply for two tests in one year by indicating this on the application form. The application form can be found here.

If ÚKZÚZ or ÚKSÚP performs the second test, you must take into account the submission dates in the Czech Republic (CZ) or Slovak Republic (SK) respectively. Naktuinbouw must be able to send the material to them before these submission dates. You can find the submission dates for the Czech Republic (CZ) and Slovak Republic (SK) on the website of the CPVO.

A request for American Plant Breeders' Rights - technical testing should be submitted by e-mail.

After receiving the request, the request is usually first discussed with the crop responsible and then feedback is provided.