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Plant Varieties Act 1997

Type Public General Act

Publication 1997-11-27

State In force

Department Statute Law Database

Source legislation.gov.uk

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Part I — Plant Varieties

Preliminary

Plant breeders' rights

1

(1) Rights, to be known as plant breeders’ rights, may be granted in accordance with this Part of this Act.

(2) Plant breeders’ rights may subsist in varieties of all plant genera and species.

(3) For the purposes of this Act, “variety” means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of plant breeders’ rights (which are laid down in section 4 below) are met, can be—

(a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

(b) distinguished from any other plant grouping by the expression of at least one of those characteristics, and

The Plant Variety Rights Office

2

(1) The office known as the Plant Variety Rights Office shall continue in being for the purposes of this Part of this Act under the immediate control of an officer appointed by the Ministers and known as the Controller of Plant Variety Rights (“the Controller”).

(2) Schedule 1 to this Act (which makes further provision about the Plant Variety Rights Office) shall have effect.

Grant of plant breeders’ rights

Grant on application

3

(1) Subject to this Part of this Act, plant breeders’ rights shall be granted to an applicant by the Controller on being satisfied that the conditions laid down in section 4 below are met.

(2) The Controller may by notice require an applicant for the grant of plant breeders’ rights to provide him, within such time as may be specified in the notice, with such information, documents, plant or other material, facilities or test or trial results relevant to the carrying out of his function under subsection (1) above as may be so specified.

(3) If an applicant fails to comply with a notice under subsection (2) above within the period specified in the notice, the Controller may refuse the application.

Conditions for the grant of rights

4

(1) The conditions which must be met in relation to an application for the grant of plant breeders’ rights are—

(a) that the variety to which the application relates is a qualifying variety, and

(b) that the person by whom the application is made is the person entitled to the grant of plant breeders’ rights in respect of the variety to which it relates.

(2) For the purposes of subsection (1) above, a variety is a qualifying variety if it is—

(a) distinct,

(b) uniform,

(d) new;

and Part I of Schedule 2 to this Act has effect for the purpose of determining whether these criteria are met.

(3) Subject to subsections (4) and (5) below, the person entitled to the grant of plant breeders’ rights in respect of a variety is the person who breeds it, or discovers and develops it, or his successor in title.

(4) If a person breeds a variety, or discovers and develops it, in the course of his employment, then, subject to agreement to the contrary, his employer, or his employer’s successor in title, is the person entitled to the grant of plant breeders’ rights in respect of it.

(5) Part II of Schedule 2 to this Act shall have effect as respects priorities between two or more persons who have independently bred, or discovered and developed, a variety.

(6) In this section and Schedule 2 to this Act, references to the discovery of a variety are to the discovery of a variety, whether growing in the wild or occurring as a genetic variant, whether artificially induced or not.

Rights in relation to application period

5

(1) If an application for plant breeders’ rights is granted, the holder of the rights shall be entitled to reasonable compensation for anything done during the application period which, if done after the grant of the rights, would constitute an infringement of them.

(2) In subsection (1) above, “application period”, in relation to a grant of plant breeders’ rights, means the period—

(a) beginning with the day on which details of the application for the grant of the rights are published in the gazette, and

(b) ending with the grant of the rights.

Scope of plant breeders’ rights

Protected variety

6

(1) Plant breeders’ rights shall have effect to entitle the holder to prevent anyone doing any of the following acts as respects the propagating material of the protected variety without his authority, namely—

(a) production or reproduction (multiplication),

(b) conditioning for the purpose of propagation,

(d) selling or other marketing,

(e) exporting,

(f) importing,

(g) stocking for any of the purposes mentioned in paragraphs (a) to (f) above, and

(h) any other act prescribed for the purposes of this provision.

(2) The holder of plant breeders’ rights may give authority for the purposes of subsection (1) above with or without conditions or limitations.

(3) The rights conferred on the holder of plant breeders’ rights by subsections (1) and (2) above shall also apply as respects harvested material obtained through the unauthorised use of propagating material of the protected variety, unless he has had a reasonable opportunity before the harvested material is obtained to exercise his rights in relation to the unauthorised use of the propagating material.

(4) In the case of a variety of a prescribed description, the rights conferred on the holder of plant breeders’ rights by subsections (1) and (2) above shall also apply as respects any product which—

(a) is made directly from harvested material in relation to which subsection (3) above applies, and

(b) is of a prescribed description,

unless subsection (5) below applies.

(5) This subsection applies if, before the product was made, any act mentioned in subsection (1) above was done as respects the harvested material from which the product was made and either—

(a) the act was done with the authority of the holder of the plant breeders’ rights, or

(b) the holder of those rights had a reasonable opportunity to exercise them in relation to the doing of the act.

(6) In this section—

(a) “prescribed” means prescribed by regulations made by the Ministers, and

(b) references to harvested material include entire plants and parts of plants.

Dependent varieties

7

(1) The holder of plant breeders’ rights shall have, in relation to any variety which is dependent on the protected variety, the same rights as he has under section 6 above in relation to the protected variety.

(2) For the purposes of this section, one variety is dependent on another if—

(a) its nature is such that repeated production of the variety is not possible without repeated use of the other variety, or

(b) it is essentially derived from the other variety and the other variety is not itself essentially derived from a third variety.

(3) For the purposes of subsection (2) above, a variety shall be deemed to be essentially derived from another variety (“the initial variety”) if—

(a) it is predominantly derived from—

(i) the initial variety, or

(ii) a variety that is itself predominantly derived from the initial variety,

while retaining the expression of the essential characteristics resulting from the genotype or combination of genotypes of the initial variety,

(b) it is clearly distinguishable from the initial variety by one or more characteristics which are capable of a precise description, and

(c) except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

(4) For the purposes of subsection (3) above, derivation may, for example, be by—

(a) the selection of—

(i) a natural or induced mutant,

(ii) a somaclonal variant, or

(iii) a variant individual from plants of the initial variety,

(b) backcrossing, or

(5) Subsection (1) above shall not apply where the existence of the dependent variety was common knowledge immediately before the coming into force of this Act.

Exceptions

General exceptions

8

Plant breeders’ rights shall not extend to any act done—

(a) for private and non-commercial purposes,

(b) for experimental purposes, or

Farm saved seed

9

(1) Subject to subsection (2) below, plant breeders’ rights shall not extend to the use by a farmer for propagating purposes in the field, on his own holding, of the product of the harvest which he has obtained by planting on his own holding propagating material of—

(a) the protected variety, or

(b) a variety which is essentially derived from the protected variety.

(2) Subsection (1) above only applies if the material is of a variety which is of a species or group specified for the purposes of this subsection by order made by the Ministers.

(3) If a farmer’s use of material is excepted from plant breeders’ rights by subsection (1) above, he shall, at the time of the use, become liable (subject to any contractual agreement entered into between the farmer and the holder of the plant breeders' rights) to pay the holder of the rights equitable remuneration, which shall be sensibly lower than the amount charged for the production of propagating material of the same variety in the same area with the holder’s authority.

(4) Subsection (3) above shall not apply to a farmer who is a small farmer for the purposes of this section.

(5) Subsection (3) above shall not apply if—

(a) before the day on which this Part of this Act comes into force, the farmer has, in relation to the variety concerned, engaged in use of the kind to which subsection (1) above applies, and

(b) no remuneration was payable in respect of that use.

(6) The Ministers may by order provide that, on such date after 30th June 2001 as may be specified in the order, subsection (5) above shall cease to have effect in relation to a variety so specified, or varieties of a species or group so specified.

(7) The Ministers may by regulations—

(a) make provision enabling—

(i) holders of plant breeders’ rights to require farmers or seed processors, and

(ii) farmers or seed processors to require holders of plant breeders’ rights,

to supply such information as may be specified in the regulations, being information the supply of which the Ministers consider necessary for the purposes of this section,

(b) make provision restricting the circumstances in which the product of a harvest of a variety which is subject to plant breeders’ rights may be moved, for the purpose of being processed for planting, from the holding on which it was obtained, and

(c) make provision for the purpose of enabling the Ministers to monitor the operation of any provision of this section or regulations under this section.

(8) Regulations under subsection (7)(a) above may include provision imposing obligations of confidence in relation to information supplied by virtue of the regulations.

(9) Subsections (3) and (4) of section 7 above shall apply for the purposes of subsection (1)(b) above as they apply for the purposes of subsection (2) of that section.

(10) In this section, “small farmer” means—

(a) in a case where the material referred to in subsection (3) is used for propagating potatoes, a farmer who grows potatoes in an area no bigger than that which would be needed to produce 185 tonnes of potatoes per harvest, and

(b) in a case where the material referred to in subsection (3) is used for propagating any other varieties specified for the purpose of subsection (1), a farmer who grows those varieties in an area no bigger than that which would be needed to produce 92 tonnes of cereals per harvest.

(11) In this section, references to a farmer’s own holding are to any land which he actually exploits for plant growing, whether as his property or otherwise managed under his own responsibility and on his own account.

(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exhaustion of rights

10

(1) Plant breeders’ rights shall not extend to any act concerning material of a variety if the material—

(a) has been sold or otherwise marketed in the United Kingdom by, or with the consent of, the holder of the rights, or

(b) is derived from material which has been so sold or otherwise marketed.

(2) Subsection (1) above shall not apply where the act involves—

(a) further propagation of the variety, or

(b) the export of material which enables propagation of the variety to a non-qualifying country, otherwise than for the purposes of final consumption.

(3) For the purposes of subsection (2)(b) above, a non-qualifying country is one which does not provide for the protection of varieties of the genus or species to which the variety belongs.

(4) In this section, “material”, in relation to a variety, means—

(a) any kind of propagating material of the variety,

(b) harvested material of the variety, including entire plants and parts of plants, and

Duration and transmission of plant breeders’ rights

Duration

11

(1) A grant of plant breeders’ rights shall have effect—

(a) in the case of potatoes, trees and vines, for 30 years from the date of the grant, and

(b) in other cases, for 25 years from that date.

(2) The Ministers may by regulations provide that, in relation to varieties of a species or group specified in the regulations, subsection (1) above shall have effect with the substitution in paragraph (a) or (b), as the case may be, of such longer period, not exceeding—

(a) in the case of paragraph (a), 35 years, and

(b) in the case of paragraph (b), 30 years,

as may be so specified.

(3) The period for which a grant of plant breeders’ rights has effect shall not be affected by the fact it becomes impossible to invoke the rights—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) because of suspension under section 23 below.

Transmission

12

Plant breeders’ rights shall be assignable like other kinds of proprietary rights, but in any case rights under section 6 above and rights under section 7 above may not be assigned separately.

Remedies for infringement

13

(1) Plant breeders’ rights shall be actionable at the suit of the holder of the rights.

(2) In any proceedings for the infringement of plant breeders’ rights, all such relief by way of damages, injunction, interdict, account or otherwise shall be available as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

Presumptions in proceedings relating to harvested material

14

(1) This section applies to any proceedings for the infringement of plant breeders’ rights as respects harvested material.

(2) If, in any proceedings to which this section applies, the holder of the plant breeders’ rights proves, in relation to any of the material to which the proceedings relate—

(a) that it has been the subject of an information notice given to the defendant by or on behalf of the holder, and

(b) that the defendant has not, within the prescribed time after the service of the notice, supplied the holder with the information about it requested in the notice,

then, as regards the material in relation to which the holder proves that to be the case, the presumptions mentioned in subsection (3) below shall apply, unless the contrary is proved or the defendant shows that he had a reasonable excuse for not supplying the information.

(3) The presumptions are—

(a) that the material was obtained through unauthorised use of propagating material, and

(b) that the holder did not have a reasonable opportunity before the material was obtained to exercise his rights in relation to the unauthorised use of the propagating material.

(4) The reference in subsection (2) above to an information notice is to a notice which—

(a) is in the prescribed form,

(b) specifies the material to which it relates,

(d) contains such other particulars as may be prescribed.

(5) In this section, “prescribed” means prescribed by regulations made by the Ministers.

Presumptions in proceedings relating to products made from harvested material

15

(1) This section applies to any proceedings for the infringement of plant breeders’ rights as respects any product made directly from harvested material.

(2) If, in any proceedings to which this section applies, the holder of the plant breeders’ rights proves, in relation to any product to which the proceedings relate—

(a) that it has been the subject of an information notice given to the defendant by or on behalf of the holder, and

(b) that the defendant has not, within the prescribed time after the service of the notice, supplied the holder with the information about it requested in the notice,

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