Plant breeders' rights

The Plant Variety Protection protects the intellectual property rights to plant varieties. As a breeder or discoverer of a new variety can apply for plant variety protection, with effect for Germany on the basis of the Plant Variety Protection Act to the Federal Office of Plant Varieties. Important is now the Community plant variety right, the (France) across the EU granted by the Community Plant Variety Office in Angers. In the Plant Variety Protection is an independent intellectual property rights or intellectual monopoly right and not a patent. A patent can protect plant varieties and animal breeds, at least under German patent law, not be granted. The end of 2012 were 20 362 Community Plant Variety Rights in force. According to national plant variety protection existed on 1 March 2007 2,391 Property Rights, April 25, 2012 1,906; the number has been greatly reduced by the Community plant variety protection in recent years.

History

The plant variety right has evolved late in relation to patent law (but knew the Papal States as early as 1833 a scheme for new agricultural species), although the matter to which it relates, the plant breeding essence, is already old. Efforts to establish a modern breeders' rights in Germany go to the " father of modern plant breeding " Erwin Baur back, the director of the Kaiser Wilhelm Institute for Plant Breeding Research. The first draft of a seed and planting Act 1929 was submitted. The United States created in 1930 patenting a possibility (U.S. Plant Patent Act ). In France and the Netherlands quite early protection systems were created. 1938 Breeder organization ASSINSEL ( Association Internationale pour la Protection des Sélectionneurs of Obtentions VEGETALES became active, which is now combined with the Fédération Internationale du Commerce of Semences (FIS ).

A stand-alone plant variety protection was introduced in the Federal Republic of Germany in 1953 in the framework of the law on plant variety protection and seed crop of 27 June 1953 the first part first formed the legal basis for plant variety protection. With this law, private law, patent law, like property rights for plant varieties had been created for the first time in Germany. This was due to difficulties in patenting new varieties of botanical. At the same time, the Federal Office of Plant Varieties in Rethmar (today in Hanover with 12 test centers ) built. An international organization, the UPOV ( Union Internationale pour la Protection des obtentions végétales ), was built outside the system of the Paris Convention, but in close cooperation with this, in Geneva in 1961, the relevant treaty is the International Convention for the Protection of New Varieties of Plants.

It is characteristic of the international plant variety protection system that the protection principle only members of the Convention is available in the Convention countries; However, derogations will take reciprocity into account. The Convention required in the Federal Republic of Germany a new arrangement which is carried by the Law on the Protection of Plant Varieties ( Plant Variety Protection Act ) of 20 May in 1968 separation of the seed marketing legislation. The protection could not be made from the value for cultivation of the strain dependent, namely, the continued (with exceptions), however, is a prerequisite for the acceptance of varieties according to § 30 SaatG. The Plant Variety Protection Act ( SortSchG ) from December 11, 1985 into account in particular the revision of the Convention of 23 October 1978; it also includes a cleanup of the procedural rules, which was made ​​possible by an extensive reference to the administrative procedural law of the federal government. The Plant Variety Protection Act 1985 has been amended several times in the following years, especially by the First Act Amending the Plant Variety Protection Act ( 1 SortÄndG ) of 1992, the expansion of the plant variety protection of only certain conditions specified in a list of species, brought to now all plant varieties. The Plant Variety Protection Amendment Act 1997 ( SortÄndG 1997) considered the text of the Convention of 19 March 1991 and which now was Community legislation, which is based in turn on their substantive law on the amendment of the Convention. Council Regulation (EC ) No 2100/ 94 on Community plant variety rights ( GemSortV ) creates a Community- autonomous uniform Community-wide protection law. With the Community rules are effective for Germany two parallel protection systems; granting a Community plant variety protection for the same variety to the same owner means that for the duration of a Community plant variety rights from the national plant variety right may not be invoked ( § 10c SortSchG ); So the collision regime is far less than in patent law (Article II § 8 IntPatÜbkG ).

Plant variety protection outside Germany

The following list is incomplete. In many countries, there is still no legislation.

Protection capability variety

Model protection is required by § 1 a variety if it meets the following criteria of variety testing:

• Novelty
• Homogeneity
• Resistance
• Distinguishability
• Type designation

Article 6 GemSortV contains a content matching rules on Community plant variety rights. The first three conditions are apostrophized according to their English equivalents as " DUS " ( distinctness, uniformity, stability ). In addition, there must be a variety, ie a plant grouping within a single botanical taxon (ie a recognized as a systematic unit group ) of the lowest known rank act, the resulting by from a given genotype or combination of genotypes expression of the characteristics defined by the expression of at least one of these characteristics from any other plant grouping and differentiated in regard to its suitability for being propagated unchanged, can be considered as a unit (Article 5 § 2 GemSortV; § 2 No. 1a SortSchG ). Placing a given genotype or combination of genotypes of a particular ensures that the species concept is limited to natural populations uniform appearance. The requirement of different expression of at least one genotypic trait increases in the variety definition the requirement of distinctness (§ 3 SortSchG ) in principle, though not in the scope anticipated.

Distinguishability

A variety is distinguishable according to § 3 para 1 sentence 1 SortSchG and objectively matched to Article 7, Section 1 GemSortV when it is clearly differ in the expression of at least one characteristic from any other variety commonly known on the date of application. In this case, the national legislation as opposed to the force until 1997 that the "important" feature had in mind and thus give rise to erroneous interpretations in terms of a value check was, unlike the Community law and the international setting, after which the characteristic of a genotype or combination of genotypes result must, on the "relevant " feature from. When selecting the features the offices is discretionary. Unsuitable criteria (eg plant height at traffic lights, plants of Sutera ) have, as the Board of Appeal of the GSA has chosen to remain out of consideration. With the concept of clear distinction of the environmental variation of the statement expression is to be worn. The test is carried out mainly by " Scoring ", that is, estimation and classification of plant canopies. In some states even a particular country court has exclusive jurisdiction for all disputes plant variety protection.

Homogeneity

According to § 4 SortSchG the variety is uniform if, subject to the variation from the particular features of its propagation, in the expression of the relevant characteristics for distinctness is sufficiently uniform. Article 8 GemSortV agrees on this objective. Homogeneity means as opposed to heterogeneity in principle sufficient uniformity in the expression of the relevant characteristics for distinctness, that is, in appearance (phenotype ) or in the properties. Examples include: stem length on cereals; Root form in carrot; uniform beginning of flowering in cereals, uniform outer structure of the stalks. Genetic homogeneity is not required. Homogeneity is determined by growing trial that will drag in particular self-sterile plants over several growing seasons.

Resistance

According to § 5 SortSchG, essentially coincides with the Article 9 GemSortV, a variety is stable if it remains unchanged in the expression of the relevant characteristics for distinctness after each generation or, in the case of a replication cycle after each replication cycle. The resistance is constitutive for the existence of a variety. The conditions governing the distinctness must after each multiplication and each cycle of propagation correspond to the defined characteristics of the variety, that is, continue to be present. In generative propagation, they must therefore be heritable, transferable, if vegetatively propagated. A plant which is inserted a " terminator gene ", which disrupts the formation of the phenotypic characteristics after the first generation, is not resistant. It is questionable whether this is also true for the T- BELT technique in which the offspring remains viable, the plant but their new, caused by gene transfer property only expresses when the seed is activated by corresponding substances to it. In generative reproduction - particularly for cross-pollination - it sliding properties occur, which can be countered by selection for conservation.

Novelty

§ 6 SortSchG ( and according to Article 10 GemSortV ) determined that a variety is considered to be new if plants or plant parts with the consent of the claimant or his predecessor have not been or issued before the date of application only within certain periods for commercial purposes to others who can be in some cases up to six years. The requirement of novelty must not be equated with the patent law. Unlike patent law is based not on a Defining the state of the art. Affected is the question of the earlier release of the variety, not a comparison with other varieties. However, As is true in patent law, the principle of world first. Therefore, it is in principle not depend on whether a novelty harmful event in the country, has been met in a Convention country or else abroad. According to the German Federal Patent Court, the regulation is contrary to § 6 para 1 SortSchG, which are concerned for the national application on the territory of the Community, Article 6, Section 1 of the International Convention on the Protection of New Varieties of Plants, as amended in 1991 and it is also not covered by Article 6, paragraph 3 International Convention on the Protection of Pflanzenzüchtungenses Convention, if only because it lacks a common approach by the EU Member States. § 6 paragraph 1 SortSchG is so unlike the situation in other, also penalize the European Union belonging to member States such applicants desire the National Guard for a variety in Germany, and the variety in accordance with the provisions of the Convention during the four - or six-year Although grace period with respect to the state of registration of Germany abroad, but have given in the European Union territory; this Konventionswidrigkeit to the rules in force but does not render them useless. However, make to the site of action at different grace periods. Non novelty is the statutory duty of official bodies, particularly the payment as part of a variety. Privileged are also cases of wage production or preparation by third parties and intra-group traffic.

Rights of the holder

The rights of the holder of the plant variety protection are listed in the national law in Germany § 10 SortSchG, except as specified in § 10a and § 10b SortSchG. The corresponding provision is contained in Article 13 GemSortV. The scheme is consistent with the in § 9, § 10 and § 14 of the Patent Law comparable. The protection is not as comprehensive as the protection of property in the patent. The owner has an exclusive right of reproduction, from which a right of prohibition against third parties flows. According to national legislation which propagating material ( plants and plant parts ) is detected the protected variety. The right to prohibit covered production, marketing and storage.

Subject of plant variety protection is the "real " ( original ) variety. New varieties that make use of copyrighted material, depend on these species in the legal sense, they are in § 10 paragraph 3 and Article 13 paragraph SortSchG 5-8 GemSortV conditions regulated as "essentially derived varieties " ( Essentially derived variety, IT ) refers. The aim of the Plant Variety Protection will be strengthened and extended to plagiarism places that might differ only to a minor for the cultivation or sale value of the variety characteristic of the variety used as starting the protected variety. A variety is essentially derived when both of their breeding / discovery mainly the initial variety or another variety that is itself derived from the initial variety, was used as starting material, the derived variety is clearly distinguishable and, in the expression of the characteristics that result from the genotype or combination of genotypes of the initial variety, coincides with the initial variety in essence, this except for the differences arising from the derivative method used ( " genetic conformity ").

The German SortSchG distinguishes between intervention actions in respect of the propagating material and in relation to other plants (parts) and products which are not propagating material. Other hand, Article 13, paragraph 2 provides GemSortV generally on material ( variety constituents or harvested material ) from. Any production of propagating material falls under the plant variety protection, even those in which the propagating material produced is not intended for marketing. Also covers cases will be where the relevant properties have been available initially without the help of make use of them though but exploited targeted ( by wind flight, for example) by the user, however, the lack of intention to use the invention and an advantage to draw from it, be significant. Patent law takes account of the Patent Act now in § 9c, paragraph 3 statements ( " outcrossing "). The finished plant per se, their parts and products derived from it are not detected, and potted plants and cut flowers; Protection gaps (such as cut flowers or fruit) could especially with imports of consumer goods arising from the protection abroad is free, since the new rules in 1997 but countered by § 10 Section 1 No. 2 SortSchG which has its parallel in Article 13 paragraph 3 has GemSortV. The scope of a protected species is thus extended over the propagating material to also include other plants and plant parts and also to products directly obtained from it. The scheme extends the scope to products but only if the variety owner on the previous stage ( propagation material or other plants / plant parts) had no opportunity to exercise his right asserted; thus he is compelled to raise his claims at the earliest possible time, namely at the level of the propagating material, ( "cascade solution "). In nationally protected varieties namely there is no way to act against their production abroad.

When placing difficulties arise in " gekorenem " propagating material ( the classic case is the distribution of seed potatoes as potatoes ). The distributor must ensure the distribution of such material for the propagation be operated farmers appropriate measures to ensure that the rights of the holder are maintained on the sale or marketing stage if the customer using the supplied crop for propagation.

For word analogous realization of all features, there is always a variety protection violation. Genetic agreement, which can be assessed by means of DNA analysis, has been ( otherwise, the Higher Regional Court of Karlsruhe ) generally considered by the Oberlandesgericht Dusseldorf as appropriate to prove identity, but it will depend on the circumstances of the case is to scope similar to the equivalent area in the patent law field ( " tolerance range") recognized, are realized in the individual characteristics of the expression in the context to intolerable variations.

Is restricted the right of the plant variety protection through § 10a, paragraph 1 and Article 15 SortSchG GemSortV, where in particular the breeder's exemption ( "research exemption" ) is important. Not the consent of the holder is needed when using the protected variety for breeding a new variety. However, inbred lines for the creation of hybrids are subject to special protection. One limitation is also provided by the highly controversial " farmer's privilege " that allows farmers continue to till the 1900s free replica of cereals, potatoes, certain fodder plants and oil seed from their own crop ( "farm saved seed", " semences de ferme " ) insofar as it is not to small farmers, but only on payment of a " replica fee ". The dispute here is over in Germany for years between the seed Treuhand ( STV) and in particular of the working group were rural farming out with great violence and repeatedly get to the Supreme Court and the Court of Justice of the European Communities, and is not even now quite decayed. The Court of Justice of the European Union has decided on for a preliminary ruling from the Bundesgerichtshof, that is, even if only certain information or notification requirements are violated, as in the case of non- compliance with certain obligations by the replica end farmer or the dresser, the claim for damages given in full. Another preliminary ruling from the Oberlandesgericht Dusseldorf concerns questions of access of the request also the obligation to file information conditioners. Here, the Court of Justice of the European Union has decided, among other things, that the request for information of the holder on a dresser does not have to include the evidence for clues asserted therein.

The exhaustion regime in plant variety protection law should be material that has been put on protective holder or with his consent in traffic ( § 10b SortSchG; Article 16 GemSortV ); not covered by the exhaustion principle but the further propagation.

The illegality of the use by third parties is not applicable if this permission to use ( right to use compulsory exploitation right, § 12, § 12a SortSchG, Article 29 GemSortV ) stands to the side. Compulsory licenses on Community plant variety rights may only be granted by the Community Plant Variety Office.

Duration of plant variety protection

The Plant Variety Protection lasts according to § 13 SortSchG until the end of the twenty-fifth, in hops, potatoes, vine and tree species, until the end of the thirtieth following the grant calendar year. The Community legislation (Article 19 GemSortV ) does not extend to thirty years with hops and potato. For the maintenance of the national plant variety staggered and dependent on the species group annual fees are payable, which amount to 900 euro. The annual fee for a Community plant variety is a uniform 300 euros.

The protection ends at the national plant variety protection through withdrawal when the variety was not new or indistinguishable Grant of Protection, § 31 para 2 SortSchG, and by revocation upon failure of the homogeneity or stability, § 31 para 3 SortSchG. These termination events correspond to the objective of Article 21 PflZÜ. In addition there are some other grounds for revocation arising from the lack of participation in the process. The applicable law is thus based not on the patent law, but on the administrative procedural nomenclature. The Community legislation is significantly different from only in the nomenclature ( annulment and cancellation ).

Method

Plant variety protection shall be issued only on request. According to § 22 para 1 SortSchG ( as in patent law ) if the applicant in the application for variety protection or specify the original breeder or discoverer of the variety and to insure that his knowledge, other people are not involved in the breeding, or discovery of the variety. If the applicant is not, or not only the original breeder or discoverer, he has to specify how the variety has gotten to him. The Federal Office is not obliged to check this information. The applicant shall further specify the denomination, although it may initially specify a provisional designation. For the Community plant variety of the application may be made even in a responsible national authority ( Article 49 GemSortV ). The application is chargeable, the fee level is national and Community law differently. The application establishes a priority pursuant kind of a priority right (§ 23 SortSchG, Article 52 GemSortV ). Whether the indication of the denomination should be a priority for this effect is debatable. The negative view of Wuertenberger based on the fact that the registration of the denomination lack of substantive content zukomme assignment as the generic name zeitrangbegründende no effect.

The application is published (§ 24 SortSchG ), with the announcement starts, provisional protection in the form of a claim ( § 37 para 3 SortSchG, Article 95 GemSortV ), then anyone can object to the grant of the right objections that the allegations can be supported, the variety is not distinct, non-homogeneous, non -resistant or not new, the applicant was not entitled or the denomination was not registrable. The objections are justified and within ever to raise objection after due to different periods (§ 25 SortSchG ). Also Article 59 GemSortV (but not the objection of lack of authorization ) provides for the raising of objections before.

Then register testing takes place ( growing trial ). It is used to determine whether the variety is distinct, uniform and stable. It is designed as an official test. In the Proofing the Federal Office of Plant Varieties can also enlist results of the test for the value of a variety. Can therefore be quite apart from a growing trial, when there are already sufficient previous audit results from the impairment testing. The results of a test value can, however, get less relevant than those of an examination for distinctness, uniformity and stability. The Federal Office may be for testing other technically qualified bodies, even abroad, operate. For years there at about 100 plant species in close cooperation with neighboring states. Collaboration has resulted in mutual takeover of the test results obtained in another state and centralization of variety testing of certain plant species in only one of these states. The Community Plant Variety Office does not check itself, 2011, the Federal Office for fruit 30% and transmit 24 % of the contract audits of ornamental plants. Basis of the test register is the propagating material or seeds for the first time submitted by the applicant for the exam.

After testing, a test report is generated and sent to the applicant (§ 7 BSAVfV ). The granting of the (national) plant variety protection is to be adopted one of the occupied with a knowledgeable member of "small" inspection department favorable administrative dar. According to § 69 Administrative Procedure Act is too - to justify - unlike in patent law., It is, however, if no objections in accordance with § 25 SortSchG have been collected, a brief rationale to be sufficient that the conditions for the grant of plant variety protection are given. The rejection of the application will also be in the form of an administrative act. Also, they must be justified. After entering the incontestability of the grant are in the Plant Variety Protection, among others, the type and denomination, the specified expressions of events relevant to the distinctness in varieties whose plants are produced by crossing certain hereditary components, and the notification thereof shall be entered (§ 28 SortSchG ). The entries will be published in the Journal for variety beings.

Waiver of the plant variety protection is possible at a certain date in the future time.

The decisions of the inspection department of the Federal Plant Variety Office shall lie from the opposition, who should have a suspensory effect. The provisions of the Administrative Procedure Act of the Federal apply to the opposition proceedings on the formal administrative procedures. The decision of the Objections Committee the complaint to the Federal Patent Court is opened, in which the complaint Senate for plant variety protection matters ( 36th Senate ) is empowered to decide. From the complaint option is rarely exercised. The appeal panel shall decide according to the subject of the decision in either of two legally qualified and two technical judges or with three legally qualified judges, the latter after a change of denomination. So far, eleven decisions of this Senate were adopted. Against the decision of the Patent Court is open to the federal court in patent law as the legal complaint.

The GemSortV knows a complaints procedure to the ( the ) the Community Plant Variety Office formed Board of Appeal ( s). The complaint is also granted to those who have raised objections to the grant writing during the administrative procedure. They must be filed at the Community Plant Variety Office within two months of notification of the decision; Lodging at national offices is not this time limit. It must be justified in writing, within four months of notification of the contested decision. The complaint charges. The Board of Appeal decides in principle in three occupation. To date there are 41 choices of her. Complaint to the European Court of First Instance ( CFI) in Luxembourg is against the decisions of the Board of Appeal in accordance with Article 73 GemSortV permitted. The examination before the CFI is comparable and dauf directed to the appeal at a judicial review of the Board of Appeal decision, the procedure corresponds to that of the Community Trade Mark Regulation. The applicant must be individually concerned within the meaning of Article 68 GemSortV; a professional association, which was founded to protect and represent the interests of its members is only entitled to bring proceedings, when she herself is individualized as the union due to the impairment of their own interests. The court is not bound to a comprehensive examination, it may be rather limited to the control manifest error of assessment. Presented to the Court under Article 73, paragraph 3 GemSortV entitled amendment authority does not cause it would be empowered to substitute its own assessment for the assessment made by the Board of Appeal, or to judge a question on which the Board of Appeal and has not taken a position. Before the CFI is a lawyer. The instance of the final decision of the CFI can be appealed to the ECJ ruling at final instance.

Economic Importance

Plant variety protection is a property right that allows the breeder to his species to exploit economically, in order to obtain a remuneration of its ( intellectual and financial ) inputs. Plant variety protection is therefore frequently applied to small and medium-sized enterprises. The number of applications to the Community Plant Variety Office is continuously in years 2500-3184 (2011 ) per year. Of these, in 2012 49% of ornamental plants - by far the leader rose and chrysanthemum - and 27.3 % agricultural crops ( with distance in the first place before summer corn wheat and potato), in the horticultural varieties at the top of garden salad; 54 % of applications are from top 50 applicants. At the origin of the applicant, the Netherlands are well ahead of France, Germany and the USA at the top.

The International Plant Variety Protection (UPOV Convention), which was also implemented in the EU and in Germany in the law, opened the contracting states may restrict within reasonable limits and while respecting the legitimate interests of the breeder, the breeder's right in relation to any variety in order it to permit farmers to use for propagating, which they have obtained from cultivation in their own company, to use on their own farms for the purpose of propagation. This is good also and medium-sized growers. This helps the plant variety protection also contribute to progress in breeding and food security in less developed countries. The scope of this " farmer's privilege " was controversial, especially in Germany and France.

International interest groups on breeder page are

• International Seed Federation, 7, chemin du Reposoir, CH - 1280 Nyon (2002 combined with ASSINSEL ), and
• CIOPORA, Communauté Internationale des Plantes de Obteneurs Ornementales et Fruitières à Reproduction Asexuée, geese Markt 45, 20354 Hamburg.

Generally, the Plant Variety Protection raises ethical questions, since "intellectual property" is claimed to biological organisms.

In Austria, the Plant Variety Protection in the Federal Law on the Protection of Plant Varieties ( Plant Variety Protection Act ) 2001 ( Federal Law Gazette I No. 109) is regulated. Competent authority is the Institute for Seeds and varieties of the Institute of Food Security.

( SR 232.16 AS 1977 862 ) In Switzerland, the amended several times, Plant Variety Protection Act of 20 March 1975 applies. Competent authority is the Office of Plant Variety Protection of the Federal Office for Agriculture.