The Impact of Brexit on the Community Plant Variety Unitary Right
On February 1st, the UK has left the EU. This (has had or) will inevitably have an impact on unitary IP rights at EU level. Unitary IP rights such as the Community Plant Variety Right will no longer be valid after the transition period in the UK. What does this mean for holders of a Community Plant Variety Right (CPVR)?
If you are a breeder, a CPVR holder, a grower of plants or an IP aficionado, it might be obvious to you that IP rights are territorial in nature. A right that was territorially limited to the EU is no longer valid in the UK after Brexit. A breeder is de facto expropriated of her intellectual Property in the UK as of February 1st (plus transition period, on which there is much uncertainty) by the British Government. Her human right protected by the European Convention on Human Rights (ECHR) in Article 1 of the First Protocol to the Convention will no longer be provided to her. Friday 31st of January was the last day in heaven for all Unitary IPR holders; on 1 February, their right lost a limb.
Can right holders of CPVR re-apply to get a UK national right?
With Brexit, the unitary plant variety right is only valid in the EU 27MS. It is currently unclear how the UK will protect plant breeder’s rights. Will current CPVR holders who have an interest in being protected in the UK after Brexit, have to apply to a UK national right? Should this be the case, right holders will face the insurmountable issue of ‘novelty’, which is a requirement for plant variety protection.
For a plant variety to be registered, it needs to be new. This concept of ‘novelty’ in the CPVR regulation (art. 10) has a commercial nature: a variety is novel if it has not been commercially exploited before a period of 1 year within the EU and 4 to 6 years outside the EU. In other words, if there is commercialization within the EU for more than one year prior to the application date, novelty of the variety is destroyed. This will be the case for most CPVR right holders other than the most recent ones. The consequence of this is that the majority of CPVR rights cannot anymore be protected in the UK due to a novelty problem.
The UK could put a patch on that issue by providing a system of automatic recognition, or speedy conversion procedure at the end of the transition period. Should this not be achieved, current CPVR holders will lose protection in the UK and will not be able to apply for a national right. This may lead right holders to sue the UK for expropriation of IP rights, see the discussion here and here.
Some breeders may be able to benefit from Brexit. These are those who have commercialized their variety in the UK (and nowhere else in the EU) for a period of more than 1, but not more than 4 to 6 years. While before Brexit their novelty would have been destroyed by use in the UK, after February 1st (or at the end of the transition period) they will be able to obtain a CPVR relying on art.10 as the commercialization ‘outside of the EU’ will no longer be novelty destroying.
Impact on new applications
New applicants will need to file a CPVR application at the Community Plant Variety Office (CPVO) for protection in the EU 27MS, and a separate Plant Variety application at the UK national office. This has a series of implications.
The technical examination for determining whether the variety is eligible for protection (art. 6 CPVR regulation) requires an assessment as to whether the variety is Distinct, Uniform and Stable [DUS test], novel and correctly denominated. This assessment will have to be done by two different offices, however the outcome will most likely not differ. In fact, both the EU and the UK are Members of the International Union for the Protection of New Varieties of Plants (UPOV) 1991, which harmonizes this procedure. Nonetheless, this assessment will need to be carried out twice (in the UK and at the CPVO). This increments the workload and costs of registering a variety significantly.
The workload issue could easily be mitigated: as part of the cooperation among UPOV Members, the UK could simply rely on the technical report from the CPVO. Nonetheless, should the UK office not agree to such cooperation, they will need to arrange the infrastructure and hire experts to conduct these tests. This, however, would require a huge amount of resources, as carrying out those tests is incredibly complicated, change between taxon and can take up to 6 years per variety tested (see some CPVR technical protocols Here).
Another complication to consider is that all current non-EU based CPVR holders that appointed a UK representative as a substitute to an EU domicile (as it is required to have under art. 82 CPVR reg.) will need to revoke that proxy and appoint someone in the EU 27MS. Additionally, any UK-based breeder will also need to appoint a representative in the EU 27MS as their home address will no longer qualify.
The UK will need to make a decision quickly on how to address CPVR right holders rights; otherwise, they may face expropriation claims, a substantial workload and huge expenditures in carrying out technical examinations.
|Written by Virginia Debernardi, IPKM student 2019-2020 - More blogs on Law Blogs Maastricht|