Borrini - Patent protection of new plant varieties: a need for Italian agriculture, a challenge for the scientific world

Stefano Borrini
Società Italiana Brevetti, Piazza di Pietra 39, 00186 Roma

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Key words: plant breeders rights, Community Plant Variety Office

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Abstract

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The article contains an overview of the Community system of protection of new plant varieties. This system allows to obtain a title of protection with uniform effect on all the territory of the European Union through a centralized system of filing, examination, grant and maintenance. The Community Plant Variety system protects novel, distinct, homogeneous and stable plant varieties. While a definition of homogeneity and stability may be relatively easy to understand, because they are biological concept, novelty and distinctness deserve a deeper definition. Novelty is lost only after a marketing activity (in broad sense) of the variety and/or of its propagating material. However, to be novelty destroying this activity must have taken place by or with the consent of the breeder of the variety, for the purposes of exploitation of the variety and within a definite period, namely earlier than one year before the filing date within the territory of the Community or earlier than four years (six for wooden species) before the filing date outside the territory of the Community. To satisfy the distinctness requirement, the variety must be clearly distinguishable by reference to the expression of the characteristics resulting from a particular genotype (or combination of genotypes), from any other variety whose existence is a matter of common knowledge at the date of the application. The procedure consists of a filing stage, when the applicant declares its intention of obtaining a plant variety right, files an application with a technical description of the variety, proposes a varietal denomination and pays an appropriate fee. Then the Community Office arranges for the field trials (also subject to specific fees) to ascertain that distinctness, homogeneity and stability have been satisfied. In case of positive outcome of the trials a title of protection is granted. After the grant, and in order to maintain validity of the title of protection, annual fees must be paid. A Community plant variety right confers to the applicant the exclusive rights of production or reproduction, conditioning for the purpose of propagation, offering for sale and sale, exportation, importation and stocking the propagating material of the variety. The applicant has the same rights also in respect of the harvested material substantially if obtained through the unauthorized use of the variety. The Community Regulation defines the socalled “essentially derived variety”, obtainable for instance by genetic engineering or detected as a consequence of spontaneous or induced mutations. The breeder of the essentially derived variety may apply for protection (inter alia if the essentially derived variety is distinct from the senior variety) but he is subject to the authorization of the breeder of the senior variety in order to market and reproduce the essentially derived variety.

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