Plant variety protection

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

In Germany, plant variety protection refers to a legally secured right to property in plant varieties in the Plant Variety Protection Act or in Regulation (EC) No. 2100/94 of the Council on Community Plant Variety Protection (GemSortV) . This can be requested by the original breeder or discoverer of a variety ( Section 15 SortSchG). The application must be submitted to the Bundessortenamt and processed. After approval, the applicant is then referred to as the “owner of the variety protection” ( Section 16 SortSchG); he can transfer his rights to others ( § 11 SortSchG).

Effect of Plant Variety Protection

The material (so the seeds , scions or cuttings ) of the protected variety, either alone generated by the holders to the protected variety, processed, marketed, imported or exported ( § 10 SortSchG). This principle also applies if a variety cannot be clearly distinguished from the protected variety, or the production of which requires the continued use of the protected variety (e.g. hybrid varieties), and also if a variety is essentially of the protected variety (parent variety) has been derived. The export of material of a protected variety for the purpose of propagation of the variety to a country that does not protect varieties of the species to which the protected variety belongs is also not permitted.

Limitations on the Effect of Plant Variety Protection

All of the above restrictions do not apply to private, non-commercial purposes and also not for experimental purposes ( Section 10a SortSchG). This allows for example the production of seeds of a protected variety for use in one's own garden. Furthermore, the plant variety protection does not apply if the owner of the plant variety protection has placed the material on the market himself or has consented to the placing on the market by others. However, this does not entitle you to breed seeds of a protected variety yourself after purchasing it and then sell it on. Even when a protected variety is exported to a country that does not protect varieties such as the protected variety for the purpose of cultivating the variety (i.e. not for breeding or further breeding), there is no protection of varieties ( Section 10b SortSchG).

Plant variety protection lasts 25 years, for hops , potatoes , vines and tree species 30 years from the approval of the protection ( § 13 SortSchG).

Plant variety protection costs

For the maintenance of the national plant variety protection, staggered annual fees depending on the species group are to be paid, which amount to up to 900 euros. The annual fee for community plant variety protection is a uniform EUR 300.

history

Plant variety protection law developed late in relation to patent law (although the Papal States had a regulation for new agricultural species as early as 1833), although the matter to which it relates, plant breeding, is already old. Efforts to achieve a modern breeder's right in Germany go back to the "father of modern plant breeding" Erwin Baur , director of the Kaiser Wilhelm Institute for Breeding Research . The first draft of a law on seeds and plants was presented in 1929. The United States created a patenting facility in 1930 ( US Plant Patent Act ). In France and the Netherlands , too , protection systems were created quite early on. In 1938 the ASSINSEL ( Association Internationale des Sélectionneurs pour la Protection des Obtentions Végétales ) became active, which is now united with the Fédération Internationale du Commerce des Semences (FIS).

An independent plant variety protection was introduced in the Federal Republic of Germany in 1953 within the framework of the law on plant variety protection and seeds of cultivated plants of June 27, 1953, the first part of which initially formed the legal basis for plant variety protection. With this law, a private right , similar to patent law, was created for the first time in Germany for plant varieties. The reason for this were difficulties in patenting new botanical varieties. At the same time, the Bundessortenamt was set up in Rethmar (today in Hanover with 12 testing centers). An international organization, the UPOV ( Union Internationale pour la Protection des obtentions végétales ), was set up outside the system of the Paris Union Convention , but in close cooperation with it, in 1961 in Geneva ; the relevant convention is the International Convention for the Protection of New Varieties of Plants of 2 December 1961 ( Federal Law Gazette 1968 II p. 428 , amended by the additional file of November 10, 1972 Federal Law Gazette 1976 II p. 437 ). The contracting states of this convention form an association for the protection of new varieties of plants.

The agreement grants the breeder of a new plant variety exploitation rights in this association (Art. 1, Paragraph 1 of the Convention). The breeder's consent is required for production, sale or commercial distribution (Art. 5, Paragraph 1 of the Convention). Breeders can be both natural and legal persons . In principle, they only enjoy protection if they have their place of residence or registered office in a contracting state. Members of the member states with a seat outside the association also enjoy the same rights, provided that they comply with the obligations that may be imposed on them in order to enable the new varieties they have bred to be examined and their reproduction to be monitored (Art. 3 Para. 2 of the Convention). The Convention required a new regulation in the Federal Republic of Germany, which was implemented by the Law on the Protection of Plant Varieties (Plant Variety Protection Law) of May 20, 1968, with the separation of the seed traffic law. The protection could no longer be made dependent on the national cultural value of the variety, which is, however, still (with exceptions) a prerequisite for the variety approval according to § 30 SaatG . The Plant Variety Protection Act (SortSchG) of December 11, 1985 takes into account in particular the revision of the Convention of October 23, 1978; It also contains a revision of the procedural regulations, which was made possible by a far-reaching reference to the federal administrative procedural law. The 1985 Plant Variety Protection Act was subsequently changed several times, in particular by the first law amending the Plant Variety Protection Act (1st SortÄndG) from 1992, which expanded plant variety protection from only certain specified in a species directory to all plant varieties. The Plant Variety Protection Amendment Act 1997 (SortÄndG 1997) takes into account the new version of the Convention of March 19, 1991 as well as the regulation under Community law that has now been implemented, the substantive law of which is based on the new version of the Convention. Regulation (EC) No. 2100/94 of the Council on Community Plant Variety Protection (GemSortV) creates a Community-wide, uniform, Community-wide property right. With the regulation under Community law, two parallel protection systems are effective for Germany; the granting of community plant variety rights for the same variety to the same owner means that rights from national plant variety rights cannot be asserted for the duration of the community plant variety rights ( Section 10c SortSchG); the conflict of law rules therefore go less far than in patent law (Art. II § 8 IntPatÜbkG).

Protectable variety

According to § 1 SortSchG, a variety is eligible for protection if it meets the following criteria:

Art. 6 GemSortV contains a regulation with the same content for community plant variety protection. The first three requirements are apostrophized after their English equivalents as "DUS" ( distinctness, uniformity, stability ). In addition, it must be a variety, i. H. a plant ensemble within a single botanical taxon (i.e. a group recognized as a systematic unit) of the lowest known rank, which is defined by the expression of the characteristics resulting from a certain genotype or a certain combination of genotypes, at least by the expression of one of these characteristics can be distinguished from any other plant whole and, in view of their suitability to be propagated unchanged, can be regarded as a unit (Art. 5 Para. 2 GemSortV; § 2 No. 1a SortSchG). The reference to a specific genotype or a specific combination of genotypes ensures that the term “variety” is limited to the whole of a uniform natural appearance. The requirement of the different expression of at least one genotypic characteristic anticipates the requirement of distinctness ( § 3 SortSchG) in principle, even if not in scope, in the variety definition . Some legal systems (e.g. Japan, New Zealand) also permit plant variety protection outside of the plant kingdom, for example with certain types of fungus.

Distinctness

A variety is according to § 3 , para. 1, sentence 1 SortSchG and the objective matching Art. 7, para. 1 GemSortV distinguishable if they can be clearly distinguished on the date of application commonly known variety in the expression of at least one feature from each other. The national regulation distinguishes it from the one that was valid until 1997, which had the “important” characteristic in mind and thus gave rise to misinterpretation in the sense of a value test, unlike the Community and international stipulations according to which the characteristic is derived from a genotype or a combination of genotypes must result, depends on the "relevant" characteristic. When selecting the characteristics, the offices are given a discretion. Unsuitable criteria (e.g. plant height in traffic light plants of the species Sutera), as the Board of Appeal of the GSA decided, should not be considered. The concept of clear distinguishability is intended to take account of the environmental variation in expression. The check is mainly carried out by means of "rating", i. H. Assessment and classification of plant stocks. In some federal states, a specific regional court is even exclusively responsible for all plant variety protection disputes.

homogeneity

According to § 4 SortSchG, the variety is homogeneous if, apart from deviations due to the special features of its propagation, it is sufficiently uniform in the expression of the characteristics that are decisive for distinctness. Art. 8 GemSortV agrees with this factually. In contrast to heterogeneity, homogeneity basically means sufficient uniformity in the expression of the characteristics that are decisive for distinctness, i.e. H. in appearance ( phenotype ) or in properties. Examples include: length of stalk in cereals, root shape in carrots, uniform beginning of flowering in cereals, uniform external structure of the stalks. Genetic homogeneity is not required. Homogeneity is determined by cultivation testing, which, especially in the case of cross-pollinators, will extend over several vegetation periods.

resistance

According to § 5 SortSchG, with which Art. 9 GemSortV objectively corresponds, a variety is permanent if it remains unchanged in the expression of the characteristics decisive for the distinctness after each propagation or, in the case of a propagation cycle , after each propagation cycle. Persistence is constitutive for the existence of a variety. The characteristics that are decisive for distinctness must correspond to the characteristics determined for the variety after each propagation or each propagation cycle, i.e. H. still exist. In the case of generative reproduction , they must therefore be heritable, in the case of vegetative reproduction they must be transferable. A plant that has a " terminator gene " inserted into it, which interrupts the development of phenotypic traits after the first generation, is not persistent. It is questionable whether this also applies to the T- GURT technology, in which the offspring remains viable, but the plant only expresses its new property brought about by gene transfer if the seed is activated by appropriate substances. In the case of generative reproduction - especially in the case of cross-fertilization - the properties can slip, which can be countered by maintenance breeding.

novelty

§ 6 SortSchG (and accordingly Art. 10 GemSortV; in accordance with § 3 para. 5 Austrian Plant Variety Protection Act and Art. 8b Swiss Plant Variety Protection Act) stipulates that a variety is considered new if plants or parts of plants with the consent of the person entitled or his legal predecessor before On the day of the application, or only within certain periods of time for commercial purposes, which in certain cases can be up to six years. The requirement of novelty must not be equated with that in patent law. In contrast to patent law, it is not based on attribution to the state of the art. Only the question of the earlier sale of the variety is affected, not that of a comparison with other varieties. As in patent law, however, the principle of world novelty applies. Therefore, it does not fundamentally depend on whether a novelty-damaging fact has been fulfilled in Germany, in a member state or elsewhere abroad. In the opinion of the German Federal Patent Court , the regulation in Section 6 (1) SortSchG, which is based on the territory of the European Community for national applications, contradicts Article 6 (1) of the International Convention on the Protection of New Varieties of Plants, version 1991 and it is not covered by Art. 6 Para. 3 of the International Convention for the Protection of New Varieties of Plants, if only because there is no joint approach by the EU member states. In contrast to the regulations in other member states alsobelonging tothe European Union ,Section 6 (1) SortSchG is intended todiscriminate against those applicants who seek national protection for a variety in Germany, and the variety according to the provisions of the Convention during the four- or six-year-olds Grace period in relation to the registration state Germany abroad, but in the territory of the European Union; However, this violation of the Convention is not intended to render the current regulation ineffective. The Federal Court of Justice, on the other hand, has based on the fact that, in the absence of a uniform regulation over a shorter period within the Union, Section 6 (1) SortSchG is to be interpreted as meaning that a variety is considered new if plants or plant components with the consent of the person entitled or his legal predecessor before the application date not or only within a period of one year in Germany or four years abroad for commercial purposes to others. However, different grace periods are linked to the location of the act. The legally stipulated delivery to official bodies, in particular delivery within the scope of the variety approval, is not detrimental to novelty. Cases of wage generation or processing by third parties as well as intra-group transactions are also privileged.

Procedure

Plant variety protection is only granted upon application . According to Section 22 (1) of the SortSchG (as in patent law), the applicant must indicate the breeder (s) of origin or discoverer of the variety in the variety protection application and assure that, to the best of their knowledge, other people are not involved in the breeding or discovery of the variety. If the applicant is not, or not only, the breeder of origin or discoverer, he must indicate how he obtained the variety. The Bundessortenamt is not obliged to check this information. The applicant must also indicate the denomination of the variety, whereby he can first provide a provisional denomination. For Community plant variety protection, the application can also be submitted to a commissioned national authority (Art. 49 GemSortV). The application is subject to a fee, although the level of fees differs nationally and under Community law. The application establishes a time priority in the manner of a priority right ( § 23 SortSchG, Art. 52 GemSortV). It is disputed whether the specification of the variety denomination has priority effect for this. The negative view of Würtenberger is based on the fact that the registration of the variety denomination as the generic name does not have any seniority-justifying effect due to the lack of material attribution.

The application is published ( § 24 SortSchG), with the publication of the preliminary protection begins in the form of a claim for compensation ( § 37 Paragraph 3 SortSchG, Art. 95 GemSortV), after which anyone can raise objections to the granting of plant variety protection based on the allegations can be supported that the variety is not distinguishable, not homogeneous, not stable or not new, the applicant is not entitled or the variety denomination is not registrable. The objections must be justified and raised within different deadlines depending on the reason for the objection ( § 25 SortSchG). Art. 59 GemSortV also provides for the raising of objections (but not the objection of insufficient authorization).

The register test (cultivation test) then takes place. It is used to determine whether the variety is distinguishable, homogeneous and consistent. It is designed as an official examination. When checking the register, the Bundessortenamt can also use the results of the value check for the approval of varieties. A growing test can therefore be completely refrained from if sufficient earlier test results from the value test are available. However, the results of a value test may be less relevant than those of a test for distinctness, homogeneity and durability. The Bundessortenamt can use other technically suitable bodies for the examination, also abroad. For years there has been close cooperation with neighboring countries on around 100 plant species. The result of the cooperation is mutual adoption of the test results obtained in another country and centralization of the variety test for certain plant species in only one of these countries. The Community Plant Variety Office does not check itself. In 2011 the Federal Plant Variety Office was given 30% of the commissioned tests for fruit and 24% for ornamental plants. The basis of the register check is the propagation material or seed submitted for the first time by the applicant for the check.

After the examination, an examination report is created and sent to the applicant (§ 7 BSAVfV). The granting of (national) plant variety protection is a favorable administrative act to be issued by the "small" testing department, which is staffed with a competent member . According to § 69 VwVfG , this too must be justified - unlike in patent law. However, if no objections have been raised according to § 25 SortSchG, a brief justification will suffice to the effect that the requirements for the granting of plant variety protection are met. The rejection of the application also takes the form of an administrative act. It must also be justified. After the grant has become incontestable, the species and the variety denomination, the established characteristics of the characteristics that are decisive for distinctness, among other things, the reference to varieties whose plants are produced by crossing certain hereditary components are entered in the plant variety protection role ( § 28 SortSchG) . The entries will be made known in the sheet for species system.

It is possible to waive plant variety protection at a certain point in time in the future.

The decisions of the testing department of the Bundessortenamt can be challenged with an objection, which in principle has suspensive effect . The provisions of the Federal Administrative Procedure Act on formal administrative procedures apply to the objection procedure . The appeal against the decisions of the Appeal Committee has been opened to the Federal Patent Court , to which the Appeals Board for Plant Variety Protection Matters (36th Senate) is called to make a decision. The possibility of complaint is rarely used. Depending on the subject of the contested decision, the Board of Appeal decides either with two legally qualified and two technical judges or with three legally qualified judges, the latter if the variety denomination changes. So far, eleven decisions have been made by this Senate. As in patent law, an appeal on points of law has been filed with the Federal Court of Justice against the decision of the patent court.

The GemSortV has an appeal procedure to the Board of Appeal (s) established at the Community Plant Variety Office. The complaint is also open to those who have raised objections to the grant in writing during the administrative procedure. It must be submitted in writing to the Community Plant Variety Office within two months of the decision being served; Filing with national offices does not meet the deadline. It must be justified in writing within four months of service of the contested decision. The complaint is chargeable. The Board of Appeal generally decides in a three-person cast. So far 41 decisions have been made by her. Action to the European Court of First Instance (EGC) in Luxembourg against the decisions of the Board of Appeal is admissible in accordance with Art. 73 GemSortV. The examination before the CFI is comparable to that of an appeal on a point of law and is aimed at checking the legality of the decision of the Board of Appeal; the procedure corresponds to that under the Community Trademark Regulation . The plaintiff must be individually concerned within the meaning of Art. 68 GemSortV; A professional association that was founded to defend and represent the interests of its members is only entitled to sue if it is individualized as an association because of the impairment of its own interests. The court is not obliged to carry out a comprehensive review; it can limit itself to checking for obvious errors of assessment. The court's right to amend pursuant to Art. 73 (3) GemSortV does not mean that it is empowered to substitute its own assessment for the assessment made by the Board of Appeal or to assess a question on which the Board of Appeal is still has not commented. A lawyer is required before the EGC. The decision of the ECJ finalizing the instance can be challenged at the final decision-making ECJ.

Plant variety rights holder rights

The rights of the owner from the plant variety protection are listed in the national law of Germany in § 10 SortSchG, exceptions regulate § 10a and § 10b SortSchG. The corresponding regulation can be found in Art. 13 GemSortV. The regulation is comparable to the one in § 9 , § 10 and § 14 PatG . The protection is not as comprehensive as the property protection of a patent. The owner has an exclusive right to reproduce , from which a right to prohibit third parties flows. According to national law, propagation material (plants and parts of plants) of the protected variety is included. The right of prohibition covers production, placing on the market and storage.

The subject of plant variety protection is the “real” (original) variety. New varieties that make use of protected material are dependent on them in terms of variety law; they are classified as “essentially derived varieties” under the conditions set out in Section 10 (3) SortSchG and Article 13 (5) to (8) GemSortV derived variety, EDV). This is intended to strengthen plant variety protection and also to extend it to include plagiarism varieties that differ from the protected variety used as the starting variety in only one characteristic that is insignificant for the cultivation or sales value of the variety. A variety is essentially derived if, cumulatively, the parent variety or another variety, which is itself derived from the parent variety, was used as the starting material for its breeding or discovery, the derived variety is clearly distinguishable and it is in the expression of the characteristics, which originate from the genotype or a combination of genotypes of the parent variety essentially corresponds to the parent variety, apart from differences resulting from the derivation method used (“genetic conformity”).

The German SortSchG differentiates between acts of intervention in relation to propagation material and in relation to other plant (parts) and products that are not propagation material. On the other hand, Art. 13 Para. 2 GemSortV generally refers to material (components of varieties or harvested goods). Any production of propagating material is covered by plant variety protection, including those where the propagating material produced is not intended to be placed on the market. Cases are also covered in which the relevant properties were initially available without the user having to do anything (e.g. due to wind flying), but are used in a targeted manner by the user, but the lack of intention to use the invention can be an advantage to draw from it can be considerable. Patent law now takes this into account in Section 9c (3) of the Patent Act (“cross-outs”). The finished plant itself, its parts and products obtained from it are not included, such as potted plants and cut flowers; Gaps in protection, which could arise in particular when importing consumer goods (such as cut flowers or fruit) from foreign countries that are not protected, have been countered since the new regulation in 1997 by Section 10 Paragraph 1 No. 2 SortSchG, which has its parallel in Article 13 Paragraph 3 GemSortV has. The scope of protection for a protected variety is thus extended beyond the propagation material to other plants and parts of plants and also to products directly obtained from them. However, the regulation only extends the scope of protection to products if the owner of the variety did not have the opportunity to assert his right at the previous stage (propagation material or other plants / plant parts); this prompts him to raise his claims at the earliest possible point in time, namely at the stage of the propagation material (“cascade solution”). In the case of nationally protected varieties, there is no possibility of taking action against their production abroad.

When placing on the market difficulties arise with "licensed" propagation material (the classic case is the sale of seed potatoes as table potatoes). When distributing such material to farmers engaged in propagation, the distributor must take suitable measures to ensure that the rights of the owner of the variety protection are preserved at the commercial level if the buyers use the harvested material for propagation.

If all characteristics are literally implemented, there is always an infringement of plant variety rights. Genetic agreement, which can be assessed by means of DNA analysis, has been viewed by the Düsseldorf Higher Regional Court (unlike the Karlsruhe Higher Regional Court ) as a fundamentally suitable means of proving identity, but it will depend on the circumstances of the case. Similar to the equivalence area in patent law, an area ("tolerance area") is recognized for the scope of protection in which individual characteristics are implemented within the framework of tolerable variations. The right from plant variety protection is restricted by Section 10a (1) SortSchG and Art. 15 GemSortV, in which the breeder's reservation (“research exemption”) is particularly important. The use of the protected variety to breed a new variety does not require the consent of the owner of the variety protection. However, inbred lines to create hybrids are subject to special protection. There is also a restriction due to the heavily controversial “ farmer's privilege ”, which continues to allow farmers to freely reproduce grain, potatoes, certain forage crops and oilseeds from their own harvest until the 1900s (“farm saved seed”, “semences de ferme”) , but for non-small farmers only against payment of a "replica fee". The dispute about this has been fierce in Germany for years between the Saatguttreuhand (STV) and in particular the Working Group on Rural Agriculture and has reached the BGH and the Court of Justice of the European Communities several times and has not yet completely subsided. In response to a request for a preliminary ruling from the Federal Court of Justice, the Court of Justice of the European Union ruled that even if only certain information or disclosure obligations are violated, such as non-compliance with certain obligations by the farmer or the processor, the claim for damages is given in full. Another request for a preliminary ruling from the Düsseldorf Higher Regional Court concerns questions about the access to the request for information from the processor, who is also obliged to provide information. Here, the Court of Justice of the European Union ruled, among other things, that the request for information from the owner of the variety protection to a processor does not have to contain the evidence for the clues made therein.

The exhaustion regulation in plant variety protection law concerns material that has been placed on the market by the owner of the protection or with his consent ( § 10b SortSchG; Art. 16 GemSortV); In principle, however, the renewed increase is not covered by exhaustion.

The illegality of use by third parties does not apply if they are accompanied by a usage permit (usage right, compulsory usage right, § 12 , § 12a SortSchG, Art. 29 GemSortV). Compulsory licenses for community plant variety rights can only be issued by the Community Plant Variety Office.

Plant variety protection outside of Germany

For plant variety protection, there is an international system administered by UPOV in the International Convention for the Protection of New Varieties of Plants, to which 71 states and the European Union currently belong. As a breeder or discoverer of a new variety , one can apply for plant variety protection with effect for Germany on the basis of the Plant Variety Protection Act at the Federal Plant Variety Office, in Austria at the Institute for Plant Varieties of the Institute for Food Security, in Switzerland at the Office for Plant Variety Protection of the Federal Office for Agriculture. More important for Germany and Austria is now the Community Plant Variety Protection, which is granted EU-wide by the Community Plant Variety Office in Angers ( France ) and which has marginalized the national protection systems within the European Union. Plant variety protection is an independent intellectual property right or intellectual monopoly right and not a patent . A patent cannot be granted for the protection of plant varieties and animal breeds, at least under German patent law, but would offer more extensive protection than plant variety protection. At the end of 2014, 22,554 community plant variety rights were in force. According to national plant variety protection, there were 2,391 property rights in Germany on March 1, 2007, and 1,764 on April 1, 2014; the number has fallen sharply in recent years due to Community plant variety protection.

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

Country law adopted changed Remarks
Austria Plant Variety Protection Act 2001 0–2 registrations annually (2004–2013). Community plant variety protection also includes Austria.
Switzerland Plant Variety Protection Act 03/20/1975 multiple 69–77 registrations annually (2009–2013). Community plant variety protection does not include Switzerland.
Albania Law No. 8880 on Plant Breeders' Rights 2002
Australia Plant Breeder's Rights Act 1994 2002 Registrations 2013: 330
Belarus Plant Variety Protection Act 1995 Registrations 2013: 57
Belgium Wet tot Bescherming van Kweekproducten; Loi sur la protection des obtentions végétales 05/20/1975 multiple
Brazil Law No. 9,456 04/28/1997 Registrations 2013: 326
Bulgaria Law on the Protection of New Plant Varieties and Animal Breeds 04/10/1996
People's Republic of China Ordinance on the Protection of New Plant Varieties 1997 Registrations 2013: 1,510
Denmark Consolidated Plant Variety Protection Act 02/05/1996
Estonia Plant Variety Rights Act 07/01/1998
Finland Plant Breeder's Rights Act No. 789/1992 1992 1999
France Art L 623-1 - 623-35, R 623-1 - 623-58 CPI
Ireland Plant Varieties (Proprietary Rights) Act, 1980, No. 24 01/22/1981 multiple
Israel Plant Breeder's Rights Act 5733-1973 multiple Registrations 2013: 46
Italy Legislative Decree 455 11/03/1998
Japan Seeds and Seedlings Law (Act No. 115) 10/02/1947 Registrations 2013: 1,054
Canada Plant Breeders' Rights Act, SC 1990, c. 20th 1990 1994 Registrations 2013: 322
Kenya Seeds and Plant Varieties Act 1972 Registrations 2013: 95
Colombia Decree No. 533 03/08/1994 Registrations 2013: 93
Republic of Korea Seed Industry Law 1995 1995 2001 Registrations 2013: 599
Croatia Plant Variety Protection Act 05.12.1997 06/16/2000
Latvia Plant Variety Protection Act 2002
Liechtenstein no national legislation Community plant variety protection does not include Liechtenstein.
Lithuania Plant Variety Protection Act 11/22/2001
Luxembourg no national legislation The Community plant variety right also includes Luxembourg.
Macedonia (former Yugoslav Republic) Law on seeds, seedlings and propagating material, recognition, approval and protection of varieties May 2000
Mexico Registrations 2013: 173
Moldova Plant Variety Protection Act (Act 915/1996) 1996 2000 Registrations 2013: 43
Netherlands Zaaizaad- en Plantgoedwet 06.10.1966 multiple
Norway Lov om planteforedlerrett 03/12/1993 Registration 2013: 30
Poland Plant Variety Protection Act 2003
Portugal Decreto-Lei n. ° 213/90 06/28/1990
Romania Law No. 255 12/30/1998
Russian Federation Law on the Protection of Selection Achievements 08/06/1993 Registrations 2013: 555
Sweden Växtförädlarrättslag (SFS 1997: 306) 1997 2004
Serbia Law on the Protection of Agricultural and Forest Crops 06/30/2000 Registrations 2013: 45
Slovakia Law No. 132/1989 on the legal protection of new plant and animal varieties 1989 1996, 2001
Slovenia Plant Variety Protection Act 11/18 December 1998
Spain Law 3/2000 2000
South Africa Plant Breeders' Rights Act 1976 1996 Registrations 2013: 309
Czech Republic Law No. 408/2000 10/25/2000
Tunisia Law No. 99-42 on seeds, seedlings and new varieties of plants in Tunisia 05/10/1999
Turkey Law No. 5042 Registrations 2013: 215
Ukraine Plant Variety Protection Act 07/01/2002 Registrations 2013: 1,544
Hungary Law No. XXXIX / 2002 2002 Patent protection was previously possible.
United States of America Plant Protection Act (PPA; Townsend-Purnell Act, 35 USC Sections 161-164) May 23, 1930 For vegetatively propagated plants. Registrations 2013: 483
Plant Patent Amendment Act 1998 (PVP 91 (2001), 69); US Plant Variety Protection Act 1970 (PVPA) For generatively reproducible plants. Registrations 2013: 1,406
United Kingdom Plant Varieties Act 1997

Austria

Plant variety protection is regulated in the Federal Act on the Protection of Plant Varieties (Plant Variety Protection Act) 2001 (Federal Law Gazette I No. 109/2001). Section 1 of this contains definitions, Section 3 regulates the requirements for protection; the variety must therefore be distinguishable, homogeneous, stable and new. Section 4 regulates the effects of plant variety protection, Section 5 its duration and end, Section 6 the compulsory licenses. The second part regulates in § 7 to § 16 the granting of plant variety rights including transfer, revocation and annulment as well as obligations of the owner of the plant variety rights. The third part deals with the variety denomination in § 17 and § 18. The fourth part (§ 19 to § 22) regulates the authorities, their responsibilities and procedural law. Plant variety protection office is the Federal Office for Food Safety (§ 19). The Invalidity Department decides in proceedings for the granting of a compulsory license, for a declaration of invalidity and official transfer of plant variety protection as well as for the deletion of a variety denomination (Section 20). The Federal Office for Food Safety has to publish a variety and seed gazette that appears at least quarterly (Section 21) and to keep a public register of variety protection (Section 22). The 5th part regulates the fees (§ 23), civil law claims (§ 24), it contains a criminal provision (§ 25) and another on administrative penalties (§ 26), further transitional provisions (§ 27), a regulation on the entry into force (§ 28) and provisions on enforcement (Section 29).

Switzerland

The Federal Act on the Protection of New Varieties of Plants (Plant Variety Protection Act) of March 20, 1975 (AS 1977, 862; SR 232.16), which has been amended several times, applies. In its first chapter, Art. 2 contains definitions, Art. 8b regulates the protected varieties. Art. 5 regulates the effects of plant variety protection in principle, Art. 6 the exceptions. The farmer's privilege is the subject of Art. 7. The exhaustion of plant variety protection is standardized in Art. 8a. The right to plant variety protection is the subject of Section 3 (Art. 9 to Art. 11), the variety denomination and trademark of Section 4 (Art. 12 to Art. 13b). Changes to the existence of plant variety protection (including annulment and repeal) are regulated in Section 5 (Art. 14 to Art. 17). The 6th section concerns changes in the right to plant variety protection and in the right to plant variety protection (Art. 18 to Art. 20), the 7th section (Art. 21 to Art. 22b) licenses. The second chapter regulates the organization and procedures. The competent authority is the Office for Plant Variety Protection of the Federal Office for Agriculture (Art. 23). The Plant Variety Protection Office commissions a federal agricultural research institute or another suitable body to examine the variety for distinctness, homogeneity and stability; it can recognize foreign test results (Art. 24) and recognize foreign plant variety protection titles (Art. 31a). Plant variety protection registers and publications are regulated in Articles 32 to 34, the fees in Article 36. Chapter 3 relates to protection under civil law, and Chapter 4 to criminal law. Finally, the 5th chapter contains final provisions. The Ordinance on the Protection of New Varieties of Plants (Plant Variety Protection Ordinance) of June 25, 2008 (SR 232.161) also applies.

Economical meaning

The economic importance results from the right of the plant variety protection holder to participate financially in the propagation of the protected variety in any case. In Germany, commercial users (e.g. farmers) are not allowed to produce or store reproductive material without the consent of the owner of the variety protection (Section 10 Paragraph SortG). So it is not possible to keep part of the harvest of one year without permission in order to use these fruits for sowing in the following years. This right of the proprietor of the variety protection is restricted for a few varieties in § 10a para. 2 SortG, but only to the extent that the renewed sowing (propagation) cannot generally be prevented by the proprietor of the variety protection. For these varieties, too, the farmer is "obliged to pay the holder of the plant variety protection an appropriate fee" (Section 10a (3) of the SortG).

Plant variety protection is a property right that enables the breeder to exploit his variety economically in order to receive remuneration for his (intellectual and financial) preliminary work. Plant variety protection is therefore often applied for by small and medium-sized companies. The number of registrations at the Community Plant Variety Office has been between 2,500 and 3,297 (2013) per year for years. Of these, 2,013 55% ornamental plants - by far the leader rose and chrysanthemum - and 20% of agricultural crops (by far the first corn before spring wheat and potato ), on horticultural varieties at the top garden salad . When assessing the above figures economically, it must be taken into account that agricultural crops (e.g. potatoes, grain) are grown to a much larger extent than ornamental plants (e.g. roses, chrysanthemums). The mentioned high proportion of registrations for ornamental plants also follows from the special regulations for ornamental plants (for Germany e.g. in Section 3a (1) No. 2 of the Seed Traffic Act ). When it comes to the origin of the applicants, the Netherlands is well ahead of France, Germany and the USA.

The international plant variety protection ( UPOV Agreement), which has also been implemented into applicable law in the EU and Germany, gives the contracting states the option of restricting the breeder's right with regard to each variety within an appropriate framework and while safeguarding the legitimate interests of the breeder to allow farmers to use crops that they have grown on their own farm for the purpose of propagation. This also and especially benefits medium-sized breeders. Plant variety protection thus also contributes to breeding progress and food security in less developed countries. The extent of this “farmer's privilege” was particularly controversial in Germany and France.

International interest groups on the breeder's side are

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

criticism

Ethical issues

In general, plant variety protection also raises ethical questions, since it claims "intellectual property" in biological organisms .

Plant variety protection - like patent protection - is in a tense relationship with the interests of the users directly affected, such as those traditional plant breeders and farmers' associations, who are responsible for free access to the available resources, their preservation ("regional varieties"; maintenance of the variety approval after the protection period) and for Replica is mainly in agriculture on the one hand and the interests of the seed industry and research institutes specializing in green genetic engineering on the other.

Poster for free replica at the demonstration We're sick of it! 2013

In relation to developing countries, the charge of biopiracy is raised not only in relation to patents but also to plant variety rights . A case of Biopiratierie is documented from West Africa: In Niger, plant variety protection was applied for for the peasant onion variety "Violet de Galmi" without any breeding service being provided. In relation to the effects of industrial property protection on genetic diversity, the legally non-binding obligation of the FAO on plant genetic resources from 1983 with the "Common Heritage" principle is particularly important. Plant variety protection only marginally affects the problem of the release of genetically manipulated material.

Free varieties

Plant seeds and the plants growing from them are referred to as free varieties or free seeds, which are unconditionally released for any possible use by everyone. This idea is represented by various initiatives that question the concept of plant variety protection and patent law and want to set an opposite pole to property and exclusive rights . Based on the term open source , which is widespread in the software sector , this seed is sometimes also referred to as open source seed.

literature

  • Axel Metzger among others: Plant variety protection law: SortG, GSortV, PatG, EPÜ (yellow explanatory books). CH Beck, 2016, ISBN 978-3-406-68445-6 .
  • Franz Wuesthoff, Herbert Leßmann, Gert Würtenberger: Handbook on German and European plant variety protection. 2 volumes. WILEY-VCH Verlag, Weinheim 1999, ISBN 3-527-28810-4 .
  • Herbert Leßmann, Gert Würtenberger: Handbook on German and European plant variety protection law. 2nd Edition. 2009, NOMOS Verlag, ISBN 978-3-8329-4027-0 .
  • Gert Würtenberger, Paul van der Kooij, Bart Kiewiet: European Community Plant Variety Protection. 2nd Edition. Oxford University Press, 2015, ISBN 978-0-19-873278-5 .
  • Alfred Keukenschrijver: Plant Variety Protection Act. (= Heymann's pocket comments on commercial legal protection ). 2nd edition, 2017, ISBN 978-3-452-28857-8 .
  • Rudolf Nirk, Eike Ullmann: Patent, utility model and plant variety protection law. 3. Edition. CF Müller, Heidelberg 2007, ISBN 978-3-8114-3368-7 .
  • Burkhart Goebel: Plant patents and plant variety rights in the world market, at the same time a contribution to the revision of Art. 27 Para. 2 b) TRIPS Agreement. (= Writings on technology law. Volume 2). 2001, ISBN 3-428-10391-2 . (cf. Diss. Freiburg / Br. 2000)
  • Hans Neumeier: Plant variety protection and / or patent protection for plant varieties. Heymanns, Cologne, ISBN 3-452-21709-4 . (also Diss. University of Munich 1989/90)
  • Gabriele Winkler: Community Plant Variety Protection: A success story with a downer. In: Festschrift 50 years of the Federal Patent Court. 2011, ISBN 978-3-452-27526-4 , pp. 1099ff.

Web links

Individual evidence

  1. ↑ a b Regulation (EC) No. 2100/94 (PDF) of July 27, 1994.
  2. ↑ GRUR 1930, 244.
  3. ↑ upov.int
  4. ↑ InstGE 4, 35 - Inuit
  5. ↑ BPatG September 6, 2012 36 W (pat) 1/10 BPatGE 53, 277 = GRUR Int. 2013, 243 Clematis florida fund memories
  6. ↑ BGH, decision of January 14, 2014 X ZB 18/12, GRUR 2004, 355 - Fond Memories
  7. ↑ GSA (BK) InstGE 2, 192 - dais
  8. ↑ BGHZ 187, 1 = GRUR 2010, 996 - Bordako
  9. ↑ EGC T-95/06 GRUR Int. 2008, 413 - Nadorcott
  10. ↑ EuG T-135/08 Coll. 2010 II 5089 - Gala Schnitzer, confirmed in ECJ C-534/10 GRUR Int 2013, 131 Gala Schnitzer
  11. ↑ CFI - Nadorcott
  12. ↑ ECJ GRUR Int. 2009, 133 SUMCOL 01
  13. ↑ EGC September 18, 2012 T 133/08 Lemon Symphony
  14. ↑ See Supreme Court Canada GRUR Int. 2004, 1036 - Monsanto v. Schmeiser (Roundup).
  15. ↑ a b BGH, judgment of February 14, 2006 , Az. X ZR 93/04, full text; BGHZ 166, 203 = GRUR 2006, 575 - Melanie.
  16. ↑ BGH, judgment of December 15, 1987 , Az. X ZR 55/86, full text; BGHZ 102, 373 = GRUR 1988, 370 - agate.
  17. ↑ OLG Karlsruhe, judgment of May 26, 2004 , Az. 6 U 216/03, full text.
  18. ↑ OLG Düsseldorf, judgment of December 21, 2006 , Az. I-2 U 94/05, full text.
  19. ^ BGH, judgment of April 23, 2009 , Az. Xa ZR 14/07, full text; BGH GRUR 2009, 750 - Lemon Symphony.
  20. ^ Alfred Keukenschrijver: The "farmer's privilege " in national and community plant variety protection law - an intermediate state. In: Festschrift for Eike Ullmann. juris GmbH, Saarbrücken 2006, ISBN 3-938756-10-1 , p. 465.
  21. ↑ ECJ July 5, 2012 C-509/10 GRUR Int 2012, 745 Geistbeck on submission of BGH GRUR 2010, 1087 - Solara, subsequently BGH October 27, 2012 X ZR 58/07
  22. ↑ OLG Düsseldorf InstGE 13, 18
  23. ↑ ECJ November 15, 2012 C-56/11 GRUR 2013, 60 Raiffeisen-Waren-Zentrale Rhein-Main / Saatgut-Treuhandverwaltung
  24. ↑ Federal Law Gazette I No. 109/2001 .
  25. ^ AS 1977, 862.
  26. ^ EKD : Consent with creation
  27. ↑ Mohamed Coulibaly, Robert Ali Brac de la Perrière, with contributions from Sangeeta Shashikant: A Dysfunctional Plant Variety Protection System: Ten Years of UPOV Implementation in Francophone Africa . Ed .: APBREBES and BEDE, together with Third World Network, Development Fund, Public Eye and Swissaid.
  28. ↑ osseeds.org website of the Open Source Seed Initiative. Retrieved February 22, 2016.
  29. ↑ agrecol.de Free download of publications from Agrecol members. Retrieved February 22, 2016.
  30. ↑ freie-saaten.org site Freie-Saaten.Org. eV Accessed on February 22, 2016.