Protection Systems

The research and development of new plant varieties requires of their creators (breeders) major outlays in time, work and economic and human resources. In order to protect and encourage such efforts, the law provides breeders with industrial property rights that enable a balance to be struck between the benefits that farmers and society as a whole obtain from this activity, and the need to reward such breeders, so as to enable them to recoup their investments and ensure the sustainable progress of agriculture.

At present, two types of industrial property rights coexist with respect to plant varieties: The Plant Variety Title and The Invention Patent.

THE PLANT VARIETY TITLE

  • It is a specific industrial property right title for plant varieties that is used in 86 countries worldwide, including those belonging to the European Union. Such a title may be granted for Spain only or for all EU countries.
  • In order to obtain such a title, the plant variety must be distinct, homogeneous, stable and new. The period of protection of plant varieties shall extend to the twenty-fifth calendar year, or in the case of vine varieties and tree species, to the thirtieth calendar year from the year in which the protection was granted.
  • Through the award of such a title, exclusive rights of use are granted to the breeder of the plant variety, for a limited period of time, with two exceptions:
  • The exception for the benefit of the breeder, which ensures open access to genetic resources and promotes biodiversity by allowing any breeder to use protected plant material to obtain a new plant variety.
  • The exception for the benefit of the farmer, applicable to at least 21 species of cereals, which allows farmers to re-use the grain obtained on their farm for propagation purposes, provided that they comply with the obligations and procedures laid down in the Law.
  • On the other hand, such exclusive rights do not apply to activities carried out privately and for non-commercial purposes, nor to those carried out solely for experimental purposes.

THE INVENTION PATENT

The invention patent is an industrial property right applicable to industrial and biotechnological inventions, but not to plant varieties as such (except in a few countries such as USA, Japan, Australia, etc.). However, inventions whose object is plants or animals shall be patentable if the technical feasibility of the invention is not limited to a particular plant variety or animal breed. The invention patent grants to the holder thereof, an exclusive right of use of the invention for a non-renewable period of 20 years. Such a right may be granted for Spain only, or, by means of a single European patent application, protection may be granted in up to 38 European countries.

Seeds or plants that have an invention patent cannot be used to obtain a new variety without the permission of the owner thereof, i.e. there is no exception for the benefit of the breeder in the patent system.