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 intellectual 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 intellectual property rights coexist with respect to plant varieties: The Plant Variety Rights and Patents.

THE PLANT VARIETY TITLE

  • It is a specific intellectual property right 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 right, the plant variety must be distinct, homogeneous, stable and new. The duration of plant variety rights 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 date in which the right was granted.
  • Through the granting of such a title, exclusive rights for commercial exploitation are granted to the breeder of the plant variety, during a limited period of time, with two exceptions:
  • The so-called “breeder’ exception”, which ensures open access to genetic resources and promotes biodiversity by allowing any breeder to use a protected plant variety to obtain a new plant variety for commercial purposes.
  • The so-called “farmer’s exception”, applicable to at least 21 species of cereals, potatoes and other field crops, which allows farmers to re-use for sowing purposes the seed obtained on their own holding from a previous harvest, 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

Patents are intellectual property rights 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. Patents grant an exclusive right to the holder for commercial use and exploitation of the invention, for a non-renewable duration 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 carried out a patent cannot be used to obtain a new variety without the permission of the patent holder, i.e. there is no breeder’ exception in the patent system.