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Introduction
Plant innovation now holds a strategic position at the intersection of agriculture, food security, and climate transition. Plant breeding, biotechnologies, genome editing, and input optimization all rely on substantial investments, long development cycles, and a highly competitive global environment.
When discussing intellectual property in the plant sector, the immediate reflex is often to think of patents. However, this perception is reductive. In practice, the protection of plant innovations relies on a set of complementary rights, whose interplay is essential.
For breeders, seed producers, and agri-tech players, true value does not lie in a single right, but in the ability to build a coherent protection framework. This approach makes it possible to cover not only the variety itself, but also the technologies, uses, and commercial applications surrounding it.
What intellectual property rights apply to the plant sector?
Plant variety rights: protection of biological creation
Plant variety rights form the foundation of protection for plant innovations. Under Article 13 of Regulation (EC) No 2100/94, the breeder is granted an exclusive right allowing them to “produce, reproduce, offer for sale, sell, export or import” propagating material of the protected variety.
This exclusive right is not limited to the initial variety. It also extends to essentially derived varieties, significantly strengthening the scope of protection.
The granting of protection is based on internationally harmonised criteria established by the UPOV Convention. A variety must be:
- novelty,
- distinctness,
- uniformity,
- stablility.
These requirements reflect a biological logic specific to the sector, distinct from patent law criteria.
To learn more about plant variety rights and filing procedures, we invite you to consult the dedicated article available on our blog.
However, this regime has a structural limitation: it protects only the variety itself. It does not cover technical processes or intangible elements related to its commercialisation. This limitation explains the need for additional legal tools.
Patents: a strictly regulated technical protection
Patents apply in the plant sector solely to protect technical innovations. They may cover microbiological processes, genetic modification techniques, or biotechnological tools.
The scope of patent protection in this field has been significantly clarified by the decision G 3/19 of the Enlarged Board of Appeal of the European Patent Office (14 May 2020), known as “Pepper II.”
In this decision, the EPO confirmed that plants obtained exclusively by essentially biological processes are not patentable. This case law restricts the use of patents for innovations derived from conventional breeding and reinforces the central role of Plant Variety Rights.
As a result, the two systems are complementary but not interchangeable.
In practice, this dual framework requires a strategic approach. An innovation resulting from genetic engineering may be protected by a patent, while the resulting variety must be protected through a Plant Variety Right. A lack of coordination between these protections can significantly weaken the rights holder’s position.
We invite you to consult our article on the simultaneous filing of a plant variety right and a patent, to help you determine the most appropriate strategy.
Trademarks: a strategic tool for commercial value
A trademark grants its owner an exclusive right to prevent the use of identical or similar signs.
It operates at a different level: commercialisation. A trademark protects a distinctive sign identifying the origin of goods. Unlike plant variety rights, it does not cover the plant itself but its positioning on the market.
Let’s take a well-known example: Pink Lady, which is not a botanical apple variety. The actual variety is called Cripps Pink. Pink Lady is a trademark used to market certain apples that meet a specific set of requirements.
This means that multiple producers can grow the Cripps Pink variety, but only those who comply with the trademark’s conditions are allowed to sell their apples under the name Pink Lady.
This clearly shows that a trademark primarily serves to organize the commercialization of a product. It does not protect the plant itself. This distinction is essential, as the same variety can be exploited by several operators, but only some of them will be able to use a given trademark.
Design rights: protecting aesthetic aspects
Additional tools may complement this framework, particularly design rights, defined under Article 3 of Regulation (EC) No 6/2002. These rights protect the appearance of products or their packaging, especially in the ornamental plant sector.
They serve as a useful complement to other rights when an aesthetic aspect is emphasized.
Why is a multidimensional strategy essential for protecting plant varieties?
The effectiveness of an intellectual property strategy lies in the ability to coordinate these different rights coherently. Each tool protects a specific dimension of innovation, and their combination ensures comprehensive protection.
Plant Variety Rights secure control over the variety. Patents protect technical processes. Trademarks structure commercial positioning and enhance perceived value, although they do not protect the plant itself.
This cumulative approach creates a highly effective legal barrier, enabling not only the protection of innovation but also the structuring of its economic exploitation.
Legal limits and balancing mechanisms to anticipate
Plant Variety Rights are designed to strike a balance between protecting innovation and preserving the dynamics of the agricultural sector. Even when a variety is protected, the rights holder does not benefit from absolute exclusivity.
- The breeder’s exemption allows third parties to use a protected variety to develop new ones, ensuring the continuity of innovation.
- Similarly, the farmer’s privilege permits, under certain conditions, the reuse of harvested material as seed for subsequent crops. This reflects the economic realities of agricultural practices.
These mechanisms demonstrate the legislator’s intention to reconcile the interests of breeders, farmers, and the market.
Conversely, patent law generally provides stricter protection, with fewer exceptions of this kind. In particular:
- there is, in principle, no automatic equivalent to the breeder’s exemption: the use of a patented invention for the purpose of developing new varieties may require authorization from the right holder;
- the farmer’s privilege does not apply to patented inventions, which may restrict the reuse of harvested material when it incorporates a protected technology;
- the scope of a patent may extend not only to the initial product, but also to certain derived products or uses, thereby strengthening the holder’s control over the value chain.
This difference highlights the importance of a strategic approach to identify precisely what is protected, what may be used by third parties, and to anticipate the resulting economic implications.
Conclusion
Plant innovations cannot be effectively protected through a single legal mechanism. The diversity of protectable elements requires a multidimensional approach, combining Plant Variety Rights, patents, trademarks, and, where appropriate, design rights.
Such a strategy secures the entire value chain, from research to commercialisation, and constitutes a decisive competitive advantage for stakeholders in the sector.
Dreyfus & Associés assists its clients in managing complex issues related to plant variety rights by offering tailored advice and comprehensive operational support for the implementation and optimization of protection strategies that incorporate all intellectual property tools (plant variety certificates, patents, trademarks, and know-how).
Dreyfus & Associés is partnered with a global network of Intellectual Property attorneys.
Nathalie Dreyfus with the support of the entire Dreyfus team
FAQ
1. Does a protected variety become freely usable after PVR expiration?
Yes, it generally enters the public domain. However, other rights, such as patents or trademarks, may still restrict its use.
2. What is the duration of protection for the different rights?
PVR protection lasts 25 to 30 years, patents last 20 years, and trademarks can be renewed indefinitely every 10 years.
3. What protection is most suitable for new genomic techniques?
These innovations typically require a combined approach: patent protection for the technical aspect and PVR for the variety.
4. What are the risks of a poorly designed IP strategy?
An incomplete strategy may lead to loss of control, legal obstacles, or reduced economic value.
5. Are farm-saved seeds compatible with IP rights?
Yes, but only within the strict framework of the farmer’s privilege, which regulates this practice.
This publication is intended to provide general guidance and highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.