Eligibility requirements for the acquisition of intellectual property rights for plant varieties
Rate this article
Plant variety as well as the majority of objects of intellectual property should match conditions of the acquisition for legal protection. For example, an industrial design must be new, utility model should as well be industrially applicable, and invention except the above two criteria must be inventive.
Legal protection for plant variety and eligibility requirements of aforecited are provided in the Ukrainian legislation (Law of Ukraine "On the Protection of Plant Varieties") and international standards (International Convention for the Protection of New Varieties of Plants). It is based on difference from other IP rights. Special conditions of the new plant varieties, cultivation and the ability to reproduce defined criteria for suitability of varieties grown for the acquisition of intellectual property rights:
Requires that the applicant variety has not been sold or otherwise disposed to others for more than one year in the country of application or for four years (six for trees or vines) elsewhere.
A variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application
All plant varieties are sufficiently similar
Signs defined in the description are not disposable and unchanged after propagation
According to the Article 6 of the International Convention for the Protection of New Varieties of Plants, and Article 11 of the Law of Ukraine "On the Protection of Plant Varieties" plant variety must be new.
One of the features of novelty is question about spreading variety, and if the person had a request for the expansion of the Applicant’s plant variety. Therefore the law establishes that the novelty wouldn’t be lost if the grade was distributed without permission of the applicant, that is abuse at the expense of the applicant.
Also, the novelty is not lost if any of its material grades implemented in the following cases:
Implementation of the agreement on the transfer of the right to file an application;
Сontract on the reproduction of fertile material grade and his expertise as suitable for distribution, provided that collected as a result of this material was transferred to the applicant only and is not used for the production of varieties
Implemantation of certain legislation measures, in particular for the formation of bio-safety or Register varieties;
As a side or source product from the creation or improvement of varieties, without reference to variety and only for consumption.
In order to establish whether a variety differs, authority defines if it is not a well-known variety according to the Law of Ukraine "On the Protection of Plant Varieties" (Part 6,Article 11). The legislation specifies that the well-known variety is:
a) distributed in a particular area in any state;
b) information about the manifestations of its features have become available in the world, including by describing them in any publication made public;
c) represented by a model in public collections;
g) it has legal protection and/or it is listed in the official register of varieties in any country, in this case it is considered common knowledge from the date of filing of the application for a license or entered in the register.
In other words, distinctness is the driving characteristic for plant varieties. Due to this criteria variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.
Uniformity grade could be achieved by the similarity of plant varieties in their characteristics. In this case, as a general rule the similarity of plants depends not on the environment, but on affecting the expression characteristics of the variety.
Stability is ensured due to the constancy of the variety characteristics of the variety after repeated propagation. Stability is related to the uniformity. It could be checked as a result of the cultivation of a new generation or testing a new seed or planting material.
As each grade botanical taxon is characterized by common features, but have varying degrees of symptoms and has established certain condition, the timing of cultivation, then these criteria are established in accordance with procedures qualifying examination. When this is checked separately novelty.
So uniformity and stability necessitate a certain amount of backcrossing, so that the variety reproduces true to form across individual plants (uniformity) and across generations (stability). Stability and uniformity serve the important function of making a variety identifiable after propagation.
Concerning criteria check them om the following example
Distinct. Examination on the distinct in potato varieties carried out after the results of the morphological description of the first year. If the candidate variety can be the best of the well-known varieties by comparing their descriptions, it is distinctive. When you can not clearly identify the candidate variety of well-known, it should be in the next year compared to the field experiment.
Uniformity. To evaluate the uniformity of plant cultivar acceptable population standard 1% probability level of 95%. In a sample of 6-35 plants allowed one atypical, with 36-82 plants - two atypical.
Stability. Usually, when a homogeneous potato variety, it can be considered stable.
Thus, in most cases, relative distinct of the variety in the methods defined by the installation of such differences in the uniformity population standard is adopted and acceptable level of atypical, relative stability indicators accounted for more uniformity.
If you are interested in patenting of plant varieties, find out more here