Plant Breeder's Right or Plant Patent in the USA

3/4/2019 | An important and frequently asked question is how to apply for a Plant Breeder's Right in America. A logical question, because America is an important export country for the horticultural industry?

First, we need to distinguish between two options in America. In America, you can apply for a Plant Breeder's Right, but you can also apply for a Plant Patent. Below I explain the most important differences.

A Plant Breeder's Right grants the exclusive right to the sale and reproduction etc. of a variety and also to import from and export to America. The characteristics include:

- Only varieties with asexual reproduction may be applied for;
- Must be applied for within 1 year after the first sale or public availability within America and within 4 years (or 6 years for trees etc.) outside America;
- Material must be submitted and this will be examined for novelty, distinctness and stability;
- Protection period is 20 years (25 years for trees etc.);
- Higher application costs (from €5,000 but costs are usually much higher);
- Annual maintenance costs.

A Plant Patent grants the exclusive right to the sale and reproduction etc. of a variety and also to import from and export to America. The characteristics include:

- Only varieties with asexual reproduction may be applied for;
- The variety may not have been sold or disclosed before;
- A detailed description of the variety must be made. NO material needs to be sent to America. The description will only be sent to America as text and with pictures;
- The protection period is 20 years;
- Lower application costs (approximately €2,500);
- NO annual maintenance costs.

As said above, there is hardly any difference in terms of rights. Both options grant the exclusive right to a variety. What is also striking is that the application for a Plant Patent is considerably easier. No material needs to be sent, no maintenance costs have to be paid and the application costs are much lower compared to a Plant Breeder's Right. It is easier and cheaper. It comes as no surprise therefore that most applicants opt for a Plant Patent instead of a Plant Breeder's Right.

The catch? A small catch perhaps, but worth mentioning. The description must be supported with photos. These are attached when the Plant Patent is issued. Sometimes it is difficult to see the difference between certain varieties on photos. Lighting can make a light green variety appear dark green. The growing conditions are also mentioned in the description, but they are not examined by the authority. It is possible that the same breed is applied for by someone else in the Netherlands, but also by someone else in Costa Rica. The variety will then probably show differences due to the growing conditions (colour difference, height difference, etc.). Incidentally, the authority in America does check these things and they also look for any similar breeds themselves. If in doubt, they will ask questions about this. In this respect, the authority is very strict and precise. Where an application for a Plant Breeder's Right is concerned, this problem occurs less frequently, because both varieties would need to be grown under the same conditions to eliminate any differences in growing conditions.

Fortunately, there is a solution. In America, both varieties can also be grown in the same conditions in an independent study. Are both breeds actually one and the same breed? In that case, the first applicant wins the proverbial battle. A Plant Patent is therefore cheaper; you only need to keep track of the other patent applications every now and then only to ensure that you don't 'overlook' a possibly similar variety. Definitely worth it, if I say so myself.

All in all, protection in America is certainly worth considering. It is not without reason that a large part of our work consists of arranging applications in America. Want to know more? Feel free to call us and we will look into the possibilities.

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