Editing Plant breeders' rights (section)

{{Short description|Right of exclusive control over a plant}}
{{refimprove|date=January 2011}}
{{Intellectual property}}
'''Plant breeders' rights''' ('''PBR'''), also known as '''plant variety rights''' ('''PVR'''), are rights granted in certain places to the [[plant breeding|breeder]] of a new [[Plant variety (law)|variety]] of plant that give the breeder [[exclusive right|exclusive control]] over the propagating material (including [[seed]], cuttings, divisions, tissue culture) and harvested material ([[cut flowers]], fruit, foliage) of a new variety for a number of years. The system of Plant breeders' rights is considered a [[sui generis]] form of intellectual property rights.<ref>{{Cite web |title=IELRC.ORG - PLANT VARIETY PROTECTION: Patents, Plant Breeders’ Rights & Sui Generis Systems |url=https://www.ielrc.org/content/f0304.htm |access-date=2025-02-25 |website=www.ielrc.org}}</ref>

With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform, and stable.<ref>{{Cite web|url=https://www.plantvarietyrights.org/plant-variety-rights.html|title=Plant Variety Rights|website=www.plantvarietyrights.org|access-date=2020-03-04}}</ref> A variety is:
*''new'' if it has not been commercialized for more than one year in the country of protection;
*''distinct'' if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc.;
*''uniform'' if the plant characteristics are consistent from plant to plant within the variety;
*''stable'' if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of [[F1 hybrids|hybrid]] varieties.

The breeder must also give the variety an acceptable "denomination", which becomes its generic name and must be used by anyone who markets the variety.

Typically, plant variety rights are granted by national offices after examination. Seed is submitted to the plant variety office, who grow it for one or more seasons, to check that it is distinct, stable, and uniform. If these tests are passed, exclusive rights are granted for a specified period (typically 20/25 years, or 25/30 years for trees and vines). Renewal fees (often, annual) are required to maintain the rights.

Breeders can bring suit to enforce their rights and can recover damages. Plant breeders' rights contain exemptions that are not recognized under other legal doctrines such as patent law. Commonly, there is an exemption for farm-saved seed. Farmers may store this production in their own bins for their own use as seed, but this does not necessarily extend to "brown-bag sales" (i.e. resale of farm-saved seed to neighbors in the local area).<ref>{{cite web|url=https://www.uidaho.edu/-/media/UIdaho-Responsive/Files/research/ott/faculty-researchers/learning/seed-ip-flyer.pdf|title=Since 1994, brown-bag sales of PVP-protected seed has been illegal in the United States|website=uidaho.edu|access-date=13 March 2024}}</ref>   Further sales for [[plant propagation|propagation]] purposes are not allowed without the written approval of the breeder. There is also a breeders' exemption (research exemption in the 1991 Act) that allows breeders to use protected varieties as sources of initial variation to create new varieties of plants (1978 Act),<ref>{{cite web|title=International Convention For The Protection Of New Varieties Of Plants of December 2, 1961, as revised at Geneva on November 10, 1972, and on October 23, 1978, UPOV Convention|url=http://www.upov.int/en/publications/conventions/1978/act1978.htm|url-status=dead|archive-url=https://web.archive.org/web/20120626113944/http://www.upov.int/en/publications/conventions/1978/act1978.htm|archive-date=June 26, 2012}}</ref> or for other experimental purposes (1991 Act).<ref>{{cite web|title=International Convention For The Protection Of New Varieties Of Plants of December 2, 1961, as Revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991, UPOV Convention|url=http://www.upov.int/en/publications/conventions/1991/act1991.htm|url-status=dead|archive-url=https://web.archive.org/web/20060821220927/http://www.upov.int/en/publications/conventions/1991/act1991.htm|archive-date=August 21, 2006}}</ref> There is also a provision for [[compulsory licensing]] to assure public access to protected varieties if the national interest requires it and the breeder is unable to meet the demand.

There is tension over the relationship between patent rights and plant breeder's rights. There has been litigation in Australia, the United States, and Canada over the overlap between such rights.<ref>Matthew Rimmer. "Franklin Barley Patent Law And Plant Breeders' Rights", Murdoch University Electronic Journal of Law, December 2003, Vol. 10, No. 4, URL http://www.murdoch.edu.au/elaw/issues/v10n4/rimmer104.html</ref> Each of these cases was decided on the principle that patents and plant breeders' rights were overlapping and not mutually exclusive. Thus, the exemptions from infringement of plant breeders' rights, such as the saved seed exemption, do not create corresponding exemptions from infringement of the patents covering the same plants. Likewise, acts that infringe the plant breeders' rights, such as exportation of the variety, would not necessarily infringe a patent on the variety, which only allows the patent owner to prohibit making, using, or selling [[Exhaustion of intellectual property rights|(first sale, but not resale)]] the patented invention.