European Union: What Are The Novelty And Protection Period Or Blueberry: 25 Years Or 30 Years?

Abstract

What are the Novelty and Protection Period or Blueberry: 25 years or 30 years?

The duration of protection for Blueberries has been extended from 5 years of the standard duration of 25 years by the CVPO with a deduction of the longest period of protection in a Member State prior to the grant of a Community plant variety right. This change does not have any impact on the calculation of the novelty period which remains 4 years for commercialization outside the EU. As from the Turkish perspective the PBR of Blueberry species are granted for 25 years because they are classified as "shrub" and not as a tree, vine, potato granted for 30 years.

What are the Novelty and Protection Period or Blueberry: 25 years or 30 years?

The encouragement of development for plant varieties and the provision of protection for new varieties and breeder's rights (PBR) are governed in Turkey by the Law no. 5042 on the Protection of Breeders' Rights of New Plants Varieties entered into force on January 15, 2004.

The practices within the frame of said Law no. 5042 are harmonized with those of the Community Plant Varieties Office /CPVO- a regional Office of the European Union/EU for obtaining EU wide protection of plant variety rights-. Even though Turkey is not an EU member state, it closely cooperates with the CPVO whereby data regarding the breeder's rights is transferred periodically from the General Directorate of Plant Production/BÜGEM to the CPVO. The Community plant variety right, gives an exclusive right to the owner for the protected variety within the territory of the EU for a protection period of 25 to 30 years depending on the variety.

Turkey is also a member state of the International Union for the Protection of New Varieties of Plants/UPOV. To the contrary of the regional application for CPVO, UPOV is not an international application system, however it provides standards and norms with the aim to harmonize and ease the registration proceedings at the national levels. Turkey became a member of UPOV on November 18, 2007as the 65th country.

The Turkish Law on Breeders Rights enacted in 2004 and its Implementing Regulation have been prepared based on the EU Regulations no. 2100/94/EC and no. 1768/95/EC and are following the UPOV and EU legislations.

The Law no. 5042 and its Implementing Regulation entered into force on August 12, 2004, provide in depth details on how to file an application for PBR registration before BÜGEM- the competent authority of the Ministry of Agriculture and Forestry- in charge of the pre-registration and post-registration formalities.

The Variety Registration and Seed Certification Center (TTSM) depending on the same Ministry, is the competent authority in charge of granting production authorizations for

varieties registered in the National Listing and is also appointed for conducting the technical examination of varieties in respect of which the Turkish PBR application has been filed.

After this technical evaluation conducted by TTSM and lasting approximately between 1 to 3 years, in case of a positive result, BÜGEM grants a PBR Certificate for the variety.

Novelty

The breeder of a variety will be granted PBR provided the variety is New, Distinct, Uniform and Stable (DUS criteria). These criteria are used to determine the eligibility of a variety for PBR protection.

For the novelty requirement, the breeder shall make sure that the variety is new before applying to the PBR application. The variety must be new according to Article 5 of Law no. 5042 if its propagating or harvested material is not sold or "presented to the public" ("presented to the public" should be understood as disposal of to others for commercialization purposes) and the application is filed:

• within 1 year as from the date of first national commercialization, i.e., the variety may not have been sold longer than 1 year in Turkey

• within 4 years as from the date of first commercialization abroad, i.e., the variety may not have been sold longer than 4 years outside Turkey

• within 6 years as from the date of first commercialization abroad for trees and vines, i.e., the variety can be sold up to 6 years outside Turkey.

This provision is in parallel with the novelty requirement in the UPOV Convention. The novelty affected by the "sale or otherwise disposal of to others, by or with the consent of the breeder, for purposes of exploitation of the variety (according to Article 6(1) of the 1991 Act of the UPOV Convention) and "offering for sale or marketed, with the agreement of the breeder" (according to Article 6(1)(b) of 1978 Act of the UPOV Convention) should be considered.

The triggering point for the beginning of the novelty period regarding "sales" of the propagating or harvested material of the variety should be understood as the physical transfer of propagating material for commercial purposes according to the approach of UPOV in the report from the Technical Working Party for Ornamental Plants and Forest Trees dated November 12, 2015. It should be noted that there is no official publication by the UPOV regarding this interpretation on the commercialization for determining the novelty.

In this report it is clarified that the physical transfer of material for testing purposes and other purposes shall not harm the novelty of the variety, if the material remains under the supervision of the breeder. Additionally, the physical transfer of material of the variety, which has been produced from plants grown for test purposes and which is not used for further reproduction or multiplication, shall not be deemed to be exploitation of the variety, provided that the said material is transferred without variety identification.

As from the approach of the CPVO, according to Article 10 of the Council Regulation (EC) No. 2100/94, the novelty exists if "the variety constituents or harvested material have not been sold or otherwise disposed of to others by or with the consent of the breeder for purposes of exploitation of the variety". The relevant date to establish the compliance with the novelty requirement is the physically transferring date of the plant material/ the variety for which the PBR application will be/has been filed.

The disposal of variety constituents to an official body for statutory purposes, or to others based on a contractual or other legal relationship solely for production, reproduction, multiplication, conditioning, or storage, is not deemed to be a disposal of to others. For the assessment of the date of the first disposal of the variety application, the CPVO will check at what date the physical transfer by means of the delivery of the variety constituents or harvested material has taken place for the purposes of commercial exploitation.

The approach of BÜGEM is in parallel also with those perspectives regarding the starting point of the commercialization date. During the filing of a recent PBR application, the delivery shipping date indicated on an invoice has been accepted as "the sale date" i.e., the triggering date for the start of the novelty period instead of the invoice date for commercialization purposes. If there is no delivery shipping date on the invoice, the invoice date is deemed as the effective "sale date". It is to be noted that similarly to UPOV, BÜGEM has not published any official communication on this matter but evaluates the cases as mentioned above.

In case the variety is sold for periods longer than the above indicated ones, the variety is deemed not to comply with the novelty requirement for protection purposes.

Accordingly, the variety type is determining for calculating the novelty as well as the protection period.

Duration of rights

According to Article 10 of Law no. 5042, the duration of the PBR as from the registration date is:

- 25 years for all varieties

- 30 years for a tree, vine, and potato.

Among the varieties, a main question arises as to the calculation of the novelty period for sales outside Turkey as well as the protection period for blueberry species.

In this context, the question is whether the blueberry is a tree or another variety (shrub) and therefore has a novelty period of 6 years and protection period of 30 years or a novelty period of 4 years and protection of 25 years?

The reply to this question is confusing as BÜGEM, until now, has granted Certificate of Registrations for Blueberry for both terms, in other words, in the records of BÜGEM, there are Blueberry varieties granted for 30 years and others for 25 years.

We have also experienced such confusion before BÜGEM with our five applications for blueberry varieties, among which four of them have been granted registration for 25 years and one for 30 years.

As from the European perspective, among the correspondence our office exchanged with the CPVO in the year 2017, it has been stated that the CPVO considers blueberry to be shrubs and therefore it has been concluded that the novelty period is 4 years, and the protection period is 25 years  as from the registration date for Blueberry varieties.

As from the Turkish perspective, we have been orally informed by BÜGEM that the Turkish registrations of Blueberry varieties for 25 years might be due to an erroneous publication since the TTSM conducting the technical substantive examination of the varieties classified the blueberry as fruits and therefore subjected it to 30 years of protection.   

As from these different approaches, the necessity of clarification for the duration of protection period for the PBR of blueberry variety has arisen. Following our petition filed before BÜGEM for the evaluation of the duration, an official notification dated 30.11.2021 has been received whereby it is indicated that PBR of Blueberry species are granted for 25 years because they are classified as “shrub” and not as a tree, vine, potato granted for 30 years. As a result, we have been informed by BÜGEM that corrections of the terms of protection and publications of such corrections will be carried out although no time interval has been provided. This approach was also in line with the CPVO implementation and practise until November 15, 2021.

Why until November 15, 2021?

Although the duration of protection is clarified and concluded before the Turkish authorities, a recent development has occurred regarding the extension of the duration from 25 years to 30 years by the CPVO.

Specifically, by Regulation (EU) 2021/1873 of the European Parliament and of the Council dated October 20, 2021, the protection term of the Community plant variety rights for the species Asparagus officinalis L. and of the species groups flower bulbs, woody small fruits and woody ornamentals, has been extended by five years.

The CPVO publishes the list of the species contained so far in its Registers and which are concerned by the Regulation by indicating the maximum duration of protection in the S2/S3 publication. They are three categories of species: namely “category A” (duration of protection for 30 years for trees and vines), “category B” (duration of protection extended of 5 years of the 25 years) and “category C” (duration of protection for 25 years for genera or species not falling in category A or B).

The species falling under the above-mentioned “Asparagus officinalis L. and of the species groups flower bulbs, woody small fruits and woody ornamentals” are published under the “category B” by the CPVO and Blueberries are classified as “category B” for which the duration of protection has been extended of 5 years of the standard duration of 25 years. The fact that the protection has been extended of 5 years does not have any impact on the calculation of novelty period, which remains 4 years for commercialization outside the EU.

As a result, the Blueberries are protected for a total of 30 years with deduction of the longest period of national protections in an EU member state prior to the grant of the Community plant variety right. The deduction shall be made in full years for a maximum period of 5 years.

This extension would apply in the EU to rights granted before, on or after the date of entry into force of this Regulation which is November 15, 2021. The European Parliament and the Council of the European Union motivated the adaption of this Regulation on grounds that:

“Technical difficulties in breeding, due to complex genetic backgrounds or to the slow or technically complicated reproduction of the species Asparagus officinalis L. and the species groups flower bulbs, woody small fruits and woody ornamentals, need to be addressed by means of investments in research and development activities. Once protection of plant variety rights is granted for that species and those species groups, it takes years to multiply the plants and to build up a stock that is sufficiently large to generate a reasonable income. Accordingly, the time during which the holder of the plant variety rights can generate income based on that protection is limited. To encourage investments in research and development for varieties of that species and those species groups, it is necessary to prolong the term of protection of plant variety rights”.

As regards the Community plant variety rights granted and valid for all legal consequences before 15 November 2021, the CPVO will amend the date on which the Community plant variety right ends and will inform the title holders accordingly.

CONCLUSION AND COMMENTS:

This new Regulation (EU) 2021/1873 with the extension of duration for the species Asparagus officinalis L. and of the species groups flower bulbs, woody small fruits and woody ornamentals, from 25 years to 30 years, will likely change again the current approach of BÜGEM summarized in the official notification issued on 30.11.2021 where it has been concluded that PBR Blueberry species classified as “shrub” are granted for 25 years, so the novelty period should be calculated as 4 years for commercialization purposes outside Turkey.

The corrections for Blueberry varieties granted for 30 years instead of 25 years are expected to be published in the next Turkish PBR Bulletins.

However, those republications coincide with this Regulation, the duration of protection and the novelty term for Blueberries remains a matter waiting to be settled. It is possible that BÜGEM changes its position again and adopts the period of 30 years for Blueberry classified as “shrub” and thereby, as “woody small fruits and woody ornamentals”.  The change of perspective of BÜGEM for being in line with the CPVO practise will not surprise and is not to be excluded. However, bringing the Turkish practise on this subject in line with CPVO practice is not expected to materialize shortly.

Posted in Plant Breeder's Rights. .

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