Future of protecting plant related innovations

Two types of IP protection are available in Europe for plant-related innovations: (i) plant variety rights (PVRs) and (ii) patents. Both types of protection may be obtained nationally or more widely, with a European patent from the European Patent Office (EPO) or with a community plant variety right (CPVR) from the Community Plant Variety Office(CPVO) under the International Convention for the Protection of New Varieties of Plants (UPOV Convention).

The legislative intent was that there should be no gaps between plant variety and patent protection. At the EPO, specific plant varieties may not be individually claimed in a patent,1 as these can be the subject of individual PVRs. However, plants are patentable where the technical feasibility of the invention is not confined to a particular plant variety,2 so a patent claim may nonetheless encompass plant varieties. The other exclusion from patentability specific to plant-related innovations at the EPO is that of “essentially biological processes for the production of plants”.3 This exclusion is the subject of much debate in Europe, predominantly at the EPO but also in other member states, most notably the Netherlands. It is considered further here.

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