Everything you
need to know about Brexit and how it affects your IP

The UK withdrew from the EU (Brexit) on 31 January 2020 but then entered a transition period, during which Community Plant Variety Rights (CPVRs) remained in force in the UK. This period ended at 23:00 (UK time) on 31 December 2020 (“exit day”) so separate PVR protection is now required in the UK.

Relatively little detailed guidance is available on procedures for Plant Variety Rights in the UK from exit day onwards. This is not surprising in view of the fact that very few UK national PVR applications have been filed since the CPVR system came into being (but many more are expected from now on). However, the main points to be aware of are as follows:

• CPVRs granted more than two months before exit day, i.e. up to the end of October 2020, have automatically become “comparable rights” in the UK in the same way as for Community Designs and Trade Marks.
• For these comparable rights, a UK address for service cannot be required until at least three years after exit day and it is not yet clear whether or not such a requirement will be introduced at that point.
• CPVR applications that were pending on exit day, or that were granted less than two months before exit day (i.e. in the last two months of 2020), will have to be re-filed nationally in the UK but will maintain their CPVO filing date for novelty purposes. The deadline for these re-filings will be six months from exit day, i.e. 30 June 2021.
• In relation to varieties for which no CPVR application had been made before exit day, new stand-alone UK applications will be required if PVR protection is desired in the UK.
• It should often be possible to rely on CPVO DUS tests to secure grant of PVRs in the UK. This is guaranteed for applications based on pending or recently granted CPVRs, but will also apply in relation to newly filed stand-alone UK applications for the many species for which the UK does not currently have its own DUS testing capacity. A UK DUS test will be required for species for which the UK does have independent testing capability. Further mutual recognition of EU and UK DUS test reports may however be negotiated in future.
• At the moment, the UK PVR system does not require payment of renewal fees. However, renewal fees have existed in the past and, in view of the expected increase in volume in the future, they may be reintroduced at some point, perhaps as soon as 2022. However, no firm details on whether or when this will occur are yet available.

Practical Advice

Comparable Rights derived from CPVRs

J A Kemp is available as a UK address for service for UK PVRs that have come into being automatically as comparable rights. As noted above, a UK address for service cannot be required immediately but we can still record ourselves as one if clients wish. This may be convenient if we will also be filing new applications based on pending or recently granted CPVRs for the same applicants.

CPVRs pending and granted less than two months before exit day

J A Kemp is also available to re-file these applications with the UK authorities. As noted above, the deadline for this action will be 30 June 2021. However, it would be best to contact us in good time before this deadline.

New stand-alone UK PVR Applications 

Where no CPVR application had been filed before exit day, it has now become a necessity to file PVR applications in both the EU and UK, if protection is required in both jurisdictions. J A Kemp remains able to file in both the UK and the EU through our UK and Paris offices respectively.

Please contact Andrew Bentham or your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.