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The UK Government's Guidance on Effects of a “No Deal” Brexit on Plant Variety Rights

On 12 October 2018 the UK Government published a further series of Technical Notices addressing various scenarios in which the UK leaves the European Union without an agreement, the so-called “no deal” or “hard” Brexit scenario. The Technical Notice dealing with plant variety rights and marketing of seed and propagating material is here. It had previously issued, on 24 September 2018, a Technical Notice relating to importing and exporting plants and plant products in the event of a “no deal” scenario, which is here. Its notice on trade marks and designs in a “no deal” scenario, which can be found here, is also of interest because, similar to trade marks and designs and unlike European patents, many plant variety rights effective in the UK are of course the EU rights granted by the Community Plant Variety Office (CPVO) and known as Community Plant Variety Rights (CPVRs). It appears that the provisions for all these EU rights will be generally similar in the event of there being no deal.

If there is no deal, the UK Government will ensure that all existing granted CPVRs will continue to exist and be enforceable in the UK by providing an equivalent right in the UK, without rights holders needing to take any action. Where an application for a CPVR has been made but not yet granted at the date of exit, an application will need to be made in the UK, maintaining the same priority date. No guidance is provided at this time as to when such an application will have to be made or what the details of the process will be. After Brexit, separate filings for new varieties will be needed in the UK and in the EU.

What is not yet clear is exactly what will happen as regards DUS tests, the physical tests by which PVR systems assess distinctness, uniformity and stability of plant varieties by growing samples and inspecting their characteristics. These tests can be lengthy and expensive so it is clearly desirable if the UK and EU authorities can continue to cooperate such that duplicate tests are not required on the same

variety under the two systems. For CPVR applications pending at the date of Brexit, it appears that the UK will recognise the EU DUS test as the basis to grant a UK right alongside the CPVR. The UK authorities are also reviewing their processes with a view to accepting DUS tests from the EU in the longer term where possible. Meanwhile, the CPVO is also making arrangements for the testing of the approximately 800 species for which the UK is currently responsible to be carried out in EU27 countries after Brexit. Close cooperation between national and EU authorities as to DUS tests is a hallmark of plant variety right and national listing systems so it is hoped that this can continue between the UK and EU after Brexit. However the CPVO’s current principle is that it only generally “takes over” foreign DUS reports for species that it would otherwise find hard to test in Europe. It may therefore be the case that the UK can accept EU DUS tests more easily than the EU can accept UK DUS tests. In this event, it will make sense to file for plant variety rights both in the EU and in the UK and look to use the EU DUS test to support both applications.

The 24 September and 12 October notices also contain provisions on importing and exporting plants and marketing seed and propagating material in the EU and in the UK in a “no deal” scenario. These include a one-time opportunity to transfer onto the UK’s national list, at no cost, varieties from the EU Common Catalogue of varieties first approved for marketing in one member state and then in the whole EU as a result. In a “no deal” scenario, the UK also intends to allow UK marketing of varieties in the EU Common Catalogue, and of EU certified seed and propagating material, for a two-year interim period after the UK leaves the EU. The UK is also hoping to obtain certification to the effect that UK DUS tests for national listing purposes can continue to form the basis of EU common catalogue listings.

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

15 October 2018

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