Maintenance of retained EU plant variety rights – rights holder action required

Owners of retained EU plant variety rights (PVRs) need to take action by 1 January 2024 in order to maintain these rights.

As was widely reported at the time, Brexit affected the protection afforded by various types of community intellectual property, including community plant variety rights (CPVRs).

Applicants with pending CPVR applications have already had to take action to convert their applications into corresponding UK plant breeders’ rights (PBRs).

However, holders of granted CPVRs have not, to-date, needed to take any action, as all varieties granted a CPVR by the end of the Brexit transition period were automatically given protection via a corresponding right under UK legislation. These are referred to by the Animal and Plant Health Agency (APHA) as ‘retained EU PVRs’, and will have the same duration of protection as that remaining for the granted CPVR.

This automatic creation of retained EU PVRs has generated a massive number of new entries (>30,000) in the UK’s Variety Tracking System (VTS) database that require significant administration and management by APHA. 

To assist in the management of these retained EU PVRs, APHA has announced that holders of such rights will need to proactively confirm that they wish to retain these rights.

In particular, the holders of retained EU PVRs need to provide APHA with:

• confirmation that they are the correct holder of the retained EU PVR;
• an express indication of which of their retained EU PVRs are to be maintained or surrendered (this information can be provided by completing Annex 1, which has been compiled by APHA and lists all retained EU PVRs, and has been provided by APHA to all rights holders);
• an address for service in the UK or the name and address of an agent within the UK (provided via a completed Authorisation of Agent (PVS11) form); and
• any changes to the details of the rights holder should be recorded on a completed APHA Assignments of Rights form (PVS10), together with a copy of the Community Plant Variety Office register excerpt showing that the EU holder of the rights has changed.

Once this information has been provided to APHA, the VTS will generate a UK grant number for each retained EU PVR, and this will be published in the Seed Gazette.

APHA has indicated that this information should be provided by 1 January 2024. After this date, the controller may formally request a UK address for service or a UK agent. If the information is still not provided for a given retained EU PVR, APHA may terminate said right if satisfied that the holder of the rights has failed to comply with a request under regulation 6 of the Plant Breeders’ Rights (Amendment etc) (EU Exit) Regulations 2019.

In view of the large number of retained EU PVRs that need to be migrated to the VTS, APHA is strongly advising holders of retained EU PVRs to provide the requested information well in advance of 1 January 2024.

If you need any assistance regarding confirming maintenance of your retained EU PVRs, please contact the author, or your usual Mathys contact.