Protection of Plant Varieties in Norway under the Plant Breeder’s Right

Introduction

Plant breeder’s right provide protection of plant varieties, which is excluded from patenting under Art. 53(b) EPC. The plant breeder’s right is administered by the Plant Variety Board in Norway. The legal framework for plant breeder’s right is based on the International Convention for the Protection of New Varieties of 1978. The Norwegian Act Relating to the Plant Breeder’s Right and the accompanying Regulations both came into force 15th September 1993. Norway is a member of Union pour la Protection des Obtentions Végétales (UPOV).

Procedure for obtaining protection of plant variety rights

According to the Plant Variety Board, a total of 20 to 45 plant variety cases are granted protection annually. Instead of evaluating plant breeder’s right applications continuously as they are filed, the Plant Variety Board conducts three to four meetings every year where they review the applications and grant legal protection.

A plant breeder’s right application is filed directly to the Plant Variety Board. The application form is in Norwegian, and the application process is conducted in Norwegian. An application fee is payable to the Norwegian Food Safety Authority prior to registration of the application.

It is also possible to file the application using the electronic application form provided by UPOV. An additional fee is due if this filing option is used. Furthermore, these applications are limited to applications for apple, potato, lettuce, rose and soya bean varieties.

Annual maintenance fees are due each year starting the year after grant of protection.

The breeder must be a resident or have their registered office in Norway or be a national of or resident or have their registered office in a UPOV or WTO member state (Plant Breeder’s Right Act Section 1, 3rd Paragraph and Plant Breeder’s Right Regulations Section 2, 1st Paragraph).

The application can claim priority from another plant variety application in another UPOV member state. The application must be filed within 12 months from the filing date of the priority application (Plant Breeder’s Right Act Section 2, 3rd Paragraph).

Requirements for obtaining protection of plant variety rights

The following criteria are examined in order to obtain protection: proposal for plant variety name, prior distribution of the plant variety, and novelty.

A plant variety name suitable for distinguishing the plant variety from other plant varieties must be provided as part of the plant breeder’s right application. The proposed name will be published together with the application prior to grant in case there are any objections.

The plant variety cannot have been sold or offered for sale in Norway prior to the filing date (Plant Breeder’s Right Act Section 2, 1st Paragraph litra d)(1)). Any sale or offer for sale abroad is permissible if it happened less than six years prior to the filing date for trees and vines1 or less than four years prior to the filing date for other plants (Plant Breeder’s Right Act Section 2, 1st Paragraph litra d)(2)).

The novelty criterion comprises testing the plant variety in accordance with three criteria: distinctness, uniformity and stability (Plant Breeder’s Right Act Sections 2, 1st Paragraph litra a), b) and c)). This testing is known as DUS testing. The Board often buys DUS reports from other UPOV members. As of spring 2020, the Board has decided to take advantage of their right to charge the applicant for this service in order to cover their own expenses of purchasing the report.

Scope of protection of plant variety rights

The breeder can prevent third parties from producing or importing plant material of the plant variety with a view to offering it for sale, or otherwise marketing it for purposes of propagation (Plant Breeder’s Right Act Section 3, 1st Paragraph). Third parties are also required to obtain permission from the breeder if they intend to commercially produce cut flowers or ornamental material from reproducing protected propagation material or plants (Plant Breeder’s Right Act Section 3, 2nd Paragraph).

Private use is not covered by the scope of protection, neither is sale of products such as fruits and vegetables. The protection does not extend to use of the plant variety for developing a new plant variety as long as the protected variety is not repeatedly required for producing the new variety (Plant Breeder’s Right Act Section 3, 3rd Paragraph).

The protection lasts for up to 20 years calculated from the year after the year of grant provided the annual fees are paid (Plant Breeder’s Right Act Section 13, 1st sentence and Section 14, 1st Paragraph). However, trees and vines1 enjoy 25 years of protection calculated from said year (Plant Breeder’s Right Act Section 13, 1st Paragraph, 2nd sentence).

The applicant obtains provisional protection from the date of publication of the application provided that protection is granted (Plant Breeder’s Right Act Section 25).

Appeal

If the Plant Variety Board makes a final decision going against the applicant, the applicant has the right to file an appeal at the Norwegian Board of Appeal for Industrial Property Rights. If the Board of Appeal rejects an application after the appeal, the applicant may appeal to the City Court of Oslo (Plant Breeder’s Right Act Section 12 and Section 29).

Concluding Remarks

The number of plant variety applications in Norway is low, but the application process is relatively simple as the Plant Variety Board often base their evaluation on DUS reports from the authorities in other Convention states. Depending on the type of plant variety, the protection can last up until 20 or 25 years.

If you have questions related to plant variety protection or intend to file a plant variety application in Norway, feel free to contact Bryn Aarflot in order to receive assistance in the matter.

1 Section 2 d)(2) and Section 13, 2nd sentence of the Act Relating to the Plant Breeder’s Right state “trees and vines”, whereas the preparatory work states “trees and tree-like growths”. It is likely that any borderline cases will be assessed on a case-by-case basis to decide if they are defined as “trees and vines”).

Written by Live Marie Hansen

Photo by Markus Spiske on Unsplash