Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.
Turkey received 682 PBR applications from 1994 to the end of the 2012 with an annual average increase rate of 60% of the last two years. In these filing numbers, foreign right owners, especially from Hollond, France and Spain, represent 58% of this total; which apparently indicates that they take advantage of this valuable IP asset in competition through this emerging market in a critical geographical location.
Before some helpful tips, it would be good to start with an overview of Turkish PBR legislation and general information. Further details about statistics and enforcement are given at the end of the article.
Turkish PBR legislation
Plant varieties are protected by Turkish PBR Law No: 5042 in Turkey in compliance with an implementation regulation and a national variety list including the list of plant species for which PBR is accessible in Turkey. Turkish PBR Law is effective since January 2004, which is in full compliance with the 1991 Act of the UPOV Convention, and Turkey became 65th member of UPOV Convention on 18 November 2007. Hence, it is a quite new and questioned field of IP for Turkey for most of the followers like foreign breeders.
The applied variety shall have the following general requirements for variety protection: novelty, distinctness, uniformity, stability and denomination.
As for the novelty requirement, a variety shall be deemed to be still novel where the application has not been commercialized or filed abroad more than four years earlier (six years for trees and vines) for foreign breeders. If they commercialized in Turkey, the novelty term is one-year only.
Depending Food, Agriculture and Livestock Ministry in Turkey, General Directorate of Crop Production and Development (BUGEM) is entrusted with the operation of PBR in Turkey. As a technical evaluation institution, Variety Registration & Seed Certification Centre (TTSM) is responsible for technical examination issues.
After this introduction, here ten tips to underline how and why an applicant register and watch a variety:
Ten tips for protecting your plant varieties
1. When to file an Application
No deadline for filing an application is available as long as the variety has never been made public or offered for commercial use. However, a variety shall be deemed to be still novel where the application has not been commercialized or filed abroad more than four years earlier (six years for trees and vines) for foreign breeders. If they commercialized in Turkey, the novelty term is one-year only.
2. Take advantage of priority
Priority term is one year after filing the first PBR. It is possible to apply for a variety with priority because of the fact that the applicant who claims the priority of a previous application is entitled to deferment of the Turkish trials until the DUS tests have completed and to use these results for the Turkish PBR application.
3. Plant Variety Description / Technical Examination (DUS tests)
DUS tests are carried out by TTSM in Turkey. The purpose of DUS tests are to confirm whether the variety belongs to declared botanical classification, to determine whether the variety has different characteristics of distinctness, uniformity and stability, and if the variety comply with the conditions of a and b, to prepare the variety description document.
4. What to file with an application
The application shall have information about applicant/breeder/variety/payment particulars with photos of the variety in color. The photos should reflect the characteristics and specific features of variety clearly. The application shall contain the documents (a copy of invoice and a declaration) in connection with first commercial use.
The application also shall contain the priority document if claimed and DUS tests. In case DUS tests had been already completed by a PBR Office in a member state of UPOV Convention; TTSM will ask it from the PBR Office. If the applicant is not the breeder, an assignment shall be supplied. Foreign applicants must appoint a professional representative to file PBR applications and a notarized power of attorney signed by the applicant should also be submitted.
5. What procedural stages of PBR prosecution
All PBR applications are to be formally examined on the availability of filing requirements and entitlement. Non-extendible 1 month period is allowed for the applicant to overcome deficiencies in the application. Then, the application is subjected to a substantive examination as to (1) novelty, (2) applicant rights and (3) variety denomination. If application fulfills the above mentioned requirements, application number and date are published for 3 months for the opposition of third parties. In case of any opposition, BUGEM issues an official letter and invites the applicant to file a response in 3 months.
The applications having completed DUS tests may enjoy the right for avoiding technical examination stage, in case the said tests submitted to BUGEM during filing stage. Otherwise, the examination will be conducted by TTSM in Turkey. Ministry shall enter the breeder’s right and denomination in the Register and supply the holder a certified Breeder’s Right Document based on the test results. The grant of the Breeder’s right for a protected variety shall be published in the bulletin within 30 days from the date of grant for oppositions.
6. Obligation of use and compulsory license
According to the implemantation regulation, the right holder is obliged to use the protected variety in commerce in Turkey and file certified documents to BUGEM within three years as from the date of grant publication in PBR bulletin.
Otherwise any interested person or Ministery may request the granting of a compulsory license for plants protected by PBR rights in Turkey. The compulsory license can be granted on the grounds of public interest, at the end of the 3rd year from the grant of breeder’s right.
7. Denomination of plants
The denominations shall consist of one or more words, meaningful or meaningless, word and figures, or letter and figures, provided that the variety can easily be recognized. The denominations submitted should not contain indications, which may hamper the entitlement for marks for the products of the variety in question, in accordance with the Turkish Trademarks Legislation. The applications should be made with the denomination designated in the cases where the denomination is registered and used in Turkey or in a country that is a party to the UPOV Convention.
8. Professional representatives
If the applicant has no residence in Turkey, the applicant needs a representative having residence in Turkey.
9. Duration of protection
The duration of protection is 25 years from the grant of the right. For trees, vines and potatoes, this period is 30 years.
10. Do not ignore the PBR protection
The right owners need to closely monitor the distributors’ and competitors’ and bad faith people’s conduct and take steps to enforce their rights, when they consider that they’re being infringed, with provable arguments and claims to enforcement by taking advantage of PBR protection. Without the permission of the breeder/right owner, producing, selling, distributing of the protected variety, or placing on the market or exporting and importing for these purposes constitute infringement of the protected variety. For these reasons, in order to make the enforcement process more efficient, registering the varieties by PBR is really important.
A few words on PBR statistics
The BUGEM received 122 filings in 2012 which is the highest number of all times. Last two years 2011 and 2012, %59,2 increase has been realized compared to the previous two years 2009 and 2010 (see table). Accordingly, the BUGEM registered more varieties in 2011 and 2012 than 2009 and 2010, with certificates increasing 36,9%.
The most popular varieties of PBR applications are field crops (46%), fruits (29%), vegetables (14%) and ornamentals (11%). Design applications for these most demanded five areas represented about 60% of total design applications received in the year 2002.