After Brexit: Transfer of Rights, PVR Fees, DUS Examination & UK Representation
December 24, London/Brussels – Following the Withdrawal Agreement between the UK and the EU from October 19, on December 24, the parties also produced the Trade and Cooperation Agreement concluding the UK’s withdrawal process from the Union. The latter contains new rules for cooperation and trade between the EU and the UK as well as a range of economically important areas such as IP. Section 6 refers exclusively to Plant Variety Protection and the obligation of parties to protect plant varieties in accordance with the 1991 Act of UPOV. It also includes a section on Border Measures, including the commitment by each party to adopt or maintain procedures to suspend the release of suspected infringing goods under the customs control.
When it comes to trade, the new agreement provides for zero tariffs and zero quotas on all goods that comply with the appropriate rules of origin. Nonetheless, there may be potential delays at the borders due to additional paperwork and the newly introduced checks. Learn more about new trade procedures and rules here.
Picture: Christian Lue, Unsplash.com
As set out in the Withdrawal Agreement (see also the CIOPORA Guide on Brexit, the Deal-Version), the following rules and prospects will apply in the area of Plant Variety Protection:
Continued protection in the United Kingdom of registered or granted rights: according to Article 54 of the Withdrawal Agreement, plant varieties with EU rights granted in force at the end of the Transition Period (December 31, 2020) are given the corresponding UK right for the same plant variety. The duration of protection of transferred rights will be equal to the remaining lifespan of the EU right. In mid-January, DEFRA has confirmed to CIOPORA that the UK had received the full list of titles eligible for the UK title transfer from CPVO on December 21. The information for the titles filed or granted between December 21 and 31 will be provided by CPVO prior to the next official February update. DEFRA currently intents on publishing the complete lists in late February.
Right of priority with respect to pending applications for Community PVR: according to Article 59 (2) of the Withdrawal Agreement, where an application for a Community PVR was filed before the end of the transition period (December 31, 2020), an ad hoc right of priority for the same PVR in the United Kingdom will apply to the applicant during a period of six months from the end of the transition period.
PBR maintenance fees: There is currently no annual charge for the maintenance of the UK PVR in place, however, as reported by DEFRA, this will be reviewed as part of a wide-ranging fees review to be conducted in 2021. Should any changes be implemented for holders of PVR they will be informed prior to them being implemented and ahead of charges becoming due. Should any decision be made to implement annual charges for PVR, titleholders will have the option to cancel their PBR at no cost prior to any charges being made. Updates will be published on this website.
DUS examinations: The UK will only accept the EU Distinctness, Uniformity and Stability (DUS) reports for species where there is no UK testing capability, and provided they are of comparable quality to the UK DUS reports.
Agent in the UK: For CPVRs granted before the end of the transition period (Dec 31, 2020) and given the corresponding UK right, no agent will be required before January 1, 2024. For the UK PBR applications lodged after Dec 31, 2020, a domicile/agent in the UK is required.
Urgent reminder on Brexit by CPVO
In its January newsletter, the CPVO has reminded its UK applicants and titleholders about the mandatory appointment of an EU procedural representative after the end of the transition period. To avoid inititation of cancellation or application refusal procedures, those UK applicants and titleholders who still need to appoint such a representative should do so within a month from receiving a notice from the CPVO. Other applicants and titleholders from third countries but still being represented by a UK-based procedural representative need also to appoint a procedural representative in the territory of the EU.
Upon the enquiry by CIOPORA, the CPVO commented that no UK DUS report takeover was currently foreseen but may become possible in the future. According to Article 27.4 of the CPVR Regulation, to determine whether foreign DUS reports for certain species can be accepted, the CPVO must run a technical assessment followed by a decision of its Administrative Council (AC).
The CPVO will liaise with the Commission and the AC on a strategy in this respect.
CIOPORA members are invited to submit to the CIOPORA office information on species with a specific interest in a UK DUS report takeover. If enabled, the UK DUS report takeovers will follow the procedure established for other third-country reports.
Please check a summary of the new rules here.