By Graham Spencer .-
There has been a significant increase in activity in the UK Plant Breeder's Rights sector in recent months, triggered by the country's departure from the European Union.
These changes have led to a series of modifications, unfortunately resulting in confusion among breeders and stakeholders in our industry.
To offer some insight and provide answers to any possible doubts, we have developed a document that we hope will assist our members in navigating the changes that the United Kingdom is undergoing concerning PBR.
Fees
Early in 2023, the UK Animal and Plant Health Agency (APHA), which has responsibility for the administration of UK Plant Breeder’s Rights, provided information about a change to fees for UK PBR and National Listing applications. This included a substantial increase in some fees but provided very little notice of the change.
It soon became clear that APHA had not communicated the changes correctly or effectively – for example, there was no information about the changes on the APHA website. This attracted some adverse media coverage in the UK.
As a result, APHA has delayed the fee increase, so the old fees still apply. This was only communicated after the increase should have been implemented.
APHA has stated that they still plan to increase the fees, but the timing of this has not been stated. APHA will likely ensure that communication is more effective next time – we know that they now include the CIOPORA office in their communications. On the subject of the UK annual fee, there has been speculation for some time that APHA would increase the annual fee. The annual fee is currently zero for all crops, except a small number of agricultural species such as potatoes. At the time of Brexit, it was suggested that the annual fee would be increased in 2022. This did not happen.
The latest information we have received informally is that APHA’s workload is so great that they do not foresee having sufficient time to administer a change in the annual fee for at least three or four years. No information has been given about the possible level of the new fee, but it is speculated that it will be in the range GBP 100 to GBP 200 per year.
Retained EU Plant Variety Rights
As part of the Brexit process, all holders of European Union Plant Variety Rights that were granted and in force on 31 December 2020 were automatically granted a new UK Plant Breeder’s Right for the protected variety. These rights are known as “Retained EU Plant Variety Rights.”
The process for creating these new rights was free and automatic. APHA created a database of new rights based on data supplied to them by the CPVO. This data has not yet been entered into the main UK Registry.
The UK file number for each Retained EU PVR is the same as the EU grant number for that variety. The expiry date for the Retained EU PVR is the same as for the EU PVR. Rights holders should note that, if they have surrendered their EU PVR since 1 January 2021, their UK Retained EU PVR will still exist and be in force unless they have also surrendered their UK right. If the ownership of the EU PVR has changed since 1 January 2021, no change of ownership of the UK Retained EU PVR will have been recorded unless the rights holder submitted an APHA “PVS10” document.
Rights holders should also note that the contact information APHA received from CPVO did not necessarily include all contact details (for example, email addresses and telephone numbers may be missing) and has not been updated since 1 January 2021. It also did not include details of any procedural representative used by the rights holder.
In mid-February, APHA sent an email to all holders of Retained EU PVR for whom they have an email address. The email requested information from holders of Retained EU PVRs, including an indication of whether they wished to continue to hold their rights (an “opt-in”) and a request to supply a UK address or appoint a UK agent by 17 March. (In the UK, “agent” means the same as “procedural representative” before the CPVO – it is an administrative function).
The email contains some errors. I have been in contact with APHA, and they have confirmed the following:
The request to submit information by 17 March has no force in law. The deadline to appoint a UK agent or register a UK address is 31 December 2023. APHA want people to send data soon, because they do not want to get the information for all 30,000 Retained EU PVRs in December, but there is no legal obligation to do so. Given APHA’s known limitations in dealing with large administrative tasks in a limited time, it is recommended that rights holders appoint a UK-based agent or provide a UK address in good time.
There is no legal requirement to “opt-in”. The UK Retained EU PVR was granted automatically and without cost. The only requirement in law is for rights holders who are not based in the UK to provide a UK address or appoint a UK agent. This must be done using an official “PVS11” document – no other document is accepted.
The email also says that the term of the UK right is calculated according to the date of grant of the EU PVR. This is not correct. The expiry date of the new UK right is the same as the expiry date of the EU PVR. Note that the expiry date matches that which was in force at 31 December 2020, which was before the CPVO extended the term of rights for selected crops.
Any rights holder who does not appoint a UK agent or provide a UK address by 31 December 2023 will have their rights cancelled.
Rights holders based in the UK do not have to worry about any of this. They will have received the email from APHA, but APHA confirms that they do not need to take any action.
In addition, non-UK rights holders who have already appointed a UK agent or provided a UK address before this email was sent by APHA have also fulfilled their legal obligations and do not need to do anything. For peace of mind, they may want to reply to the email and say that they have already submitted their information – but do not expect a quick reply, as the APHA team is under-resourced.
Action points for holders of Retained EU PVRs:
Check the list of Retained EU PVR, ensure all their varieties are listed correctly.
Appoint a UK agent or inform APHA of a UK address soon (and no later than 31 December 2023), using the PVS11 document.
If a change of ownership needs to be recorded, this should be done as soon as possible using the PVS10 document.
If they wish to surrender any rights, that should be done by sending a letter on their official paper stating the wish to surrender together with the genus, species, denomination and the file number. The letter should be signed by an officer of the company, and in English.
Any of the documents mentioned here should be sent in PDF format to EUPVRtransferUKPBR@apha.gov.uk There is no need to send the original document, which should be kept on file by the rights holder.
Communications from APHA to rights holders
In late February, APHA sent another email to applicants and rights holders. This outlined changes in their policy on sending letters to applicants and rights holders.
In the future, APHA will only send letters to applicants to advise them of:
Grants of UK PBR (with the grant certificate);
Reasons for refusal of UK PBR or National Listing.
APHA will send an email to either the applicant or their agent to notify publication in the Gazette of proposed names and proposed decisions.
APHA will not send either letter or email in the following cases:
Awards for National Listing
Acceptance of applications
Proposed deletions
Proposed surrenders
Withdrawals
Information in these circumstances will only be published in the Gazette, which can be found here:
https://www.gov.uk/government/publications/plant-varieties-and-seeds-gazette-2020.
It is concerning that rights holders will not receive direct confirmation, by letter or email, in the event of deletion, surrender or withdrawal. It is, therefore, important to regularly check the Gazette to ensure no errors are made and no malicious activity occurs.
The UK Gazette is a difficult publication. For example, the Retained EU PVRs are not included in the main Gazette, but are held in a different file which is accessed from another page of the APHA website. Further, there is no searchable database – the “Special Edition” lists all varieties which have been granted UK PBR, but details of applications, proposed deletions, proposed surrenders and withdrawals are only listed in the monthly Seeds Gazette – and it is necessary to check every issue of the Seeds Gazette, because each edition only lists the changes and does not include cumulative information. This is time-consuming and vulnerable to error.
It is possible to be notified when new editions of the Seeds Gazette and Special Edition are published. Click on the link at the bottom of the webpage titled “Get emails about this page” – you will then receive a notification by email when a new document is added.
APHA officials have indicated that they intend to develop new software systems in the future to improve this situation. But no timetable for this has been announced.