FOCUS

Plant varieties

Definition

A new plant variety can be protected with a patent, when it is homogeneous, stable and different from other, already existing varieties. By variety, we mean a group of plants of a single botanical taxon of the lowest known level which, conforming completely or not to the conditions laid down in order to confer a right, can be:

• defined by the expression of the characteristics resulting from a given genotype or from a given combination of genotypes;
• distinct from any other plant group by the expression of at least one of the characteristics above; and
• considered as a unit suitable to multiply unvaried.

A plant group consists of whole plants or plant parts, to the extent that said plant parts are able to produce whole plants, both denominated "variety constituents".

In Italy, the Italian Patent and Trademark Office gives notice that the application of a patent for a plant variety has been filed by displaying a notice on its bulletin board for 60 days after receiving all the documentation presented. The documentation is made available to the public and during this period third parties may make their comments. When these 60 days have passed, and in the following 30 days, after having verified that the application is receivable and formally correct, the Italian Patent and Trademark Office forwards the application, with the relative documentation attached, to the Ministry of agriculture, food and forests, so that the necessary preliminary formalities can be carried out. The outcome of said verifications is subjected to a special Commission, which decides whether to issue the patent or not.

For a variety to be protected, it must necessarily be:

• new,
• distinct,
• homogeneous,
• stable.

Requisites

A variety is new when, at the date when the application is filed, the material of vegetative reproduction or multiplication, or a harvested product of the variety, has not been sold, or delivered to third parties in some other way, in order to exploit the variety:

1. on Italian territory for more than 1 year from the date on which application was filed;
2. in any other country for more than 4 years or, in the case of trees and vines, for more than 6 years.

A variety is considered distinct when it clearly distinguishable, by means of the expression of the characters resulting from a particular genotype or combination of genotypes, from any other variety which is known at the date the application is presented.

The existence of another variety is considered to be known particularly if, at the date of presentation of the application:

1. this variety has been protected by a protection right of the new varieties or has been registered in an official register of plant varieties, in the EU or in any other country or within the framework of an inter-government organization operating in this field;
2. there has been an application for this variety for the grant of a protection right of the new plant varieties or it has been registered in the official register cited above, on condition that in the meantime the application has been accepted.

A variety is considered homogeneous if, except for the variation which can be expected from the particular characters of its multiplication, it is sufficiently homogeneous in the expression of the characters included in the examination of distinction, and also of other characters used to describe the variety.

A variety is stable when the characters pertinent and relevant for the purposes of protection remain unvaried after the successive reproductions or multiplications or, in the case of a particular reproduction or multiplication cycle, at the end of every cycle.

The authorization

The authorization of the person entitled is required for the following acts committed with regard to the reproduction or multiplication material of the protected variety:

1. production or reproduction;
2. conditioning for the purposes of reproduction or multiplication;
3. offering for sale, sale or any other form of marketing,
4. import or export;
5. possession for any of the above purposes.

Such authorization is necessary for the acts cited above made with regard to the harvested product, including whole plants or plant parts, obtained by the non-authorized use of reproduction or multiplication materials of the protected variety, unless the producer of the new variety has been able to reasonably exercise his rights with regard to the afore-mentioned reproduction or multiplication material. Use is presumed to have been unauthorized without proof to the contrary.

Characteristics of the right

The right lasts 20 years starting from the date it is granted. For trees and vines, the right lasts 30 years from the grant. The effects of the exclusive right start from the date when the application, accompanied by the descriptive elements, is made accessible to the public. For those persons to whom the application, accompanied by the descriptive elements, has been notified, the effects of the exclusive right start from the date of such notification.

The right does not extend to those acts involving material which has been sold, or otherwise marketed, by the person entitled to do so, or with his consent, on Italian territory, or every other material deriving from said material, unless such acts imply a new reproduction or multiplication of the variety in question or imply the export of the material of the variety which allows the variety to be reproduced in a country which does not protect the variety of the genus or the plant species to which it belongs, except when the material exported is intended for consumption. Material means:

1. the reproduction or multiplication material of the plant, whatever form it may be;
2. the produce of the harvest, including whole plants and parts of plants;
3. any product made directly starting from the products of the harvest.

Finally, a further characteristic of this right is the obligation to designate a new denomination able to identify the plant variety. The denomination cannot consist only of figures – unless that is the practice already adopted – and must not lead the consumer to make a mistake, or cause confusion, with regard to its characteristics.

NB

The norms which regulate patents are applied to the new plant varieties, on condition that they are not in contrast with the specific norms laid down for plant varieties.