Introduction

Plant breeders' rights provide protection of plant varieties, which are excluded from patenting under Article 53(b) of the European Patent Convention. In Norway, plant breeders' rights are administered by the Plant Variety Board. The legal framework for plant breeders' rights is based on the International Convention for the Protection of New Varieties 1978. The Plant Breeder's Right Act and its accompanying regulations took effect on 15 September 1993. Norway is a member of the International Union for the Protection of New Varieties of Plants (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 in Norway annually. Instead of evaluating plant breeders' rights applications as they are filed, the Plant Variety Board conducts three to four meetings every year during which it reviews the applications and grants legal protection accordingly.

Plant breeders' rights applications are filed directly with the Plant Variety Board. Application forms are in Norwegian and the application process is also conducted in Norwegian. An application fee is payable to the Norwegian Food Safety Authority prior to the registration of the application.

It is also possible to file an application using a UPOV electronic application form. An additional fee is due where this filing option is used. Further, 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 the grant of protection.

The breeder must be a resident of or have their registered office in Norway or be a national or resident of or have their registered office in a UPOV or World Trade Organisation member state (Section 1(3) of the Plant Breeder's Right Act and Section 2(1) of the Plant Breeder's Right Regulations).

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 (Section 2(3) of the Plant Breeder's Right Act).

Requirements for obtaining protection of plant variety rights

The following criteria are examined to obtain protection:

  • the proposal for the plant variety's name;
  • the prior distribution of the plant variety; and
  • the plant variety's novelty.

Name

A name that is able to distinguish the plant variety from other plant varieties must be provided as part of the plant breeder's right application. The proposed name is published together with the application prior to grant in case there are any objections.

Prior distribution

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

Novelty

The novelty criterion comprises testing the plant variety in accordance with three criteria (Sections 2(1)(a) to 2(1)(c) of the Plant Breeder's Right Act) – namely, distinctness, uniformity and stability (DUS). 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 to cover their expenses of purchasing the report.

Scope of protection of plant variety rights

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

Private use is not covered by the scope of protection and neither is the sale of products such as fruits and vegetables. The protection does not extend to the 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 (Section 3(3) of the Plant Breeder's Right Act).

The protection lasts for up to 20 years from the year after the year of grant, provided that the annual fees are paid (first sentence of Section 13 and Section 14(1) of the Plant Breeder's Right Act). However, trees and vines(2) enjoy 25 years of protection (second sentence of Section 13(1) of the Plant Breeder's Right Act).

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

Appeal

If the Plant Variety Board decides against the applicant, the applicant has the right to file an appeal with the Norwegian Board of Appeal for Industrial Property Rights. If the board of appeal rejects the application after an appeal, the applicant may appeal to the City Court of Oslo (Sections 12 and 29 of the Plant Breeder's Right Act).

Comment

While few plant variety applications are filed in Norway, the application process is relatively simple as the Plant Variety Board often bases its evaluation on DUS reports from authorities in other convention states. Depending on the type of plant variety, the protection can last for 20 or 25 years.

Endnotes

(1) Section 2(d)(2) and the second sentence of Section 13 of the Plant Breeder's Right Act refer to "trees and vines", whereas the preparatory work refers to "trees and tree-like growths". It is likely that any borderline cases will be assessed on a case-by-case basis to decide whether they can be defined as 'trees and vines').

(2) See (1).