PRACTICE GUIDANCE ON THE TRANSITION PERIOD IN THE WITHDRAWAL AGREEMENT – COMMUNITY PLANT VARIETY RIGHTS

Published: 3 February 2020
CIPA has updated its Brexit advice to members, prepared by Alicia Instone, CIPA Vice-President and Chair of the Designs and Copyright Committee with help from Julia Florence, CIPA Immediate Past President. 
The UK IPO have issued new guidance on intellectual property during the transition period. To find out more, click here. 
NB: The Transition Period is currently set to end on 31 December.

During the Transition Period it will be “business as usual” for Community Plant Variety Rights before the CPVO.

Community Plant Variety Rights will be able to be filed at the CPVO by the same people who can currently file Community Plant Variety Rights at the CPVO and they will be effective in all 27 Member States of the EU plus the UK. 

If there is no future economic agreement at the end of the Transition Period that supersedes the Withdrawal Agreement Community Plant Variety Rights granted two months before the end of the Transition Period, will be protected under UK law becoming UK Plant Variety Rights.

If you have already applied for Community Plant Variety Rights and either the application is still pending or the rights have been granted less than two months before the end of the Transition Period, you will need to apply to the Animal and Plant Health Agency (APHA) for rights to protect the variety in the UK. This is due to the EU having a two-month appeal period and APHA cannot protect varieties in the UK which might be subject to an appeal.

In either case if you apply for rights within six months of the end of the Transition Period, you can use the same distinctiveness, uniformity and stability (DUS) test.

The EU will continue to recognise EU plant variety rights granted to all breeders before the end of the Transition Period.

Practice Point: if you currently look after any granted Community Plant Variety Rights make a note to check that they have brought over onto the UK register.

Practice Point: if you currently look after any Community Plant Variety Rights that have only been granted in the last two months before the end of the Transition Period or are still pending at the end of the Transition Period, diarise a six-month deadline from the end of the Transition Period for applying to the UK scheme should protection in the UK be desired. You will be able to use the same distinctiveness, uniformity and stability (DUS) test. If the variety is not distinct from an independently bred variety, priority will be decided using the date of the application for EU rights.