Cultivating protection: The UK system for plant breeders’ rights

Plant breeders’ rights (PBRs) are a tailored form of intellectual property (IP) protection for new plant varieties, including genetically modified varieties. Although it is possible to secure patent protection for certain aspects of plant-related innovation, PBRs are the best route to IP protection for the new cultivars themselves, since plant varieties per se are not patentable in Europe. Further, PBR law imposes no inventive step requirement, which can make the system a more accessible way to secure IP protection. Although PBR systems around the world are broadly harmonised though the Convention of the International Union for the Protection of New Varieties of Plants (UPOV), the legal and procedural frameworks can nonetheless vary between countries. In this article, we highlight some of the key features of the current UK regime for plant variety protection, and underscore strategic considerations for managing PBRs as part of an international IP portfolio.

Filing strategy and eligibility criteria for plant varieties

Prior to 31 January 2020 when the UK left the EU , European plant variety rights automatically covered the UK. However, post-Brexit, the UK operates a fully independent PBR regime from the rest of Europe. The UK system has therefore grown in significance as it can no longer be treated as merely an extension of EU filings. Practically speaking, this means that applicants must file separately for coverage in the UK. 

Although now separate from the EU, the UK system remains harmonised in substance through its adherence to the UPOV Convention. As a result, the UK applies the same key ‘DUS’ criteria for plant variety protection. That is, the variety must be:

• Distinct in that it has at least one important characteristic which differs from other varieties;
• Uniform in that these characteristics are shared between individuals; and
• Stable in that it remains unchanged after repeated propagation.

In addition, the variety must also be new. There is no requirement for inventive step. Further, whereas for an invention to be patentable, it must be novel in that no disclosure has occurred prior to filing, a plant variety is novel if it there has been no commercialisation of said variety in the UK more than one year prior to filing, or outside the UK more than four years prior to filing. This extends to six years for tree and vine species.

To file and generally manage the application, it is possible to appoint an agent. However, if the applicant or agent applying for the PBR is not based in the UK, it is necessary to appoint an authorised UK agent to handle the application on their behalf before the Plant Variety Rights Office (PVRO).

Once an application has been filed and the relevant administration and testing fees have been paid, the UK’s Animal and Plant Health Agency (APHA) will assess the variety to adjudge whether it meets the DUS criteria. DUS testing can take from one to four years depending on the variety to be tested, as some varieties may take longer to breed than others. The UK has DUS testing capacity for a range of species. If UK DUS testing is available, it is necessary to obtain a UK DUS test report from an approved test centre. However, the UK is largely reliant on the EU for testing a large number of species for which there is no capacity in the UK, including agricultural, amenity, vegetable and ornamental species. Therefore, for these species, the UK will accept EU DUS reports. This means that applicants can apply for EU and UK PBRs in parallel, and use the EU DUS report to move the UK right to grant. Thus, UK PBRs may grant after EU PBRs, unless a UK DUS report is required.

Scope of protection conferred by PBRs

Once a PBR is granted, renewal fees are currently only payable in the UK for a selection of plant varieties, including potatoes, herbs, and ornamental species. This differs from the EU, which requires annual renewal fees to be paid for all PBRs. It is possible that renewal fees may be introduced in the future, but for now, subject to the payment of any required renewal fees, PBRs can remain in force for 25 years (or 30 years for trees, vines and potatoes) from grant, until the right is surrendered or invalidated.

The exclusive rights conferred by a granted PBR largely mirror those of a patent proprietor, but with features specifically tailored to plant material. The scope of protection is broad and extends from the date that the application is lodged with the PVRO, not just from grant. This means that applicants benefit from provisional protection, enabling enforcement once rights are ultimately granted. Without the breeder’s authorisation, third parties are prohibited from carrying out key commercial acts in respect of the protected variety. This includes producing or reproducing, propagating, offering for sale, selling or marketing, exporting, importing or stocking the plant variety. These rights apply not only to the initially claimed variety, but also in some circumstances to essentially derived varieties (EDVs) and other varieties that are not clearly distinguishable from the initial variety. EDVs are adaptations of a variety which conform to the essential characteristics of the initial variety.

Enforcing PBRs

Importantly, certain exemptions exist to infringement of PBRs. Firstly, the breeders’ exemption states that it is not an infringement of the rights conferred by a PBR to use the protected variety for the purposes of breeding and experimental purposes to discover new varieties. Therefore, it is not an infringement merely to create the initial variety, or even an EDV, provided that it is for the purpose of developing new varieties. A further exemption to infringement is farm-saved seed, which permits the re-use of seed planted on a farmer’s own land using seeds harvested from their own holding, provided there is no marketing, purchasing or transfer of the seed between different businesses. 

Outside of the exemptions to infringement, PBR holders can enforce their rights through the UK civil courts where there is actionable infringement. Remedies include, among others, injunctions, damages or account of profits. Where necessary, strategic enforcement should take into account the commercial life cycle of the protected variety and the evidential challenges which may come with proving unauthorised use.  

Notably, the significance of PBRs as enforceable rights was underscored in a recent UK High Court decision, which highlighted the active role of national courts in PBR enforcement. In Nador Cott Protection v Asda [2025] EWHC 941 (Pat), the court refused to stay (i.e., pause) infringement proceedings pending the outcome of the PVRO’s assessment of the validity of the Nadorcott PVR. If the UK courts are willing to move ahead irrespective of the PVRO’s adjudication on validity, PBR applicants and would-be infringers should be prepared for litigation even where validity is under review. 

Summary

The UK PBR system offers an independent and internationally aligned mechanism for protecting plant varieties. For plant breeders operating internationally, the UK remains a valuable jurisdiction in its own right as part of a global IP strategy. The UK system is harmonised in substance with UPOV standards, and the use of recognised EU DUS reports can sometimes simplify dual EU/UK filings. In combination with the low cost of obtaining and maintaining 25-to-30-year term PBRs, the proactive enforcement framework makes the UK system commercially attractive to plant breeders across the globe. Indeed, recent jurisprudence indicates that English courts are prepared to uphold and enforce PBRs even where validity assessments are ongoing.

To ensure complete and enforceable protection in the UK, clients should make the most of a UK representative to avoid gaps in protection and align PVRs with their broader IP strategy. GJE’s biotechnology group have expertise in dealing with both UK and EU PVRs. If you would like to discuss your plant-related innovation and PVRs, please contact us at biotech@gje.com.