Plant breeder’s rights: What a Chinese court’s ruling means for UK growers

A record-breaking ruling by a Chinese court has demonstrated the importance of farmers and arable businesses protecting their unique plant products.

Thrings’ IP expert Megan Jefferies takes a look at the case and what farmers can do to protect their plants from copycats.

What are Plant Breeder’s Rights?

Plant Breeder’s Rights (PBRs) as they are known in the UK, or Plan Variety Rights (PVRs) as they are often referred to in other countries, are a form of intellectual property that protects new plant varieties (including genetically modified varieties), giving the breeders exclusive control over the commercialisation of their growth and the ability to collect royalties.

A PBR means that nobody can, without the permission of the breeder, produce or reproduce the plant species, sell or offer it for sale, alter it for propagation, export or import it or keep stock of it for any reason.

New varieties must be checked to confirm they are distinct, uniform and stable to qualify for protection from the Animal and Plant Health Agency (APHA), which lasts for 25 years for plants and 30 years for trees, vines and potato varieties.

Applications can also be made for protection in other countries, running in parallel to the protection they would receive in the UK.

What happened in China?

The case centred around allegations of infringement of the ‘Scilate’ apple variety, managed by New Zealand-based fruit grower ENZAFruit and trade marked as ‘Envy’, with unauthorised production and sales taking place in China post the variety’s launch into the market in 2023.

An initial finding of plant variety infringement was made by a lower Chinese court in November 2023, but was then escalated to the Supreme People’s Court, with the ruling upheld in February this year and compensation awarded of £319,000 – almost six times the average total damages for such an infringement according to the Standing Committee of the National People’s Congress.

What does this mean for UK plant breeders?

Despite being a ruling by a foreign court on a non-UK dispute, this case demonstrates the international interest in protection of plant varieties from imitation or exploitation.

With breeders being able to apply for PBRs/PVRs from any EU member state or any member of the Union for the Protection of New Varieties of Plants (UPOV), being in a position where you can successfully defend your rights as ENZAFruit did in this case.

What else should breeders wanting a PBR do?

• Apply in other countries – If your protected variety is one that is at risk of international exploitation, as Envy was, make sure you are covered with applications for PBRs/PVRs in all relevant nations to ensure your IP remains safe.
• Be vigilant – the plant market is well-saturated with many producers of all sizes active at any one time. If you have a PBR over a particular variety of plant, be sure to monitor the market for any imitators.
• Seek legal advice – Having the support of a legal advisor will not only ensure your protections are set up in a comprehensive and robust fashion but also gives you the best possible standing in the event someone does infringe on your rights.

Thrings’ Intellectual Property lawyers are experienced in safeguarding brands and trade marks from infringement and have successfully advised multinational organisations on a range of matters from IP disputes, including copyright infringement, and trade mark prosecution, to managing diverse portfolios and worldwide expansions. To find out how they can help protect your IP rights, get in touch.