The plants varieties are protected in France by a specific law differing from the patent law.
In France, the plant varieties protection is defined in the Intellectual Property Code (IPC).
The Act n° 2004-1338 of December 8, 2004 concerning Biotechnological Inventions has transposed in the IPC the only provisions of the European Community Directive n° 98/44 concerning vegetables. Unfortunately, the IPC articles concerning the new varieties of plants have not yet been modified.
THE FRENCH PLANT VARIETY CERTIFICATE (COV)
France is among the countries that have adopted a specific plant variety. As a consequence, since 1970, a patent right protection has been put aside in France.
Conditions for protection
Are subject to be protected by the French Plant Variety Certificat (COV), new varieties of plants, that have been created or discovered and that have a distinctive, a uniform and a stable character.
- Plant variety definition
According to article 1 vi) of the UPOV Convention, a plant variety is defined as “a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged”.
- Plant Variety Novelty
The variety shall be deemed to be new if it is not available to the public, that is to say, if it has not been previously disclosed to others (propagating or harvested material of the variety has not been sold or otherwise disposed of) or if it has not been the object of a previous protection demand.
- Plant variety creation or discovery
A plant variety can be protected if it has only been discovered. It means that the breeder has either stumbled upon a variety or found out about it as the result of a research, having in mind that it is a new variety unknown from him and from others.
- Plant variety distinctness
The variety shall be deemed to be distinctive if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge because of its important (important for the distinction), precise (that can be described without any ambiguity) and little changing (that is little influenced by the environment variations) character, or because of the combination of various characters that can be subject to give it its novelty status.
- Plant variety uniformity
The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
- Plant variety stability
The variety shall be deemed to be stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
The Plant Variety Certificate can be invalidated if these conditions are not met.
Granting procedure of the French Plant Variety Certificate
- Filing of applications requirements
Breeders have to apply for the COV protection by a request before the Plant Variety Protection Committee which depends froms the Ministry of Agriculture.
The request must contain information about the paid filing fees and the applicant’s wish to benefit from the twelve months right of priority as defined by the UPOV Convention.
A description of the way the variety was obtained or discovered, of the variety itself and its distinctive character must be joined to the request.
After being enrolled in the registry, the application is published in the Official Bulletin. If the Certificate (COV) is finally issued, this publication constitutes the starting point of the protection.
As from the publication date, the application can be opposed to third parties. It can also be used in infringement proceedings for later facts. In addition to that, from this date on and within two months, every person can file their observations and objections concerning the application.
These observations and objections are notified to the applicant who may answer within a period of time settled by the Committee.
The application is examined by the Committee as soon as published.
- Variety name
Breeders shall designate the variety by a name which becomes its generic designation. If no name is submitted by the breeder to the authority, the application is rejected (the rejection decision is subject to an appeal before the Paris Court of Appeal).
The name must enable the variety to be identified. It must not be liable to mislead or to cause confusion concerning the characteristics, value or identity of the variety or the identity of the breeder. In particular, it must be different from every other name which designates an existing variety of the same plant species or of a closely related species.
The name cannot be used as a trade or service mark. When a prior trademark exists and designates the variety, it becomes generic as of the issue date of the Certificate (COV) or the registration of the variety in the Official Bulletin. As a consequence, the trademark right becomes void.
However, when a variety is offered for sale or marketed, it is possible to associate a trademark, trade name or other similar indication with a registered variety name.
The use of the name to designate the concerned variety in every kind of commercial transaction is compulsory as from the publication date, even after the expiration of the breeder’s right for that variety.
- Examination of the application
An in-depth examination is made by botanical, agronomics and genetics experts. This examination requires a compliance with the conditions of novelty, uniformity and stability as described hereinbefore.
The Committee carries out the necessary tests and for this purpose may require the breeder to furnish all necessary information, documents or material.
At the end of the examination, a report is issued by the Committee. The applicant has two months to express his observations.
Once the previously described two months period has expired, the Committee can either issue the Certificate or reject the application or even initiate a supplemental examination.
The decisions are agrounded and subject to an appeal before the Paris Court of Appeal.
When the Committee grants the protection, the certificate is issued and comprises the variety’s name and description.
THE EFFECT OF THE PLANT VARIETY CERTIFICATE
Duration of the French Plant Variety Certificate
The protection starts as from the granted of the certificate issue and for a maximum period of 25 to 30 years depending on the species. In order to maintain the protection into force, the holder must pay annual fees.
The breeder must permanently preserve a vegetative collection of the new protected variety in order to allow any further verification of its protection in case a nullity action of his rights is brought against him. If no collection is preserved, the breeder incurs the loss of his rights.
The breeder’s rights
The COV holder benefits from an exclusive right on the protected plant variety . As a consequence, producing, importing, selling or offering for sale all or a part of the plant variety, require the breeder’s authorization.
Varieties whose production requires the repeated use of the protected variety are also covered by the breeder’s rights.
The COV holder can exercise his rights against persons that produce, import and sell the new variety plant without his authorization. An infringement action may be taken against them.
Hitherto, the COV holder exclusive rights are limited since a protected variety can be freely used in order to obtain a new variety. This is called the breeder’s privilege.
FRENCH PLANT VARIETY CERTIFICATE INFRINGEMENT ACTION
The COV holder and, under certain conditions, an exclusive licensee may bring an infringement action before THE courts.
To this end, the COV holder must justify the existence of a valid certificate. He has to demonstrate that the annual fees have been regularly paid.
When an infringement action is taken on the basis of a published COV application, a certificate copy of the application must be notified to the alleged infringer before bringing the action before the courts. The Court will stay the proceedings until the Certiicate is granted.
The status of limitatio is of three years.
Only ten specialized Courts have jurisdiction to hear litigation matters relating to Plant Variety Certificates.
Infringement facts can be proven by any possible means. The "saisie-contrefaçon" (infringement seizure) procedure can be used to gain evidence. The plaintiff can also request the Court to summon the alleged infringer to produce every document or information allowing the determination of the origin and distribution networks of the infringed products.
The Court may order an immediate injunction to cease infringement, destruction of the infringing goods and provisional or permanent withdrawal from the commercial circuit.
Damages may also be allowed as a reparation.
As an alternative, a fixed sum based on licence fees can be paid to the holder of the COV.