Home > Topics > Patents and Patenting: Balancing Protection with the Public Domain > Protecting New Plant Varieties through PVP: Practical Suggestions from a Plant Breeder for Plant Breeders > Editor's Summary, Implications and Best Practices

This chapter provides a clear, detailed explanation of how to obtain a U.S. Plant Variety Protection (PVP) certificate. Although focused on the U.S. PVP application procedure, the chapter is also generally useful for illustrating the principles, preparations, and procedures for applying for and obtaining a PVP certificate. This is because the U.S. provisions of the PVP Act of 1970 closely follow the model developed by the Convention of the International Union for the Protection of New Plant Varieties (UPOV). Moreover, the UPOV template has been or is being adopted by many nations worldwide. The principles provided in this chapter, therefore, can be generally helpful to plant breeders in any country with Plant Breeders Rights legislation modeled after the UPOV model. But be careful not to assume too much. Anyone considering applying for a PVP certificate should become thoroughly familiar with their own country’s laws and application procedures, as these might (and likely will) vary from jurisdiction to jurisdiction.

To obtain a PVP certificate, plant breeders need to know how to develop, draft, and assemble PVP applications. Developing a PVP application can be a simple process or a daunting nuisance, depending on how it is prepared and carried out. Knowledge of the PVP certificate application process and access to the required background instructions and documents will make it simpler and, most importantly, likely to be successful. Moreover, guiding plant breeders in filing for PVP can help build a viable business, since IP protection of plant varieties can serve as its foundation.

To be eligible for PVP a variety should be 1) new and distinct from other varieties (novel), 2) genetically uniform, and 3) stable through successive generations. The breeder or breeding organization (public institution or company) can apply for a PVP certificate. However the breeder should be the person who actually completes the PVP certificate application. Only the breeder will have sufficient information to provide all of the information required and to answer follow-up questions from PVP examiners.

In the U.S., a PVP application consists of a completed and signed Form S&T-470 accompanied by the following exhibits:

• Exhibit A (Breeding History of the variety)
• Exhibit B (Statement of Distinctness)
• Exhibit C (Objective Description of the variety)
• Exhibit D (Additional Descriptive Information)
• Exhibit E (Statement of the Basis of Ownership)
• Exhibit F (Declaration of Deposit of Seed to National Center for Genetic Resources Preservation Deposit Form for Plant Variety Protection Voucher Sample)

The applicant should provide a voucher sample of viable seeds capable of propagating the variety (required to reproduce the variety), or, for a tuber-propagated variety, verification that a viable cell culture will be deposited and maintained in an approved repository for the duration of the certificate. The applicant is required to give their name, address, representative, the variety’s genus, species, and the variety name, except that a temporary name will suffice until the certificate is issued. The proposed variety name should also be cleared with the Seed Regulatory and Testing Branch to avoid conflicts with existing variety names.

When considering, assembling and then submitting a PVP application, remember to be organized and diligent. Success depends on thoughtful and proactive planning, impeccable recordkeeping, knowing what to do and when to do it, and knowing what the PVP office needs (not less and not more) to process the application. This type of organization should be integral to an institution. From a practical standpoint, this means keeping good breeding records, being familiar with the PVP website, knowing what the forms and exhibit schedules are, and then keeping track of time. After your PVP certificate is issued, one should also diligently watch for potential infringers.

PVP can be part of a suite of IP protection strategies in a crop improvement program. It can be used instead of, or in combination with, utility patents, trade secrets, and trademarks. Therefore, PVP can be one component of a comprehensive IP management strategy. Each form of IP protection has a cost. Utility patents, for example, will be more expensive than PVP certificates (but will offer greater IP protection). The strategy should therefore be carefully formulated, based on realistic projections, project needs, and market expectations.

Key Implications and Best Practices

Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.

For Government Policymakers

• IP protection in line with the TRIPS Agreement may provide many benefits. For example, membership in international agreements, such as TRIPS and UPOV, has been linked with increases in direct foreign investment. Indeed, small changes in policy, such as joining UPOV, can boost trade and FDI.
• Also highly relevant to increased investments, and higher innovative potential of national institutions, is a change in enforcement matters.
• If a country already has a PVP office, it will then be important to provide support for its administration, staffing, and, perhaps most importantly, outreach activities to the country’s plant breeders.

For Senior Management (university president, R&D manager, etc)

• A lot of time, effort, and expense go into developing a new crop variety. It is important to realize and that the value of this investment can be captured via PVP certificates, and this should become a core strategic concept. It is important, therefore, to provide the technology transfer office with sufficient support and resources to build capacity in managing PVP applications.
• Beyond PVP protection, however, is the licensing policy of and exchange in germplasm and improved materials. These policies should be clearly spelled out and transparent, and systematically implemented.

For Scientists

• Maintain good records of your breeding program, including pedigrees, crosses, germplasm accessions and seed lines. When you decide to apply for a plant variety protection (PVP) certificates for your new variety, these records will be simply invaluable and will greatly facilitate the overall PVP application process.
• Take advantage of any training sessions your technology transfer office might offer on PVP.
• If you are even considering PVP for a variety you are developing, contact your technology transfer office well in advance, two years or more. A PVP application takes time and planning.

For Technology Transfer Officers

• Establish protocols and systems for applying for plant variety protection (PVP) certificates. These should be institutionalized and provided to all plant breeders in your institution. Breeders can then use this information to be proactive and plan ahead for assembling the information and data necessary for a solid PVP application.
• Provide PVP training and information to your plant breeders.
• Encourage and assist your plant breeders in preparing their PVP applications.
• Keep track of your institution’s PVP certificates: negotiate licenses, collect royalties, and identify potential infringers. PVP can be a valuable asset in your IP portfolio. Manage it accordingly.