Journal of Intellectual Property Law & Practice Advance Access published online on January 9, 2008
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpm231
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© The Author (2007). Published by Oxford University Press. All rights reserved
Towards an EC directive on plant breeder's rights?
Legal context: Although ‘Brussels’ has established many Directives and Regulations in the field of IP law during the last two decades, there is still no Council Directive on plant breeder's rights.
Key points: The article first examines the current national plant variety protection laws in force in the EC Member States. It then focuses on some figures with regard to national applications and Community applications for plant breeder's rights filed in the years 2001–2005. Subsequently, it discusses a number of optional provisions laid down in the 1991 UPOV Convention and it points out the many differences in national laws that result from this UPOV text. In particular, it draws attention to national differences with regard to the protection of products made directly from harvested material, the farmer's privilege, and the term of protection.
Practical significance: The article concludes that national applications for plant variety protection still play a significant role next to Community applications. It argues that the establishment of a Directive would be worth considering, as the differences between the laws of the Member States lead to barriers to the free movement of goods and to a distortion of the conditions of competition on the common market.
Key Words: Unlike many other forms of IP right, national plant variety rights within the European Union's 27 member states have not been subjected to any regime of harmonization of national law. • Research has shown that although the availability of pan-European Community plant variety protection has been popular, a sufficient level of interest in obtaining protection under national law remains to make it worthwhile considering the nature of that protection and its effect within the plant varieties market. • This article argues that the time has come for the introduction within the European Union of consistent levels of national plant varieties protection, in order to promote the notion of competition on fair terms within a single market.
* Senior Lecturer, Intellectual Property Law, University of Leiden, The Netherlands.