All post-soviet countries of Eastern Europe and Central Asia provide the possibility to protect the exclusive rights of breeders and selectionists to their achievements.
Obtaining plant patents is possible in Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
These countries have their peculiarities but are implemented in their legislation common principles and procedures.
Obtaining a patent helps the owners to control the production, sale, and distribution of their new plant varieties. The protection of plant varieties is crucial for the sustainable development of agriculture and food systems. This protection encourages breeders to develop new and improved varieties of plants, which can improve agricultural productivity, and enhance food security.
Obtaining a plant patent can be a lengthy and complex process, but it is an important step for inventors who have developed new and distinct plant varieties through asexual reproduction.
Plant patents are granted by the government to inventors who have discovered or invented a new and distinct variety of plants.
A plant patent grants the holder the exclusive right to reproduce, use, and sell the patented plant variety for up to 20 years (up to 35 in some countries).
A plant variety is considered new if at the filing date of the application the seeds of the plant or plant material were not sold or otherwise transferred by the author (co-authors) of the plant variety, by their employer, assignee, or with their permission by other persons for use:
– in the territory of the country for patent filing – earlier than one year prior to the filing date of the application;
– in the territory of other countries – earlier than four years before the filing date of the application, and for woody plants and grapes – earlier than six years before the filing date of the application.
Thus, the novelty of a selection achievement is understood as the establishment of the fact of the authorized (ie, by the breeder or with his consent) introduction of the selection achievement into circulation within a certain period. In other words, commercial novelty. When establishing it, the popularity of the selection achievement to third parties is not taken into account, but only its introduction into civil circulation through the sale or other alienation of plant seeds is taken into account.
A selection achievement loses its novelty property after a certain period of time after the following actions have been performed:
- sale of seeds by the breeder, his legal successor, or, with their consent, to other persons for the use of the selection achievement;
- other transfer of seeds by the breeder, legal successor, or, with their consent, to other persons for the use of the selection achievement.
So, only the alienation of seeds (sale, donation, and other transactions) is carried out by the breeder himself or with his consent and solely for the purpose of using such a selection achievement by other persons. If the selection achievement was presented at the exhibition, but its seeds were not offered for sale to third parties, then the specified period did not start.
The patent application must contain:
- application for a patent under a standard form set by a national Office;
- document confirming the right to file an application (as an author or assignee);
- copy of the first application in a country of origin (if any);
- patent obtained in other countries or examination results (if any);
- photos of a plant in the different growth phases;
- document confirming the payment of the fee for filing an application and conducting its preliminary examination.
When receiving a notification from the Office that the application has been accepted for consideration, the applicant pays the appropriate fees (if he is not exempt from paying fees or does not have a delay in paying them) and provides samples of varieties and breeds for carrying out state tests in the amount set by the Office;
Seeds (planting material) must be obtained from the harvest of the previous year and be accompanied by a certificate for seeds. Samples must be free from quarantine pests, diseases, and weeds, foreign matter, seeds of other crops.
The examination process typically takes between one and three years, during which time the patent examiner will review the application to ensure that it meets all of the legal requirements for a plant patent.
During the examination process, a patent examiner may issue one or more office actions, which are formal communications identifying issues with the application. The applicant must respond to these office actions within a set period of time, typically 3-6 months.
The responsible state body is the Center for Agricultural Research & Certification.
If priority is claimed, a certified copy of the first application should be submitted along with application materials.
The formal examination lasts about one month. The substantive examination lasts for one year usually.
The term of a plant variety right protection is 20 years from the date of the grant of the breeder’s right and 25 years for the trees. No maintenance fees need to be paid during this period.
The registration and examination process are run by the Agency of the Ministry of Agriculture.
The process is not straightforward and it is hard to determine the time period for obtaining the patent.
The Agency conducts formal examinations and DUS testing. For the test of varieties, the Agency requests different amounts of seedlings per each variety. This number may be different for different plant varieties and should be checked with the Agency beforehand.
In addition, in general practice, 2 seedlings per variety must be submitted to the National Gene Bank.
The procedure for PVP registration in Azerbaijan takes from 2 to 3 years.
The term of a plant variety patent rights is up to 20 years.
The term of patent rights is up to 25 years.
The date of priority is the date on which the application is submitted to IP Office (Sakpatenti). Convention priority is possible, within 12 months from the date of submission of an application to a country party to the convention, an application must be submitted in Georgia.
The formal examination lasts approximately 1 month. If the application complies with the established requirements, Sakpatenti publishes it in the bulletin and any person can appeal the registration within 3 months.
Within 2 weeks from the date of completion of the formal examination, the variety is submitted for testing to a person credited in Georgia. Also, the applicant must submit either a certificate of registration of a variety in another country party to the convention or the results of tests conducted in another country, according to which it is concluded that the variety is subject to registration.
If a variety is submitted for registration in Sakpatenti, which is already protected in another country, then a certificate of registration in another country (translated into Georgian) is submitted along with the application.
All procedures in Georgia take about 4 months, but after that, it is necessary to conduct tests. The tests must be done in any other country party to the convention.
A preliminary examination of the application is carried out after two months from the date of its submission to the IP Office.
Copies of the application and selection questionnaire are sent to the State Commission for Variety Testing of Agricultural Crops and the State Commission for Breed Testing and Approbation of the Ministry of Agriculture for examination of patentability, which takes from 1 year to 3 years.
According to the conclusions presented by the State Patent Commission, IP Office makes a decision to grant a patent.
The term of the patent for plant varieties is 25 years from the date of submission of the application. For grape varieties, tree decorative, fruit, and forest crops, including their rootstocks the term is 35 years.
The procedure consists of formal examination, substantive examination, and registration stages.
All the procedure lasts up to 3 years.
Usually, 5 plant samples should be provided with the Office.
The applicant has the right to claim priority based on the date of submission of the preliminary application for the same variety to the competent authority of another country by submitting relevant documents no later than twelve months from the date of submission of the preliminary application.
During the examination procedure, there are allowed possible objections from other parties. The applicant is obliged to provide an answer to the Office within three months from the date of its receipt.
If no answer was submitted, the application is considered withdrawn.
The term of the patent protection starts from the date of registration and lasts up to 35 years for tree, shrub, and grape crops, and up to 30 years for all other plant varieties.
The formal examination lasts for one month. The duration of substantive examination is not set and could last up to 3 years.
The term of patent protection is up to 30 years.
If you have any additional questions about plant patent procedures in the abovementioned countries, please contact us [email protected], or +380443555557