The Plant IP Year in Review 2024

Another busy year is coming to an end... and it was particularly eventful for plant variety rights (PVRs) and plant-related IP issues around the world! This Kat has reflected on the legal developments that took place throughout 2024 and considered what readers might expect to see in 2025.

EU Plant Variety Rights and other IP issues

A Kat looking back on the year
amongst a variety of plants.
Photo by Dominik Rheinheimer via Pexels

This year marked a major milestone for EU plant variety rights: the PVR Regulation (Council Regulation (EC) No 2100/94) reached its 30th birthday in July. This Kat took the opportunity to look back on the developments over the last three decades and the challenges for the future. The Community Plant Variety Office (CPVO) celebrated this important anniversary through a jointly organised seminar with the EUIPO to reflect on "30 years of incentivising innovation" in Alicante. 

In 2024, the CPVO had one case before the Board of Appeal and four cases before the General Court. The General Court cases included the 'SK20' onion decision (T-556/22) about the inclusion of additional characteristics in the variety description, the 'Belsemred1' Sempervivum decision (T-77/23) rejecting a request for a new technical examination of distinctness, and the 'Melrose' potato decision (T-2/23) about the failure to pay annual fees. The General Court also dismissed an action that sought to contest the validity of the 'Nadorcott' mandarin PVR (T‑145/23).

The CPVO Board of Appeal heard the joint cases on 'Cripps Pink' [Merpel: an apple variety that's better known by the trade mark PINK LADY] and 'Cripps Red' apples (A019/2021 & A020/2021). The Board ordered that the nullity proceedings go ahead and remitted the case to the CPVO to re-examine the validity of the PVRs on the grounds of novelty. Meanwhile, the owners of the PINK LADY trade marks opposed the registration of WILD PINK for apples, but the EUIPO Opposition Division held that the contested signs were not sufficiently similar to the registered PINK LADY trade marks (Opposition Nos. 002225020 & 003087540). The matter is currently under appeal to the EUIPO Boards of Appeal.

The patentability of plants was a hot topic in the EU this year. The European Commission proposed legislation to relax the regulatory rules on plants developed using new genomic techniques (NGTs), but after the European Parliament voted to introduce a so-called "patent ban" to exclude gene-edited plants from patentability in February 2024, there has been slow progress to finalise the proposed regulations. Meanwhile, the Hague Local Division of the Unified Patent Court (UPC) took the view that mushrooms are not plants, and therefore, the 'Heirloom' variety could be the subject of a European patent. Whilst this view of fungi is scientifically correct, this Kat has doubts about whether it is legally correct. The pending revocation action before the UPC Milan Central Division may provide a different view of the matter.

The national courts in Europe were also kept busy with plant-related cases this year. The Greek courts faced questions about the relationship between plant variety names and geographical indications in the Kalamata Olives case. Several plant variety cases arose in Italy, including a decision that found the 'Sugraone' table grape variety invalid for lack of novelty, and a dispute over a PVR holder's contractual terms with a grower that was found to be contrary to public interest.

Global Developments

The International Union for the Protection of New Varieties of Plants (UPOV) had a new member join in 2024: Armenia. This brings the UPOV membership to a total of 79 countries. Many countries are still considering whether to adopt the UPOV model of plant variety protection. Although the Arusha Protocol for the Protection of New Varieties of Plants entered into force last month, the fact that many ARIPO members have so far declined to join the Arusha Protocol highlights the concerns that some countries have about following the UPOV model.

PepsiCo started the year with a victory in India, following a successful appeal to the High Court of Delhi to reinstate its PVR for the 'FL 2027' potato variety, which is used to produce Lay's brand chips. The respondent in PepsiCo India Holdings Pvt Ltd v. Kavitha Kuruganti brought revocation proceedings after PepsiCo sued farmers in the State of Gujarat for PVR infringement, which he described as "vexatious proceedings ... aimed at intimidating and harassing farmers" which "would clearly amount to PepsiCo acting contrary to public interest". However, the Court found that the PVR should not have been revoked, as the previous sales of the variety were within the relevant grace period, and the respondent had failed to provide evidence that the infringement allegations were frivolous and therefore offered no basis for the public interest argument.

Photo by Chris Clark via Pexels

The Canadian Food Inspection Agency (CFIA) undertook consultations on proposed amendments to the Plant Breeder's Rights Regulations. The consultation responses showed support for the proposed measures, such as extending the duration of protection for potatoes, asparagus, and woody plants from 20 to 25 years (similar to the approach in the EU). Canada also plans to narrow the scope of the farmers' privilege to exclude fruit, vegetable, and ornamental varieties from its scope, in line with other jurisdictions. Unsurprisingly, some respondents raised concerns about the potential impact on farmers' rights to save and reuse seed. CFIA sought to reassure these respondents that "farmers are always free to use non-protected varieties, which often represents the majority of varieties available in the marketplace."

In Aotearoa / New Zealand, Part 5 of the Plant Variety Rights Act 2022 entered into force in November 2024 with the appointment of the new Māori Plant Varieties Committee. Congratulations to the inaugural members on their appointment: Aroha Mead, Dale Stephens, and Graeme Atkins. The Committee will assess PVR applications whose varieties belong to an indigenous plant species, or a non-indigenous species of significance, and will also have an advisory role in the naming of new plant varieties. This Kat looks forward to hearing more details about the Committee's operations in due course.

Looking Ahead to 2025

With the new year almost upon us, we can anticipate many more news items and developments. The Community Plant Variety Office will be celebrating its 30th birthday in a few months, having begun its operations on 27 April 1995. We can expect that the CPVO will organise some activities to recognise this anniversary. 

Canada is planning to move forward with the proposed amendments to the Plant Breeders' Rights Regulations, which will involve a final public review and feedback period. This Kat will update readers once the proposed amendments are formally published.

In the US, however, the future is less certain. This Kat hasn't seen any clear signals about whether the new Trump administration will maintain the ongoing efforts to improve the plant IP system and competition in the agricultural sector. Last year, as directed by an executive order from President Biden, the US Department of Agriculture (USDA) delivered a report about competition and innovation in seeds and other agricultural inputs and has continued to make changes to address competition issues in the sector. We'll have to wait and see whether this work will continue, including the collaboration between the USPTO and the USDA on plant IP issues, the USPTO's evaluation of a potential statutory experimental use exception, and any response to the latest USDA recommendations to the USPTO.

Whatever the future holds for plant varieties and plant-related intellectual property issues, this Kat will certainly keep readers up to date. In the meantime, this Kat wishes everyone a very happy new year!