UK eyes unitary plant variety right with the EU

The UK is negotiating a sanitary and phytosanitary (SPS) agreement with the EU, which seeks to ease the trade and movement of plants and other products. The latest update tells us that the SPS agreement may provide the option to protect varieties across the UK and EU through a single plant variety right (PVR) [Merpel: talk about "back to the future"!].

Unitary prospects

Image by Oleksandr Dorohov from Pixabay.

It is no exaggeration to say that Brexit has caused major problems for the UK plant trade. The horticulture industry has experienced particular challenges and costs due to the need for plant health certification and physical checks at the border. The issues have been compounded for traders and gardeners in Northern Ireland. 

There are hopes that these problems would be relieved by the SPS agreement through alignment with the EU rules. This alignment is intended "to support the development and production of quality seed and plant propagating material and provide easier access to UK and EU markets." We already saw hints at the start of the year that the EU Basic Regulation No 2100/94 on plant variety rights was "in scope" as part of the potential alignment with the EU's requirements for marketing plants. 

There was little detail in the announcement that the negotiations are moving towards allowing British breeders to choose unitary protection with the EU. It seems we can expect more detail later in 2026, with a view that the SPS agreement should enter into force in mid-2027. In the meantime, a few questions spring to mind for this Kat:

As recently highlighted by the Nador Cott v Asda decision, there are important differences between the text of the UK national PVR statute and the EU Basic Regulation. In particular, the High Court decision (still under appeal) identified a few potential differences in the scope of protection for essentially derived varieties and harvested materials. The question remains whether "dynamic alignment" under the proposed SPS agreement would close these gaps for the unitary right and national PVR law?

Another question concerns the examination of plant varieties. The UK previously undertook the testing for distinctness, uniformity and stability (DUS) for many species i the EU, but these responsibilities had to be swiftly moved to other jurisdictions during Brexit (see IPKat here). Would the UK's participation in a unitary right also bring back recognition of DUS trials conducted in the UK?

A final point is that the UK would not have a vote on the future development of EU legislation, which is a rather crucial issue when the EU is currently evaluating the Basic Regulation and may adopt reforms next year. In other words, the Basic Regulation that the UK is signing up to (again) this year might look very different soon after the SPS agreement enters into force.

Impact for Genetically Modified Organisms

The latest announcement also mentions that:

The UK government will align with EU rules on genetically modified organisms (GMOs). Precision breeding is subject to ongoing negotiations between the UK and the EU as part of the SPS agreement.  

IPKat readers have been subjected to endless updates about the development of new EU rules on new genomic techniques and the parallel developments for precision breeding in England (see here, here, here and here). The potential alignment of these rules may bring many benefits, but also introduces new challenges. In particular, would this entail dynamic alignment of the patent transparency rules in the new NGT Regulation? Some might welcome the introduction of patent transparency requirements in the UK (see here). At the same time, this Kat is told that the UK has requested a derogation for precision‑bred crops, so perhaps the patent aspects of the NGT Regulation won't be part of the deal.

Final Thoughts

The announcements about the SPS agreement have signalled a direction of travel that will bring many benefits for the UK plant trade. There are several important questions that will only be answered once the full legal text is published - which will only happen once the agreement is signed. For now, we must wait patiently and hope for the best...