Normally, breeding new plant varieties requires substantial funds, resources and effort over a long period of research development. The system of registering plant varieties under the Plant Variety Protection and Seed Act grants the person who has labored in the cultivation and propagation of new plant varieties (the “breeder”) the right to breed (“breeder’s right”) for a fixed period of protection. In this manner, breeders have the opportunity to recover research and development costs, thereby motivating them to persist in the task.
1. Breeder’s Rights
Upon registration, the breeder’s right holder shall have the right of exclusive exploitation of the registered plant variety for a period of thirty (30) years counted from the date of registration in the case of a perennial variety such as a fruit tree, and a period of twenty-five (25) years for all other plant varieties. The use of the registered plant variety without the consent and approval of the breeder’s right holder by any person shall be deemed to have infringed the breeder’s rights. The breeder’s right holder can file a civil action for infringement and demand an injunction, compensation for damages and such appropriate measure for recovery of credit standing or reputation against the infringing party. In case of intentional infringement, the infringer may be meted a criminal penalty.
2. Process of Application up to Registration
3. Requirements of Plant Variety Registration
The registration of a plant variety entails compliance with all of the following five (5) requisites. Failure to comply with any requirement will result in rejection of the application for registration. Likewise, if the plant variety is later found not to have complied with any requirement regarding for example, consistency or stability, the registration shall be cancelled or revoked.
(1) Characteristics of the Plant Variety
a) Distinguishability
The characteristics of a plant variety in whole or in part must be clearly distinguishable from those of other commonly known plant varieties.
Conceivable examples of commonly known plant varieties are those that have been cultivated from ancient times as conventional plant varieties or are actually being sold.
Still, certain registered plant varieties are not necessarily commonly known. A plant variety for which an application for registration has been filed or one for which an application has been filed in Japan corresponding to a foreign application for registration, shall, upon registration, be deemed as and enjoy the status of a commonly known plant variety retroactive to the filing date of the application. (“quasi known plant variety”)
b) Uniformity
Plants belonging to the same generation sufficiently exhibit all of the same characteristics.
c) Stability
All of the characteristics of the plant variety remain unchanged even after repeated propagation thereof.
Should mutations occur, such that plants of the same generation or successive generations manifest different characteristics (for example, where petals of the plant variety are fundamentally supposed to produce a round shaped flower but the flower blooms with needle-like petals), the original definition of the plant variety will no longer be applicable, making commercial utilization thereof difficult.
(2) Non-assignability
There shall be no assignment of the propagating material and harvested material of the plant variety of the application in Japan for a period of one (1) year preceding the filing date of the application. The same prohibition against assignment shall apply with respect to the propagating material and harvested material of the plant variety of the application filed in a foreign state for a period of four (4) years preceding the filing date of the application.
When registration has been recognized as a necessity and there is a great expectation of the plant variety being sold, a test sale may be allowed within a given period prior to the filing of the application.
(3) Appropriateness of the Plant Variety Denomination
Determination of the appropriateness of the plant variety denomination shall be subject to the following rules:
a) The plant variety shall not have more than one denomination;
b) The plant variety denomination shall not be identical or similar to any trademark protected under the Trademark Law;
c) The plant variety name will not likely be misunderstood or misconstrued by the general public.
4. Official Filing and Maintenance Fees
The official fee for filing an application to register a plant variety is 47,200 Yen. Thereafter, an annual registration fee must be paid to maintain the registration. Failure to pay the annual registration fee will result in cancellation of the breeder’s right.
The registration fee payable each year is in accordance with the number of years that has passed after registration.
| No. of Years | Registration Fee |
|---|---|
| 1～9 years | Each year 4,500 Yen |
| 10～30 years | Each year 30,000 Yen |
5. The effective scope of a breeder’s right
The breeder’s right shall not be enforceable and the right holder’s consent and approval shall not be necessary in the following instances.
(1) Use of the Plant Variety for Experimental and Research Purposes
The utilization of existing plant varieties is indispensable to the breeding of new plant varieties. For this reason, obtaining the consent of a right holder is not necessary for experimental and research purposes. However, if use of the registered plant variety for experimental and research purposes gives rise to the possibility of sale, donation or such other disposition of the propagating material and harvested material pertaining to the same, the prior consent and approval of the right holder must be obtained.
(2) Where a patent has been granted in respect of the method for breeding a registered plant variety
(3) Where the propagation of plant varieties is conducted by farmers within the scope permitted by law
Self-propagation has been conducted by farmers since time immemorial. Throughout history, farmers have utilized seeds as propagating material properly obtained to breed plant varieties and further used the harvested material again as propagating material. Accordingly, in principle, the breeder’s right pertaining to the registered plant variety in this situation is not enforceable.
However, the use of propagating material of a plant variety based on a particular contract and a plant variety for breeding nutritional plants governed by enforcement regulations of the Plant Variety Protection and Seed Act does not fall within this exemption.
(4) In case of exhaustion of rights
In case of transfer of the propagating material, harvested material and processed products of the registered plant variety by the breeder’s right holder, as a matter of principle, the effect of the breeder’s right of exploitation shall not extend to the exploitation of the propagating material, harvested material and processed products transferred.
However this rule shall not apply in case of propagation of propagating material conducted by farmers in a foreign state that does not have a plant variety registration system, or propagation of a plant species exported to a country that does not provide protection for the registered plant variety to which the plant species belongs, nor to propagating material or harvested material exported to a foreign state for a purpose other than final consumption.
