The Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2019

PART 4 Unresolved applications on exit day

Unresolved applications

9.—(1) On exit day, a person has an “unresolved application” for the purposes of this Part if—

(a) before exit day the person (whether alone or with others) had made an application for a Community plant variety right under the Council Regulation; and

(b) immediately before exit day that application is unresolved.

(2) An application is unresolved for the purposes of paragraph (1)(b) if—

(a) no decision in relation to it has been made under Article 61 or 62 of the Council Regulation;

(b) such a decision has been made but the period under Article 69 of the Council Regulation within which an appeal against it may be lodged under Article 67 of that Regulation has not expired; or

(c) such a decision has been made and has been appealed, and the appeal has not been finally decided.

(3) In relation to an appeal under Article 67 of the Council Regulation, that appeal is finally decided when—

(a) the period under Article 73(5) of the Council Regulation for lodging an appeal against the decision under Article 72 of that Regulation on the appeal has expired without a further appeal being lodged;

(b) if such a further appeal is lodged, at the conclusion of any proceedings on, or resulting from, that appeal.

Right to apply for a plant breeders’ right

10.—(1) A person who has an unresolved application may apply for plant breeders’ rights under the 1997 Act in relation to the variety to which the unresolved application relates.

(2) An application under paragraph (1) must be made within the period of 6 months beginning with exit day.

(3) An application under paragraph (1) must contain a statement—

(a) that it is made by, or with the consent of, the person who made the unresolved application; and

(b) that it relates to the same variety as the unresolved application.

(4) Subject to the provisions of regulations 11 to 14, such an application is to be treated as if it were an application under section 3 of the 1997 Act (grant of plant breeders’ rights on application).

Effect of an application under regulation 10: priority

11.—(1) An application under regulation 10 is to be treated for the purposes of paragraph 5 of Schedule 2 to the 1997 Act (priorities between applicants) as if it were made, not on the date on which it is in fact made, but on the earlier date specified in paragraph (4).

(2) Paragraph (1) applies only if the conditions in paragraph (3) are met.

(3) The conditions are that—

(a) the unresolved application has not been withdrawn or refused when the application under regulation 10 is made;

(b) within the period of 3 months beginning with the date of the application under regulation 10, the applicant submits to the Controller a copy of the documents constituting the unresolved application, certified as a true copy by the Community Plant Variety Office established under the Council Regulation; and

(c) the application under regulation 10 includes a claim to priority by reference to the unresolved application.

(4) The earlier date is the date of the filing of the unresolved application.

Application under regulation 10: novelty

12.—(1) The provisions of this regulation apply in determining whether a variety is to be deemed new for the purposes of an application under regulation 10 (and, accordingly, the provisions of paragraph 4(1) to (3) of Schedule 2 to the 1997 Act (criteria for novelty) do not apply).

(2) The variety is to be deemed new if no sale or other disposal of propagating material or harvested material of the variety for the purposes of exploiting the variety has, with the consent of the applicant—

(a) taken place in a relevant territory earlier than one year before the date of the making of the unresolved application; or

(b) taken place elsewhere than in a relevant territory earlier than 4 years, or in the case of trees or vines, 6 years, before the date of the making of the unresolved application.

(3) Sub-paragraphs (4) to (11) of paragraph 4 of Schedule 2 to the 1997 Act (disregard of certain sales and disposals) have effect for the purposes of this paragraph, but as if, in sub-paragraphs (4) and (10), the references to sub-paragraphs (2) and (3) of that paragraph were references to paragraph (2)(a) and (b) of this regulation.

(4) In this regulation—

“applicant” includes, in relation to consent to a sale or other disposal, a person with whose consent the applicant made the application under regulation 10;

“relevant territory” means any part of the territory of a member State (which, in relation to the time in question, includes the United Kingdom).

Application under regulation 10: rights in relation to application period

13.  In relation to an application under regulation 10, the application period for the purposes of section 5 of the 1997 Act (reasonable compensation for anything done during the application period) shall be taken to begin on exit day.

Refusal of application where there is an existing plant breeders’ right

14.  If an application under regulation 10 is made in relation to a variety for which there already exists a plant breeders’ right under the 1997 Act, the application must be refused.