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Plant Variety FAQ

Frequently Asked Questions on Plant Varieties

The definition of plant variety is wider than the definition of protectable variety. A plant variety is a plant grouping, selected from within a species or sub-species, with a common set of characteristics. It cannot be a single plant, a trait, a chemical, or a technology.

A plant variety can be protected if it is new, distinct, uniform, and stable. Furthermore, it should be identified with a suitable denomination and the registration fees must be paid.

  • To register agricultural plant varieties,
  • To form registration lists and update the list,
  • To determine the basics and principles for registration of plant genetic resources.

Successful breeding requires great skill and knowledge as well as significant investment in land, specialized equipment, and skilled & scientific manpower. It also takes around 10 to 15 years to develop a successful plant variety.

Despite all these costly and long-term intensive work, plant breeding results in the availability of varieties with increased output and improved quality for the benefit of society.

 

If there is a chance to be rewarded for all this time and effort besides recovering the costs, the breeder may seek protection to obtain exclusive rights for the new variety.

What is more, after a new variety is released, it can be easily reproduced by others. Then the original breeder loses a fair opportunity to benefit from his/her investment.

In this regard, it is crucial to provide an effective system of plant variety protection to encourage the breeder.

Plant variety protection is a type of intellectual property right which grants breeders of new plant varieties ‘the breeder’s right’.

The breeder’s right means that the authorization of the breeder is required to propagate the variety for commercial purposes.

In order to obtain protection, the breeder needs to file individual applications in each country where they seek breeders’ rights.

Only the breeder of a new plant variety can protect that new plant variety. It is not permitted for someone other than the breeder to obtain the protection. A breeder might be an individual, a farmer, a researcher, a public institute, a private company, etc.

The breeder’s right is only granted where the variety is:

  • new,
  • distinct,
  • uniform,
  • stable.

Additionally, the plant variety should have a suitable denomination.

To qualify for Plant Variety Rights (PVR), a new variety must undergo official tests to determine whether it is distinct, uniform, and stable (DUS). For most crop species, these independent tests take around two years.

  • Distinctness: A variety must be clearly distinguishable from any other existing variety by one or more characteristics.
  • Uniformity: Individual plants of the same variety must be sufficiently uniform in a range of key characteristics.
  • Stability: A plant variety is considered to be stable if it reproduces true to type from one generation to the next.

For each new variety, these DUS tests are undertaken and the results considered by independent experts to determine whether all the necessary requirements for Plant Variety Rights have been met.

The variety will be novel if it is not made available to the public or sold for the purposes of commercial exploitation by the right owner or by anyone else under the consent of the right owner.

The plant variety is accepted to be novel if its multiplication or harvested material is not sold or made to the public:

  • for more than 1 year before the date of application in Turkey;
  • for more than 4 years outside Turkey before the date of application in Turkey;
  • or, in the case of trees and vines, for more than 6 years outside Turkey before the date of application in Turkey.

Some plant varieties may have stronger protection with the support of trademark registration besides plant variety rights depending on the breeder’s or maintainer’s choice; however, it is not obligatory. Where you see the registered trademark designation ® against a variety name, the variety owner has rights over the use of the name of the variety or any logo or other design associated with it.

Patents and plant breeders’ rights are separate but mostly interrelated intellectual property rights with different conditions of protection, scope, and exceptions. Breeders can use plant breeders’ rights, patents, or other forms of intellectual property rights, or a combination to the extent that such systems are available in the territory concerned.

The technological developments especially in relation to gene-related studies, patents, and plant breeders’ rights have become more interlinked.

Plant varieties are not considered as inventions as prescribed in the below-mentioned Article 82 (3-b) of the Turkish Industrial Property Law, therefore they are not allowed to be protected by patents.

‘…(3) Below mentioned inventions shall not be granted a patent:

b) biological processes relating to plant varieties or animal races; or intending to generate plant varieties or animal races with the exception of microbiological processes or products obtained in the result of such processes…

… (5) The microbiological process that is specified in subparagraph (b) of paragraph 3 expresses any operation which includes microbiological materials, processed with microbiological materials or in the result of which microbiological materials are formed; plant or animal production procedures that are consisting of basically biological processes, hybridization or selection that are completely natural.’

Plant varieties cannot be protected with patents in Turkey. Yet, according to the Turkish Industrial Property Code, there are certain points that these two intellectual property rights may have to be considered together.

Under Article 85 (4) of the Turkish Intellectual Property Code’s Patent and Utility Model Book, it is stated that:

‘…A small farmer whose definition is made in the Law on Protection of Breeder’s Rights for New Plant Varieties dated 01.08.2004 and numbered 5042 has the right, in his own land which they operate, to use the reproduction material that derived from the product in the result of the production made by a patented product provided from the patentee; or sold by his permission; or obtained by another commercial way, in order to do new productions in their own land which they operate. This tenancy shall be subject to the provisions of the Law number 5042.’

Under Article 129 (1) of the Turkish Intellectual Property Code’s Patent and Utility Model Book, the conditions on the compulsory license are given as:

‘…Compulsory license may be given in the presence of at least one of the conditions specified below

d) If the breeder fails to develop a new plant variety without infringing on a previous patent,

(6) If the patentee cannot use the patent right without infringing on the right of breeder belonging to a previous plant variety, this situation may be subject to compulsory licensing. In this case, the provisions of Law numbered 5042 shall be applied.

(7) If a license is granted pursuant to subparagraph (d) of the first paragraph, then the patent owner may demand the giving of the license to himself to use the protected plant variety and if a license is granted pursuant to the sixth paragraph, the holder of breeder right may demand mutually the giving of a license to himself to use protected plant variety under reasonable terms.

(8) For licenses specified in subparagraph (d) of the first paragraph and in the sixth paragraph, the demandant may request the court to issue a compulsory license by means of proving that;

a) it applies to patentee or holder of breeder right belonging to a new plant variety to obtain a contractual license but cannot get any results,

b) compared to protected plant variety or invention protected by the patent, next invention or plant variety show a significant technical advance that largely provides economic benefits.’

Authorization of the breeder is required for the sales of a protected variety’s seed by any person or company.

The protection term is 25 years from the registration date.

This term is 30 years for trees, vines, and potatoes.

Plant variety rights will only remain in force subject to the holder paying a renewal fee each year during the term of the rights.

The authorized Turkish governmental units are:

  • General Directorate of Plant Production (BÜGEM) is the office receiving and prosecuting the applications for plant variety rights (PVR).
  • Variety Registration and Seed Certification Center (TTSM / VRSCC) is the technical office testing the distinctiveness, uniformity, and stability (DUS) of the plant varieties and performing other technical procedures.

Turkish citizens, individuals or companies who domicile or function in Turkey, and the citizens of the member states of UPOV can file applications and obtain registration for plant varieties in Turkey.

Applicants who are not Turkish or not domiciled or do not have an establishment in Turkey should appoint a representative residing in Turkey by legalized or apostilled Power of Attorney.

  • Denomination of the variety in the botanical taxon,
  • Denomination of the variety or provisional denomination used by the breeder,
  • Information on the priority date and place if priority is claimed,
  • Technical properties of the variety,
  • Payment receipt of the filing fee,
  • Geographical origin of the variety,
  • High-resolution photos of the variety in color which indicate the characteristics of the plant variety (photos are mandatory for fruits and ornamental plants, while they are optional for field crops and vegetables),
  • Notarized and legalized or apostilled Power of Attorney if the applicant is not Turkish or resident in Turkey,
  • Assignment of rights (covering the name and address of the breeder and the indication of how the rights were acquired) if the applicant is not the breeder,
  • Description of plant variety,
  • The declaration on the first commercial use (signed & stamped) accompanying by the copy of invoices (signed & stamped).

The priority claim period is 12 months from the date of the application filed in a member state of the UPOV Convention. In that case, the application date in that specific country will be considered as the application date in Turkey.

Applicant should inform the office that he/she would like to benefit from the priority right originating from his/her first application.

Within three months from the application date, the office may ask for the legalized copies of the application documents of the prior application with their translations along with samples and evidence proving that the variety in both applications is the same.

There are two phases of the examination by the office: (1) Formal examination, (2) Substantive examination.

The former refers to the examination of the application to check whether the necessary documents and information are duly provided.

If any deficiencies or mistakes are identified during the formal examination phase, the office gives the applicant a period of 30 days from the date of receipt of the notification to remedy these deficiencies.

If the deficiency is not remedied within the due date, the application is deemed to be withdrawn irrevocably.

The latter examines the aspects of whether *the variety is novel; *the applicant is entitled for making the application; *the denomination proposed for the variety is in compliance with the legal requirements.

After the substantive examination phase, the following scenarios may arise:

  1. The office accepts the application records in the Register and assigns an application number.
  2. The office finds out that the requirements in the substantive examination are not met, and rejects the application. The refusal decision cannot be appealed before the office; however, it can be appealed before the court within 2 months from the date of receipt of the decision.

Following the examination period, the applications are published for the purpose of opposition within 30 days after recording at the Registry.

Third parties can oppose the application within 3 months from the date of publication.

The plant varieties are published in the Plant Variety Bulletins.

If the application is accepted during the substantive examination, the office arranges technical examination to validate the matters whether *the variety belongs to the designated botanical taxon; *the distinctness, uniformity, and stability (DUS) criteria are met; and prepares the variety description (a document describing the characteristics of the plant variety) if the variety complies with DUS.

The technical examinations can be conducted by:

  • any main, related, or appointed offices or institutions of the Ministry of Agriculture and Forestry (in most cases it is Variety Registration and Seed Certification Center (TTSM);
  • the applicant if the Ministry finds it appropriate.

The technical examinations can be based on DUS tests conducted by the authorized offices of the UPOV member states. However, these tests should be conducted in the countries where the agricultural climate conditions are the same as in Turkey.

The DUS tests, prepared by the examination offices of any country of the UPOV, should be submitted at the time of the application.

Due to the common practice of UPOV, such reports can only be exchanged between national authorities upon payment of a transmittal fee. Therefore, the UPOV member state, which conducted the examination, may probably not provide the DUS test to the applicant. In such a case, the Turkish PBR Office can communicate with the authorized UPOV member office and request the transmittal of the DUS tests upon request of the applicant.

If the aforesaid DUS test of the UPOV member examination office is not completed and still being carried out at the time of filing application in Turkey, this is declared to the Turkish PBR Office and one of the below documents are submitted during the application:

  • The duly filled technical questionnaire provided by the Turkish PBR Office, or,
  • The technical questionnaire submitted to the UPOV member examination office along with its sworn Turkish translation.

In addition to the abovementioned documents, relatively reduced technical examination fees should also be paid.

Once the technical examination is completed, the testing agency sends the technical examination report to Registering Plant Breeders’ Rights Committee arranged by the Turkish PBR Office and consisting of experts of various related organizations and offices depending on the type of the plant variety group. After sending the technical examination report to each member of the Committee, the Committee meets (at least with 5 permanent members) for elaborating on the technical examination report. This Committee grants the protection of plant breeders’ rights and records it to the Registry. The applicant receives the Registration Certificate of Plant Breeder’s Rights.

After being recorded at the Registry, the registration decision is published within 30 days as of the registration date. The registration can be opposed by third parties 30 days from the publication date.

The denominations should be made considering the following rules as prescribed by Article 20 of the Regulation on the Protection of Breeder’s Rights regarding New Plant Varieties:

  1. The denomination may consist of a meaningful or meaningless word or group of words, words, and numbers, or letters and numbers, provided that it allows the variety to be recognized.
  2. The denomination proposed for the variety should be of a different name than the other varieties or the recognition of the variety should be sufficient in terms of linguistics.
  3. The denomination should not contain any expressions contrary to public order and general morality.
  4. The denomination should not consist of signs indicating the species, quality, quantity, purpose, value, geographical origin, or production date in the plant varieties and seed sector not only in the Turkish languages but also in the languages of the contracting countries of the UPOV convention.
  5. The denomination should not be misleading or confusing with respect to the relationship between the variety and the breeder or applicant in terms of geographical origin, value, or characteristics of the variety.
  6. In the proposed denomination of the variety, there should be no elements preventing a trademark from being obtained in respect of the products related to the variety in terms of trademark legislation.
  7. If a denomination is used for the variety registered in a country that is a party to the UPOV Convention, applications for breeders’ rights should be made under this denomination and the variety is registered under this denomination. Where other denominations are also used in the same variety in other countries, those denominations used in other countries are also recorded in the application registry and the registry of the breeders’ rights. The same also applies to previously registered varieties in Turkey.
  8. The proposed denomination for the variety cannot be identical or confusingly similar to the denominations of the same and similar varieties which were registered and are used in Turkey or the contracting parties of the UPOV Convention.
  9. Anyone who sells, markets, or otherwise uses the propagation material of the protected variety must use the denomination of the variety. This also includes mainly derived varieties. Even if the breeders’ rights are terminated, the denomination of the variety must be used.
  10. Prior rights of third parties with respect to the use of the protected variety are reserved. Because of the previous rights of third parties, if the use of the denomination of the variety is prohibited to the person who has to use this variety, the General Directorate will ask the breeder or the right holder to propose a new denomination for the variety.
  11. The use of the denomination proposed for the variety can only be used together with the trademark, trade name, or other similar marks provided that the denomination is written so as to be easily identifiable.

All the plant varieties and species listed under UPOV codes of Principle Botanical Names can be registered in Turkey.

The annuities or renewal fees should be paid within the month of January of every year. In the case of failure of payment, the rights for plant varieties lapse.

The re-establishment of the rights is possible provided that the failure happened in the event of a force majeure. The request for re-establishing the rights due to force majeure should be filed within 6 months from the date of publication of the decision regarding the termination of the rights.