by Avraham Hermon, Senior Partner

Mankind has been selectively breeding plants for thousands of years, by cultivating plants that grow in the wild, and breeding them to improve various characteristics. Selective breeding has impacted and improved virtually every variety of plant which farmers grow today. While patents are a type of intellectual property provided by government to protect technological inventions, plant breeders’ rights are an additional, less well-known type of intellectual property, that gives breeders the ability to prevent others from marketing the products of their breeding efforts.

Despite the huge advancements made in agricultural technology since the dawn of civilization, even today’s environment requires the improvement of plant breeds. Changing environmental factors require breeders to modify plants by breeding them for alternative harvest times, and for increasing yields.

IP for plants, also known as “plant variety protection” was instituted to incentivize plant breeders to develop new and improved breeds. In exchange for their breeding efforts which improve society, they are rewarded by governments  by receiving a “monopoly” on their innovations for a limited amount of time, in which others are prohibited from marketing their new variety without permission from the owner of this exclusive right.

“The International Union for the Protection of New Varieties of Plants” (UPOV) is an intergovernmental organization established by the International Convention for the Protection of New Varieties of Plants. In 1973, the Plant Breeder’s Law was introduced in Israel; Israel joined the UPOV treaty in 1979.

Israel’s Ministry of Agriculture has a Plant Breeders’ Rights Unit which administers the registration and maintenance of such rights. In Israel, basic protection for plants is for 20 years, but trees, grapevines and some other plants can be extended to 25 years. 

Examination

Examination of an application for Plant Breeders’ Rights is focused on making sure that the new variety has “distinctiveness, uniformity, and stability,” otherwise known as the “DUS” test. Distinctiveness is a test performed by examiners to determine that the plant variety is unique and different than known plant varieties. Many parameters relating to various parts of the plant may be evaluated and compared to reference varieties to show distinctiveness. Uniformity involves showing that all plants within the new variety share the same characteristics. Stability refers to the plants showing similar characteristics from generation to generation. Examination also includes checking various formal requirements and checking the name of the variety by making sure that the name of the new variety is not also registered as a trademark.

Examination in Israel typically takes place over two seasons, and continues in a section of the breeder’s property dedicated to the examination process.

Israel has agreements with various UPOV countries to allow examination of a new variety based on examination of the variety in other countries. This abbreviated process for examination which relies on rights granted outside of Israel is simpler as it is based on information received from overseas organization, and costs less for the applicant.

In the 50 years since the introduction of the law, over 5,000 requests have been submitted in Israel, and as of late 2023 about 3,900 had been approved. 850 Plant Breeders’ Rights are in force, currently. About 100 applications are submitted annually in Israel.

If you have any question about Plant Breeders’ Rights in Israel, please feel free to contact me at Avraham.hermon@jmbdavis.com.

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