In 1961, the International Convention for the Protection of New Varieties of Plants was signed. By virtue of the Convention, the Union for the Protection of New Varieties of Plants (“UPOV”) was established. Although Israel did not become a member of the UPOV before 1979 the Plant Breeders’ Right Law of 1973 (“PBR Law”) was largely based on the UPOV convention from the very beginning.
Following the joining of Israel as a member in UPOV, the Israeli PBR Law has become increasingly similar to the UPOV convention, with two significant amendments implementing the provisions of the 1978 and 1991 revisions of the convention.
The second primary source of influence on the Israeli PBR Law is the Israeli Patent Act, which served as the basis for many provisions in the PBR Law, as both the Patent Act and PBR Law have the same purpose – granting monopoly rights over new inventions and thus incentivizing innovation
Purpose of Protection
The purpose behind the protection granted to new varieties under the PBR law is to incentivize plant breeders to develop new varieties of plants for the benefit of the public.
Much like the mechanism of Patent Act, the PBR Law provides the plant breeder with an exclusive-monopolistic right to exploit the new variety he developed over the protection period, in order to allow the plant breeder to cover the expenses he invested in the development of the variety, as well as to gain a reasonable profit for his effort.
A variety that is eligible for registration
According to the law, the Breeders’ Rights in a variety, which is defined in article 1 of the PBR law as “a group of plants within a single botanical taxon of the lowest known rank” shall arise for a person or corporation, after being registered in the Breeders’ rights book, and subject to the fulfillment of all the conditions specified in articles 6-7 of the PBR Law – a “new”, ” uniform” and “stable” variety:
1. New – a variety that is clearly different from any other variety that was known when the application for registration of a Breeders’ Right was submitted.
2. Uniform – it is sufficiently uniform in its basic characteristics, as stated in the application and taking the propagating method of the variety into consideration.
3. Stable – Its basic characteristics are stable, and its description and characteristics are preserved even after repeated reproduction, and if the breeding constitutes a complete cycle – its characteristics are preserved at the end of each cycle.
Term of Protection
In accordance with the requirements of UPOV convention, the PBR Law states that the term of protection of a breeders’ right is twenty years. However, for varieties of vines, fruit trees and any other perennial plant the term of protection is twenty give years.
It is important to emphasize, that unlike protection term under Patent Act, the PBR protection term over a new variety starts only at the date of registration of the variety, rather than the date of application. The reason for delaying the protection term to the date of registration stems in the long and complex process of examination of new varieties, which in some cases might extend even up to 5-10 years, as well as other factors that cause delays in the process, such as inspections under quarantine required by the Plant Protection and Inspection Services in respect to any new variety that enters Israel.
Article 36(b) provides that:
“The holder of a breeders’ right may prevent any other person from utilising – without his authorization or unlawfully – the variety in respect of which the right is registered (hereafter: protected variety); an aforesaid utilisation constitutes infringement.”
Utilization of a variety is defined in article 1 as cultivation or propagation of the variety, preparation for its propagation, an offer for its sale, sale, export, import or marketing in any other manner of the variety, maintenance of the variety for purposes of one of the specified acts and other acts in respect to the variety, determined by the Minister with approval by the Knesset Economics Committee.
It means that any of these specified acts done in respect to the registered variety without the variety owner’s permission shall constitute infringement.
Furthermore, article 36(c) broadens the PBR owner’s right to apply also on harvested material, including full plants and parts of plants, which was obtained through unauthorized use of propagating material of the variety, unless the PBR owner was given a proper opportunity to exercise his right in respect to the harvested material.
This article allows the PBR owner to act against the reseller of plant parts, such as fruits and flowers, even if such person was not involved in the unauthorized production of such harvested material, but only obtained it from another person who directly infringed on the PBR owner’s right.
Permitted Uses and Defenses
Article 37 of the PBR Law mentions two types of acts that consists utilization, which even absent the breeder’s consent, shall be considered as permitted uses.
A PBR owner cannot prevent from its competitor to use the registered variety for the purpose of developing a new variety. However, the repeated use of the registered variety for the purpose of production of another variety for commercial is prohibited without receiving the permission of the owner of the registered variety.
Additionally, any act in respect to a registered variety done privately and not for commercial use is permitted and does not require receiving the variety owner’s consent.
Article 36(a) also limits the scope of protection the PBR owner, but only vis-à-vis the licensee of the PBR right. This article implements the first sale doctrine, according to which once the owner of the right has provided his authorization to a third party to utilize the variety, the owner of the right will not be entitled to prevent from that third party to sell the variety, unless such sale involves unauthorized repeated propagation of the variety or export to a country that does not protect PBR rights.
In an action for infringement, the plaintiff is entitled to relief by way of injunction and by way of compensation.
The injunction under this article refers to all types of orders that a court is authorized to issue in a civil procedure, such as mandatory injunction and preventive injunction.