plants
1 September 2013PatentsErsin Dereligil and Yesim Metin

10 tips for protecting your plant variety in Turkey

The intellectual property rights of plant breeders have been protected in Turkey since 2004. Plant breeders’ rights (PBR) thus grant exclusive rights to the breeder of a new variety of plant over the propagating material.

This includes seeds, cuttings, divisions, tissue culture and harvested material such as cut flowers, fruits, or foliage of a new variety. In that sense, these varieties are required to be recognisably different from any other varieties and remain unchanged through the process of propagation.

"The right holder is obliged to use the protected variety in commerce in Turkey and file certified documents to bugem within three years of the publication date of the grant."

Turkey has received nearly 700 PBR applications in the last nine years with a striking increase rate of 60 percent in the last two years (see table).

In these filing numbers, foreign right owners, especially from Holland, France and Spain, represent 58 percent of this total, which apparently indicates that they take full advantage of this valuable IP asset in competition through this emerging market in an important geographical location. The most popular varieties of PBR applications are field crops (46 percent), fruits (29 percent), vegetables (14 percent) and ornamentals (11 percent), respectively.

Overview

Plant varieties have been protected by the Turkish PBR Law No: 5042 since January 15, 2004. The implementing regulations as for PBR protection and basics on farmer exceptions for the law were published on August 12, 2004. Turkey became the 65th member of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in November 2007, so the legislation is in full compliance with the convention.

Turkey requires a variety to be novel, distinct, uniform and stable (DUS) and to have a suitable denomination as guided in UPOV Convention.

The General Directorate of Crop Production and Development (BUGEM) is responsible for PBR registrations as the authorised office in Turkey whereas the Variety Registration & Seed Certification Centre (TTSM) holds technical examination tasks including DUS tests; both authorities are operated under the Ministry of Food, Agriculture and Livestock.

The period of PBR protection for ornamentals, vegetables and field crops is 25 years from the grant of the right (not filing date). This period is 30 years for trees, vines, and potatoes. The end date of protection period shall be calculated to run from the end of the calendar year. Annual fees will be paid in advance in January for each year after the grant of the right. No late payment is available.

Ten tips for protecting plant varieties

1. Which variety?

Turkey does not allow protection for all plant varieties at present and the plant genera and species to be protected should be included in the national list of plant varieties allowed for Turkey (265 at present), the names of which are regularly updated at
www.ttsm.gov.tr/EN/belge/2-59/granted-species.html

Since the Turkish PBR office is responsive to right holders’ requests to new additions to the list, to avoid any right loss it is important to ask for a missing species to be allowed and added into the list via a written request well in advance of filing an application.

2. When to file an application

There is no deadline for filing an application as long as the variety has never been made public or offered for commercial use. However, a variety shall be deemed to be still novel where it has not been commercialised or filed abroad more than four years earlier or, in the case of trees or of vines, earlier than six years for foreign breeders. If a variety has been commercialised in Turkey, the novelty term is just one year. The priority term is one year after filing the first PBR application if an applicant would like to enjoy a priority right.

3. Procedural stages of PBR prosecution

All PBR applications are to be formally examined on the availability of filing requirements and entitlement. A non-extensible one-month period is allowed for the applicant to overcome deficiencies in the application. Then, the application is subjected to a substantive examination as to (1) novelty, (2) applicant rights and (3) variety denomination. If an application fulfils the above mentioned requirements, the application number and date are published for three months allowing for the opposition of third parties.

In case of any opposition, BUGEM issues an official letter and invites the applicant to file a response within three months. Afterwards, TTSM starts a technical examination stage with trials, for one or more growth seasons at particular locations in Turkey, which may takes two or three years depending on the variety. If granted for protection, a certificate is issued and published accordingly for oppositions to be raised within 30 days.

4. Take advantage of your existing DUS tests

The prosecution and length of the granting period are strictly dependent upon the technical examination (DUS tests confirm whether the variety belongs to declared botanical classification, to determine whether the variety has different characteristics of distinctness, uniformity and stability).

If it already been conducted and a report completed in another acceptable foreign PBR authority, ie, the Community Plant Variety Office (CPVO) or a PBR office in a member state of UPOV Convention, the applicants may avoid the technical examination stage provided that the test reports are submitted to BUGEM during filing. TTSM is asked first to summon them directly from the priority office once the applicant pays the required official fee. Otherwise, the examination will be conducted all over again.

5. Take advantage of the priority right

The priority term is one year after filing the first PBR application. When a priority is claimed from the first application filed at one of the acceptable foreign PBR authorities, the applicant avoids Turkish technical examination stage until the DUS tests of the other authority have been completed and then can use these results for the Turkish PBR application.

6. What to file with an application

The application should contain information about applicant/breeder/variety/payment particulars with photos of the variety in colour. The photos should clearly reflect the characteristics and specific features of the variety. The application shall contain a copy of invoice and a declaration of use in connection with first commercial use, if any. The application may also contain the priority document and DUS tests from the office of prior application, if any. If the applicant is not the breeder, an assignment must be supplied. Foreign applicants must appoint a professional representative to file PBR applications and a notarised power of attorney signed by the applicant should also be submitted.

7. Denomination of plants

The denominations will consist of one or more words, meaningful or meaningless, word and figures, or letter and figures, provided that the variety can easily be recognised. The denominations submitted should not contain indications, which may hamper the entitlement for marks for the products of the variety in question, in accordance with the Turkish trademarks legislation. The applications should be made with the denomination designated in the cases where the denomination is registered and used in Turkey or in a country that is a party to the UPOV Convention.

8. Obligation of use and compulsory licence

The right holder is obliged to use the protected variety in commerce in Turkey and file certified documents to BUGEM within three years of the publication date of the grant. Not doing so wouldn’t cause any loss of the PBRs, but there might be a risk of compulsory licensing to another interested party.

9. Cost

Apart from the expert services charges, official fees of a straightforward application from filing to grant range from TL1,500 to TL5,500 ($780 to $2,860) depending on the type of the variety, any claim for a priority right and availability of a DUS report from an earlier application of the same variety. In particular, it costs between TL1,079 and TL1,729 ($560 to $900) for the filing stage, the latter of which includes priority claim and ready to file existing DUS tests (excluding your prior office service fee for delivering DUS reports); from TL1,500 to TL1,900 ($780 to $988) each year for technical examination stage (up to three years at most) plus TL420 ($218) of registration fee if granted. After the grant, annuities range from TL135 to TL345 ($70 to $180) each year.

10. Enforcement

Rights owners need to monitor competitors and bad faith threats closely and take steps to enforce their rights if they consider that they’re being infringed, with provable arguments taking advantage of PBR protection. Without the permission of the breeder/right owner, preparing the propagating material for propagation, reproduction, offering for sale, selling or other marketing, importing or exporting, or storing the variety for these purposes constitute infringement of the protected variety. For these reasons, in order to make the enforcement process more efficient, registering the varieties by PBR is really important.

Ersin Dereligil is the managing partner at Destek Patent Inc. He can be contacted at: ersin.dereligil@destekpatent.com.tr

Yeşim Metin is a registered Turkish patent and trademark attorney before the Turkish Patent Institute. She can be contacted at:  yesim.metin@destekpatent.com.tr

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk