1. 3) b) Grace period

Phaseolus coccineus – © PBRights

The breeder enjoys a grace period during which he may make sales or disposals without compromising the variety‘s novelty. The duration of this grace period varies depending on whether the disposals take place within or outside the EU.

According to Article 6 (1) of the 1991 Act of the UPOV Convention (here) (regarding the CPVR system see Article 10  Regulation (EC) No 2100/94 – here) if a candidate plant variety was commercialized within the grace period of one year in the territory in which the application has been filed, or within four years in other territories, or six years in the case of trees and vines, it would still be considered as a novel variety.

In particular regarding the CPVR system, the correct interpretation of Articles 10 and 116 of Regulation (EC) No 2100/94 was subject of controversy before the General Court (see Cases T 765/17 – Pinova (not published) and T‑112/18 – Pink Lady – here) .

Article 116(1) of the Regulation (EC) No 2100/94 states:

“Notwithstanding Article 10(1)(a) and without prejudice to the provisions of Article 10(2) and (3), a variety shall be deemed to be new also in cases where variety constituents or harvested material thereof have not been sold or otherwise disposed of to others, by or with the consent of the breeder, within the territory of the Community for purposes of exploitation of the variety, earlier than 4 years, [and] in the case of trees or of vines earlier than 6 years, before the entry into force of this Regulation, if the date of application is within 1 year of that date.”

This is a transitional provision and an exceptional one, which privileges particular PBR owners.

In the Case T-112/18 the Court pointed out that the effect of Article 116  is to extend the grace period laid down in Article 10(1)(a) of the Regulation (EC) No 2100/94, regarding sales or disposals within the territory of the EU, from 1 year before the application for protection to 4 years, or 6 years in the case of trees, before the date of entry into force of the Regulation (EC) No 2100/94 on 1 September 1994.

Concerning the grace period for sales and disposals outside the territory of the European Union, as set out in Article 10(1)(b) Regulation (EC) No 2100/94, the provision is not affected by Article 116 Regulation (EC) No 2100/94.

Consequently, two grace periods are applicable: first, a period of 6 years before the entry into force of the Regulation (EC) No 2100/94 [Publication date 1 September 1994] for sales and disposals within the territory of the European Union [as Article 116 Regulation (EC) No 2100/94 applies to and changes Article 10 (1) (a) Regulation (EC) No 2100/94] and, secondly, a period of 6 years before the filing of the application for sales or disposals outside the territory of the EU [as Article 10 (1) (b) Regulation (EC) No 2100/94 is unaffected by Article 116 Regulation (EC) No 2100/94].


I. 3. a) Disposal of plant material

I. 3 c) Evidence


Published on May 15, 2021