Granted plant breeders' rights do not remain valid forever. Not only is the maximum period of validity limited, but the rights can also expire if the annual fees have not been paid, or if the obligation to maintain the variety has not been fulfilled. Furthermore, plant breeders' rights can be declared null and void, if it appears that the conditions of protection were not fulfilled at the time of grant of the plant breeders' rights.
Period of validity
The duration of Belgian plant breeders' rights is currently 30 years for trees, vines and potatoes, and 25 years for other plant species. These periods start from the granting of the plant breeders' rights.
Obviously, plant breeders' rights are valid only for the full period if they not lapse before, for instance, because the fees for the maintenance of the rights were not paid or because the breeder renounces these rights by a written, signed declaration addressed to the Belgian Intellectual Property Office (IPObel).
To maintain plant breeders' rights, maintenance fees must be paid annually.
The maintenance fee is payable in advance and may be paid from the sixth month before its due date.
The maintenance fee for the first year of validity must be paid before the end of the month following the month in which the plant breeders' rights are granted.
The maintenance fees for the following years of validity must each time be paid before the end of the month that marks the anniversary of the grant of the breeders' rights.
When the maintenance fee has not been paid by its due date, it may still be paid, albeit increased by a surcharge, within a period of six months from the due date of the maintenance fee.
If this tax is not paid in full within the prescribed period, the right shall lapse by operation of law. The lapse takes effect on the due date of the unpaid maintenance fee.
If you have been deprived of your rights because you were unable to respect a IPObel deadline, please note that there is a procedure for the restoration of your rights.
Other than automatic cancellation in the event of non-payment of the maintenance fee within the prescribed deadline, the IPObel may declare the cancellation of plant breeders' rights in certain cases.
Firstly, in the case of holders who do not maintain their variety or, where applicable, the hereditary components of the variety. After all, the holder of the rights has the duty to maintain the variety.
Secondly, in the case of holders who do not respond to a request from the IPObel in the context of monitoring the maintenance of the protected variety.
Thirdly and lastly, in the case of holders who do not propose another suitable denomination when the IPObel intends to delete the variety denomination.
In these three cases, the cancellation shall take effect on the date notified to the holder by the IPObel, subject to their entry in the register.
The court can declare the annulment of the breeders' rights with retroactive effect:
- if it appears that the distinctness or novelty conditions were not fulfilled when the breeders' rights were granted;
- when the granting of the breeders' rights was essentially based upon information and documents provided by the applicant, the uniformity and stability conditions were not complied with at the time of the grant of the plant breeders' rights, or
- if the plant breeders' rights were granted to a person who was not entitled to it, unless it is transferred to the entitled person.