Today I had a conversation with a gentleman who has developed a new plant variety. He is not a professional grower or breeder, so the world of Plant Variety Rights and intellectual property is new to him. Moreover, he doesn’t have much understanding of the horticultural trade and wasn’t familiar with the normal practices of variety testing before commercialisation. In other words, he was ripe for being ripped off. Sadly, someone has already attempted to do that.
This gentleman did what he believed to be sensible and approached a solicitor. He understood that his variety was novel and that he wanted to protect his innovation. Sadly, the solicitor he approached had no knowledge of Plant Variety Rights, in common with many (most?) solicitors in the UK, and no knowledge of the horticulture industry. Now, I may be naive, but if I don’t have knowledge of a specialist field, I seek out the opinion of others who might have knowledge. However, instead of seeking a Plant Variety Rights specialist for advice (or referring their client to such a specialist), this particular solicitor decided to start charging her client for “name searches” and for “registering the name”. I’m not clear who she hoped to register the name with. As for searches, for the purposes of our industry, we can quickly search the principal databases to ensure that a name will be valid and not conflict with an existing trademark in about three minutes and without incurring any costs. Moreover, the solicitor was starting down this road without advising her client to first ensure that there was a viable market out there for his innovation that might give him reasonable hope of earning enough royalties to recoup his investment (likely to be considerable) and provide some sort of return for his time and efforts.
I find this sort of behaviour inexcusable. Members of the legal profession, if acting outside of their field, should either seek advice themselves from experienced third parties or tell their client that they are neither qualified nor experienced to act on their behalf. Surely to do anything else would be unprofessional.
We will now be helping this gentleman. We will work with him to carry out an initial evaluation of his plant. Then we will work with him to set up secure commercial evaluation trials of his variety with our trusted grower partners across Europe and worldwide, backed up by robust trial agreement contracts that protect the breeder’s interests. In time and after the results of the trials, we will make a recommendation as to whether to apply for Plant Variety Rights, providing estimates of the costs for doing so – and these costs will be only those fees levied by the CPVO (plus bank charges). We will provide an estimate of the potential market. If agreed, we will make the PVR application on the client’s behalf and in their name – we take no interest in the title of their variety. All of this we do for free (or, if there is an exceptional cost, we agree it with the breeder in advance and only recharge the costs we incur ourselves).
Then we will issue licence contracts, collect royalties, carry out promotion and police for illegal propagation. Then we get paid – by taking a commission on royalties – and only then. In other words, we only derive an income on a variety when it begins to earn money for the breeder, all the while acting to protect and promote the interests of the breeder.
For us, it’s the only way that things should be done.
Plant breeders: whatever you do, seek the advice and opinion of an independent plant breeders’ agent (we’re not the only one, but we like to think we are rather good) before you proceed. It may save you a lot of money.