When the Plant Variety Board recognizes a plant breeder's right, she/he has the exclusive right to produce and sell propagation material for that variety (seed, seed cereals, stock plants, seed potatoes etc). This exclusive right is most often exploited by the breeder allowing others to produce and sell propagation material for the variety upon payment of a fee (licence fee, royalty etc).
The licence fee is usually highest for the most popular varieties. The authorities have no influence on the size of the fee, except in those cases where the fee is set high in order to prevent cultivation of the variety.
The legal basis for the exclusive right, and right to charge a fee, is found in the Act and Regulations relating to the plant breeder's rights. The legal framework came into force on 15 September 1993 and is based on the provisions of the International Convention for the Protection of New Varieties of Plants of 1978. This led, in due course, to Norway becoming a member of The International Union for the Protection of New Varieties (UPOV). The Union ensures that its members have a national legal system which grants plant breeders approximately the same rights in every country where the variety is protected.
The Convention has been revised once since 1978. The revised 1991 Convention also takes biotechnological breeding methods into account and the implications these may have for the breeder's control of the variety.
In January 2009, 67 countries were members of UPOV, of which 43 had endorsed the 1991 Convention. In addition, there is the EU, which also has a legal framework based on the 1991 Convention. Countries now wishing to join the Union are required to endorse the 1991 Convention.
Protection applies from the time the application is registered with the Plant Variety Board. The licence payer will be entitled to a refund if the breeder collects a fee during the period when the application is being processed, and protection is not subsequently granted.
Varieties which are the subject of an application for protection in Norway, must not have been on sale in the country with the breeder's consent before the date of application. In other countries, the variety may have been on sale for up to 4 years before the date of application. The period is 6 years for trees/bushes/lignin.
Protection must be renewed annually, and can be maintained for 25 years for trees/bushes/lignin and 20 years for other species. The period is calculated from the year after protection was granted. These provisions contribute to the marketing of new varieties, and production of old varieties without payment of a fee.
Protection only applies to commercial exploitation of propagation material for the variety. Propagation of a protected variety for the grower's private use is therefore permitted. In Norway, moreover, anyone, without exception, can make propagation material from protected varieties for their own private use. This also applies to the sale of products, e.g. berries, fruit, vegetables and cereals. This does not apply to ornamentals. Reproduction of propagation material/plants with a view to commercial production of cut flowers or other material for ornamental purposes requires the permission of the breeder of the protected variety.
Protected varieties can be freely used in research and further breeding. This also applies to selection of mutated plants of a protected variety. Such a selection will be eligible for protection as a separate variety.
An application for protection should be submitted to the Plant Variety Board on standard form. As laid down by Norwegian rule, the application must be written in Norwegian.
The application fee, which must be paid before the application can be registered, is currently NOK 1 500. Before approval can be granted, the plant material must be DUS tested and the application and proposed name for the variety must be published, with a view to possible objections.
DUS testing of a variety usually costs from NOK 10 000 to 30 000. Member countries in UPOV collaborate on the testing. The price of a copy of the DUS report has been fixed at 350 Swiss francs. The Board will usually buy in copies of earlier reports, if available, rather than initiate their own test.
A fee of NOK 1 800 per year is charged from the year following the granting of breeder's rights and for each year the variety is protected.
As of 01.01.09, there were 290 protected varieties in Norway, of which 174 were ornamentals/flowers. Protection has been sought for a total of 547 varieties since the scheme was introduced in 1993.