Breeders are turning plants into protected assets, but enforcing these rights is far from simple. Excel V. Dyquiangco unpacks the global, legal and commercial hurdles in safeguarding new varieties. 
 

Flowers speak when words fall short. While a bouquet can mean love, longing, apology or devotion, its message transcends even beyond explanation. And yet behind this familiar gift lies a far less romantic reality: the flowers you give are often protected by patents, governed by contracts and shaped by intellectual property law. 

For decades, plant breeders have been quietly transforming flowers into proprietary assets. Through plant patents and plant variety rights, breeders can secure exclusive control over a new flower variety for up to 20 years. These rights are not about the flower as an object, but about its genetics – a specific petal arrangement, a unique colour gradient, resistance to disease, or a longer vase life that keeps blooms fresh well past February 14. 

In legal terms, a patented rose is not just grown – it is licensed. 

Plant variety rights and protection 

So how do plant variety rights work in protecting newly bred flower varieties, and what exactly qualifies a plant – or a flower – for plant variety rights (PVR) protection? 

According to Andrew Sim, a partner and global chair of the plant variety rights practice at Baker McKenzie in Hong Kong, PVRs grant owners of plant varieties exclusive rights over cultivated plant varieties that they have bred or discovered and developed for a specified period.  

“Subject to limited exceptions, PVRs allow right holders to exclusively produce and sell the protected varieties, and to collect royalties or other payments from third parties engaged in such production and sale,” he said. “To qualify for protection, a plant variety must have: (1) novelty, (2) distinctness, uniformity and stability (collectively referred to as DUS), and (3) an appropriate denomination. The specific thresholds for these requirements vary across jurisdictions.” 

He gave an example that under Chinese law, the novelty requirement is satisfied if, prior to the application date, the propagation and harvested materials of the new variety have not been sold or popularized by the applicant (or with their consent) for more than one year within China; or, outside China, for more than six years for woody and vine varieties, and more than four years for other varieties.  

“Distinctness means the variety has to exhibit more than one trait that clearly differe Without a PBR system ntiates it from existing varieties; uniformity requires that, except for predictable natural variation, the variety’s characteristics are consistent among individuals within the population; and stability means the variety’s main characters remain unchanged after repeated propagation,” he said. “Lastly, the denomination must be distinguishable from that of known varieties of identical or similar genus or species.” 

He added: “As PVRs are territorial in nature, separate PVR applications must be filed in corresponding jurisdictions for protection.” 

For Helen Bellchambers, a principal at AJ Park in Wellington, PVRs and plant breeders’ rights (PBRs), provide breeders with a means to recoup the time and resources invested in developing new plant varieties. “These rights grant the breeder exclusive control over the commercial exploitation of their variety within the country where protection is granted,” she said.  

“The owner of the PBR has the exclusive rights to exploit that variety in the country where the PBR is granted,” she added. “The scope of the monopoly can vary depending on the jurisdiction, but in general, the PBR owner (or their licensee) is the only person allowed to reproduce the variety or to market and sell the reproductive material of that variety. Some jurisdictions also place restrictions on importing or exporting reproductive material.”  

“Most jurisdictions only allow breeders to control the reproductive material of a variety and do not extend similar rights to material harvested from the variety, such as flowers. , the original breeder would be at a disadvantage as third parties could buy one plant and then use that plant to create hundreds more without incurring the costs of developing the variety,” she said.  

“For most flowers, the maximum period of protection under a PBR is 20 years from the date of grant,” she said. “Some countries provide longer protection for trees – typically up to 23 years – recognizing the extended time required for their development.” 

Meanwhile, Anni Wang, an associate at Marks & Clerk in Singapore, said that plant patents exist in the U.S. to protect against asexual reproduction of a plant, such as by grafting, cutting or budding. “This excludes plants propagated using seeds,” she said. “A plant patent may be applied for a new plant variety that is not propagated using tubers and not found in an uncultivated state.” 

“Most countries in the world do not have a system for plant patents. Instead, new plants can be protected using utility patents (simply called ‘patents’ in some countries) and plant variety rights or plant breeder’s rights,” she said. “Utility patents protect inventions that are novel, inventive (‘non-obvious’ in the United States), and industrially applicable. In other words, the inventions must not have been disclosed in public, must not be obvious modifications of known technology, and can be used in industry. Such inventions can encompass particular genes, traits, methods, parts of a plant or genetically modified plants. Naturally occurring organisms are excluded from patent protection, so a plant breeder may consider protecting a newly discovered plant variety using plant variety rights instead.” 

Impacting florists, growers and consumers 

PVRs incentivize breeders to invest in developing new and improved flower varieties, knowing they will have a period of market exclusivity to benefit from their work, according to Bellchambers. She said that this leads to a greater diversity of flowers available to growers and consumers. 

“Protected varieties can be more expensive than traditional varieties during the time the PBR is in force. This allows the breeder to recoup their initial investment. Without this economic incentive, varieties with desirable new traits such as longer flowering or new colours would be less likely to be produced,” she said.   

“However, once the PBR has expired, the variety can be reproduced by third parties. This encourages competition between growers and therefore the price for older varieties can be lower,” Bellchambers noted. “In the context of a bouquet or a garden, the mix of new varieties and more traditional varieties will mean any price difference due to the use of protected varieties is likely to be modest.”  

“An undervalued feature of the PBR system for smaller countries is that it encourages local nurseries to licence and import new varieties into the country. The importation process can be expensive and time-consuming. For example, in New Zealand, it can take several years and many thousands of dollars to import plant material due to our strict biosecurity rules. The availability of PBR protection means the nursery that handles the importation is able to recover some of its costs while consumers are able to benefit from new varieties produced by the larger breeding programmes in Europe and the United States,” she explained.  

For Malcolm Lyons, a principal at Griffith Hack in Melbourne, industry sources, although aware of IPRs covering flowering plant varieties, have not reported any difference in cost or availability of those varieties because of the IPRs. “In Australia, the main cost factor for varieties not available locally is importation, and the main factor for availability is adverse weather in the growing region and demand for the variety. IPRs generally make available varieties that otherwise would not be available without innovation and IPR protection,” he added.  

Challenges when enforcing plant patents 

In terms of challenges when enforcing plant patents, especially once patented flowers enter global supply chains, Lyons said that one challenge is determining whether the patented flower has been derived from a licensed or authorized grower, as the flowers in licensed global supply chains may look identical to flowers supplied through unlicensed supply chains.   

“Chasing the chain of suppliers and identifying any unlicensed growers can be challenging.  Patentees should keep lists of licensed growers and tight control over their activities and numbers of flowers supplied, so they can better monitor for infringing flowers through unlicensed supply chains on the market. As patented flowers are often exported to many other countries, and usually in large numbers, it is often challenging to maintain such knowledge and control of unlicensed flowers in all the patented markets,” he said.  

He added: “Once a plant covered by an IPR enters the global supply chain, it will only be possible to enforce rights over the plant in jurisdictions in which the IPR has been granted. Generally, an IPR owner will have considered its potential markets before offering the plant for sale, meaning that there are likely IPRs in the jurisdictions into which the plant is imported. However, plants may be exported via non-IPR jurisdictions where there is less monitoring, into IPR jurisdictions. It is important for patentees to have trusted networks in the patented jurisdictions to monitor for unlicensed flowers, especially if these have come through non-IPR markets.”  

According to him, another challenge is the limited shelf life of patented flowers once they have been cut from the plant. “This makes obtaining evidence of infringing activities more difficult than traditional product patents. More education around plant patents to downstream customers such as florists and flower retailers may help in obtaining details about infringing suppliers,” he said. 

“On the other hand,” he continued, “for a plant covered by PBR or PVR, where the IPR is defined in terms of propagating material, control of the plant may not be as serious an issue if it is a plant product, such as cut flowers, and the plant product does not constitute propagating material. If it is possible for the plant product to constitute propagating material, e.g. by cell culture, the limited shelf life may in fact be an advantage to the IPR owner by limiting the opportunity for infringing activity. At least for cut flowers imported into Australia, even if possible, to exploit propagating material, any opportunity is limited further, because the cut flowers are treated with herbicide for importation, although this is for biosecurity primarily.” 

Another challenge associated with the enforcement of PBRs is the ability to monitor supply chains and identify any infringing activities. “Cut flowers move quickly through growers, wholesalers and retailers across the globe,” said Wang. “This can make detection and tracking of unauthorised propagation or sales resource-intensive. There are also seasonal variations that affect how easy it is to correctly identify the variety. A new type of daffodil may be easy to identify while it is flowering, but if the infringer is exporting bulbs, it may be significantly harder to distinguish the protected variety from other varieties.”  

Another challenge breeders can face when trying to enforce their IP rights is that the law can vary widely across jurisdictions. “Although countries offer similar protections for PBR holders, the remedies and laws which deal with enforcement can vary significantly, as can the penalties for the infringer,” she said. “Enforcing your rights may involve navigating multiple courts, and litigation in one country may not stop or deter infringers in other countries. Since rights are country-specific, it can be a complex area to navigate.”  

Sim, meanwhile, added that participation in global supply chains compels breeders to navigate a complex landscape of legal frameworks governing plant variety protection. “Countries such as China and Vietnam have joined the International Union for the Protection of New Varieties of Plants (UPOV) and implemented corresponding laws, though the scope of protection varies. In contrast, nations like Malaysia remain outside UPOV and rely on their own legislation. Greater investment is essential to ensure proper understanding and enforcement of rights for new varieties across these differing legal regimes.” 

On the other hand, global flower supply chains move at extraordinary speed, with flowers propagated, auctioned and distributed across multiple jurisdictions in minutes, leaving little room to trace origins or verify PVR compliance. Sim said that markets like the Dounan Flower Trading Centre in Yunnan, China, handle over six million stems daily and complete transactions within seconds. However, information about breeders and rights is quickly lost once flowers enter circulation. The rapid rise of ecommerce platforms further accelerates the spread of infringement, allowing unauthorized varieties to proliferate widely before enforcement can respond. 

There are also stringent requirements for evidence gathering. “Proving infringement in PVR cases is inherently complex and requires rigorous testing, including DUS field trials and DNA fingerprinting analysis. These tests compare the allegedly infringing plants with the official reference samples of the protected variety, which are usually deposited with the governing authority at the time of PVR registration or maintained by authorized licensees. However, if a breeder holds PVR in a country but has not commercialized the variety there and fails to properly deposit reference samples with the relevant authority, enforcement of the PVR becomes virtually impossible,” said Sim.