The Turkish Law No. 5042 on the Protection of Breeders' Rights of New Plant Varieties was enacted on January 15, 2004 and its Implementing Regulation on August 12, 2004.

Said Law has been prepared in conformity with the European Union Directive no. 2100/94/EC and 1768/95/EC.

As the 65th member, Turkey is also party as from November 18, 2007 to the International Union for the Protection of New Varieties of Plants (UPOV) which is an intergovermmental organizition based in Geneva, Switzerland, estabished in 1961, the mission of which is to provide and promote an effective system of plant varity protection, with the aim of encouraging the development of new varities of plants for the benefit of society.

PLANT AND BREEDER’S RIGHT (PBR) APPLICATION FILED BEFORE THE BÜGEM

The first PBR applications in Turkey have been filed on September 2004 before General Directorate of Plant production (BÜGEM) which is the competent division of the Ministry of Agriculture and Forestry charged with the application and registration of PBR. From the year 2004 to the end of the year 2022, the total number of applications made until today is 3091, among which examination of 2837 applications have been completed.

According to the the data provided in the Plant and Breeder’s Rights Report published by the BÜGEM for the year 2022, 264 applications have been filed and technical examination for 147 varieties are still pending.

According to the same Breeder’s Rights Report of 2022, as to the types of the PBR applications, the groups with the most interest for applicants are primary agricultural, (151) then vegetable (52) and fruit (49). Less interest exists for ornamental plants which constitutes only (12) applications among the total of 264 applications.

mong the varieties, wheat (44), corn (25), cotton (20), tomato (17), barley (15), sunflower (13) and lettuce (13) constitute the first most applied group followed by a second group constituted of potato (8), cucumber (7), blueberry (6), strawberry (5), pepper (4), soy (4) and lastly by chickpeas (3), rose (3), dries beans (2).

In view of the total of the applications, the rate of 48% are submitted by foreign among which Netherlands, USA, France, Spain, Italy are listed as the first five countries and 52% by domestic applicants. Compared to the previous year 2021, the statistics have not changed in a significant manner as the rate filed by domestic was 54% and 46% by foreign.

The applications once accepted by the BÜGEM, their technical examinations are carried out by the Variety Registration and Seed Certification Center (TTSM) which is an other competent division of the Ministry of Agriculture and Forestry in charge of managing the technical examination phase of PBR applications filed before the BÜGEM.

At the end of the technical examinations, the TTSM delivers the inhouse technical examination report called DUS report (Distinctiveness, Uniformity, Stabililiy are the criteria for the DUS report like the patentabiliy criteria in the substantive examination report for patents) or evaluates the DUS reports completed by other authorities such as the CVPO and issued according to the UPOV test guidelines. Then the DUS report is sent to the Committee of Registration of the BÜGEM which decides to the registration based on the final DUS report. Thereafter the PBR registrations are published for third parties opposition purposes in the Bulletin. In case no opposition is received within one month as from the publication date, the registration procedure of PBR is finalized.

The protection period is 25 years as from the registration date of the Turkish PBR application. This period lasts for 30 years for trees, vines and potatoes.

The Law provides exclusive rights like in all IP rights for the PBR holder, whom can prevent unathorized third parties from exploiting and commercializing the variety in Turkey. These are

Production or propagation

Preparation for propagation purposes

Varieties derived from original

Offer for sale and sale

Export, import

Storing

Compensation from third parties between the application date and the registration date

There are exemptions to the coverage of the PBR like:

• Activities limited to personal and non-commercial purposes

    - Experimental activities  
  
    - Activities for the purpose of obtaining other varieties (excluding derived varieties) 
  
    - The Farmer’s Exemption 
  

1. AN APPLICATION FOR NATIONAL LISTING (NL) FILED BEFORE THE TTSM

Returning to the competencies of the TTSM in charge of the technical examination of plants, it ensures the registration (NLI) thereof and grants also “production authorization” which is an administrative procedure independent of the PBR application and with no effect on it.

The NLI registration of plant varieties by the TTSM is governed by the Regulation published in the Offfical Journal no. 26755 dated January 13, 2008 which was prepared according to the Law of Seed no. 5553 dated October 31, 2006.

The “production authorization” provided by the TTSM is a temporary authorization which is granted until the variety is registered. This authorization determines the biological and technological characteristic, the resistance to diseases and pests and the agricultural characteristics of the plant varieties that are bred or found and developed in Turkey or abroad.

If a production authorization is granted for fieds crops, vegetables, fruit and vines, ornamental plants respectively, articles 21, 27, 34 and 40 of the Regulation for the NLI registration of plants varieties does not alllow to give a second authorization.

For obtaining a “production of authorization”, it is necessary to apply simultaneously and separately for “production authorization” and Registration of National Listing (NLI) in order to enable the applicant to produce and commercialize the variety in Turkey during the technical examination (DUS tests) process, which usually lasts 2 years.

In case both applications are accepted, the plant variety is recorded on the list for which which production authorization is granted. After the submisson of the plant material to the TTSM, the examination stage is conducted at the end of which the DUS report is issued. During the examination stage, it is possible to produce and comercialize the variety based on the production authorization. Where the DUS report is positive, the variety is registered.

As to the registration, it concerns the recordal and accordingly the registration on the National Listing (NL) of the plant varieties that are bred or found and developed in Turkey or abroad, that complied with Distinctiveness, Uniformity, Stabililiy criteria and/or by determing the biological and technological characteristic, the resistance to diseases and pests and the agricultural characteristics.

The NLI covers the following Lists:

National List for Field Crops

Standart Seed List for Vegetables

Variety List for Fruit and Vine

Variety List for Ornamental Plants

The plants varieties are recorded for certain period with the exceptions for fruit and vines species. This period is 10 years and is calculated as of the end of the calendar year. Renewal application for NLI registration should be submitted within 2 years prior to expiry date and in the affirmative the registration can be extended to further 10 years.

CONCLUSION and COMMENTS

For the breeders, there is still a common opinion that the NL of plant varieties (i.e. Registration or Standart list) provides an ownership and following the registration on the NL, no one else can produce the variety. According to the the data provided in the Plant and Breeder’s Rights Report published by the BÜGEM for the year 2018, this idea appears to be one of the serious obstacle to file for more PBR varieties. In fact, the ownership of plants and varieties can be obtained through the PBR application filed before the BÜGEM whereas the NL registration serve a function in recording of subject plants and varieties to the national lists.

However, this idea is completely wrong. Where a source material of a variety is not protected under the Breeders Rights, anyone who wants can produce it in any amount and trade provided that it complies with the production requirements in the Law of Seed no. 5553.

Only PBR registration grants exclusive rights to PBR holder, which hinders third parties to enforce/use said rights. On the other hand, NLI registration has no such a hindering function and any third party who can find seeds of the variety can produce or sell the variety even if the variety is recorded to the NLI.

Therefore, in a first step it is recommended to file a NLI application if there is any request for selling the variety during DUS tests before the TTSM and in a second step to file a PBR application shortly after (within one week) with the BÜGEM or simultaneously with the NLI application in order to take the advantage of both production authorization during the technical stage with the establishment of the DUS tests and obtaining exclusive rights.