PLANT VARIETIES: Definition and Classification

Plant varieties are among the most valuable—yet least known—assets in the field of intellectual property. Behind every new variety of tomato, wheat, or rose lies years of research, investment, and specialized expertise. However, once a variety reaches the market, it can be easily reproduced without its breeder receiving any compensation.

This is why a specific protection system exists, distinct from patents, which recognizes the rights of those who develop new plant varieties. In this article, we explain what plant varieties are, how they are classified, the requirements they must meet to qualify for protection, and the authorities responsible for managing their registration in Spain and across Europe.

What is a Plant Variety?

Una variedad vegetal es un grupo de plantas seleccionadas dentro de una misma especie que comparten características comunes, heredables y diferenciables de otras plantas de esa misma especie.

To put it simply, within the species Solanum lycopersicum (tomato), there are thousands of possible combinations of traits such as size, color, flavor, disease resistance, and shelf life. Each stable group of plants exhibiting a specific combination of characteristics is what we refer to as a plant variety.

According to the 1991 UPOV Convention (International Union for the Protection of New Varieties of Plants), a plant variety is defined as:

A grouping of plants within a single botanical taxon of the lowest known rank, which can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of those characteristics, and considered as a unit with regard to its suitability for being propagated unchanged.

In practice, this means that a plant variety must be identifiable, distinguishable, and capable of being reproduced consistently over time.

Botanical classification as a starting point

To understand plant varieties, it is important to be familiar with the hierarchical system of botanical classification: kingdom, division, class, order, family, genus, and species. Each of these levels is known as a taxon (plural: taxa).

The species is the key taxonomic rank: it groups organisms that share heritable characteristics and, under natural conditions, do not reproduce with organisms of other species. Below the species level—and of direct relevance for legal protection—is the plant variety, also known as a cultivar.

Types of Plant Varieties

Dentro del término genérico “variedad vegetal”, la ciencia y el marco legal distinguen varios tipos según su origen y proceso de obtención:

• Cultivar: This is the most commonly used term in applied botany. A cultivar is a cultivated plant variety selected for its agricultural or ornamental characteristics and maintained through propagation.
• Clone: A group of genetically identical plants obtained through vegetative propagation from a single individual. Clones are commonly used in fruit varieties (such as grapevines and apple trees) and ornamental plants.
• Pure Line: A variety obtained through repeated self-pollination, resulting in a genetically uniform and homozygous population. Pure lines are widely used as the basis for developing hybrid varieties in cereals and vegetable crops.
• Hybrid (F1): The result of a controlled cross between two pure lines. First-generation hybrids (F1) exhibit characteristics that are superior to those of their parent lines—a phenomenon known as hybrid vigor or heterosis—and are particularly important in the commercial seed market.

These different types of plant varieties are relevant both to plant genetic resources—the genetic diversity available for plant breeding—and to determining the most appropriate protection strategy for each case.

The protection of Plant Varieties as an intellectual property right

Why aren’t Plant Varieties protected by patents?

In Spain, Patent Act 24/2015 expressly excludes plant varieties and essentially biological processes for their production from patent protection. This exclusion is not a legal loophole but a deliberate policy choice: the patent system is not designed to accommodate the biological and agronomic particularities of plant breeding.

Instead, a dedicated protection system exists that recognizes the rights of the breeder—the natural or legal person who has created, discovered, or developed the new variety.

Plant Variety Protection Rights (PVR)

The legal instrument used to protect a plant variety is the Plant Variety Right (PVR). Once granted, it gives the breeder exclusive commercial exploitation rights over the variety for a specified period:

• 20 years for most crops (including vegetables, cereals, and ornamental plants).
• 25 years for trees, vines, and other long-cycle species.

A Plant Variety Right means that any person wishing to produce, propagate, sell, import, export, or otherwise commercialize the protected variety must obtain the breeder’s authorization, typically through a licensing agreement.

In Spain, the legal framework governing plant variety protection is primarily established by Act 3/2000 of 7 January on the Legal Protection of Plant Varieties, which incorporates the provisions of the UPOV Convention into Spanish law.

Requirements for Protecting a Plant Variety: DUS Testing and Novelty

To obtain a Plant Variety Right (PVR), a plant variety must meet four fundamental requirements, assessed through the so-called DUS protocol—together with the novelty requirement:

Distinctness (D)

The variety must be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time the application is filed. This distinctness is assessed on the basis of specific morphological, physiological, or molecular characteristics. In practice, this means that the variety must possess at least one observable and measurable trait that sets it apart from all others.

Uniformity (H)

The variety must be sufficiently uniform in its relevant characteristics, taking into account the predictable variations arising from its method of propagation (whether sexual or vegetative). In other words, all plants belonging to that variety must be essentially the same.

Stability (S)

Its essential characteristics must remain unchanged after repeated propagation or reproduction cycles. In other words, the variety must not “drift” or change its profile over time.

Novelty (N)

The variety must not have been sold or otherwise commercially transferred—with the breeder’s consent—prior to the filing date of the application, except within the grace periods established by law: one year before the application date in the country where protection is sought, and four years before the application date in other countries (six years in the case of trees and vines).

Variety denomination

Every protected plant variety must be assigned a valid variety denomination: a unique and identifiable name that does not create confusion with other varieties or existing trademarks. The variety denomination is independent of the trademark under which the variety may be marketed.

Who is responsible for managing Plant Variety protection?

There are three levels of protection, each administered by a different authority:

SPVO — Spanish Office of Plant Varieties (Oficina Española de Variedades Vegetales, OEVV)

The Spanish Office of Plant Varieties (OEVV), an agency of the Ministry of Agriculture, Fisheries and Food (MAPA), is responsible for processing and granting plant breeders’ rights at the national level. It also manages the National Catalogue of Plant Varieties and the Register of Protected Varieties.

CPVO — Community Plant Variety Office

The Community Plant Variety Office (CPVO) is a European Union agency headquartered in Angers, France. It administers the plant variety protection system at the EU level, allowing a single application to provide protection for a variety across all 27 EU Member States. It is the preferred route for breeders intending to commercialize their varieties in multiple European countries.

UPOV — International Union for the Protection of New Varieties of Plants

UPOV is an intergovernmental organization headquartered in Geneva, Switzerland, that serves as the international reference framework for plant variety protection. More than 70 countries are currently members of the UPOV Convention. Its 1991 Convention is the cornerstone legal instrument upon which national and regional plant variety protection systems are built.

The National catalogue of Plant Varieties

The National Catalogue of Plant Varieties is the official register managed by the Spanish Office of Plant Varieties (OEVV), which includes all agricultural and horticultural varieties authorized for commercialization in Spain. Its primary purpose is not to protect intellectual property rights, but to ensure that marketed varieties meet established standards for quality, agronomic value, and denomination.

It is important to distinguish between two separate registers managed by the OEVV:

Commercial Varieties Register: Includes varieties whose seed may be legally marketed in Spain. Registration in this register is a prerequisite for the sale of certified seed, but it does not grant exclusive exploitation rights.

Protected Varieties Register: Includes varieties that have been granted a Plant Variety Right (PVR). Registration in this register confers exclusive rights on the breeder and imposes restrictions on third parties regarding the commercial use of the protected variety.

Both registers are public and accessible for consultation. If you need to verify whether a variety is protected or determine its legal status, you can consult the list of protected plant varieties through the OEVV website or the CPVO database.

Routes for Protecting a Plant Variety: National, European, and International

Depending on the breeder’s target market, there are three main protection strategies available:

National Route (OEVV): Protection valid only in Spain. It is suitable when the variety is intended to be commercialized exclusively within the Spanish market. The application is processed by the Spanish Office of Plant Varieties (OEVV) and may include DUS field trials.

European Route (CPVO): Protection valid throughout all EU Member States through a single application. It is the most efficient option for breeders targeting the European market. The system is administered by the Community Plant Variety Office (CPVO), headquartered in Angers, France, and involves procedures, timelines, and fees that differ from those of the national route.
International Route (UPOV): For breeders seeking protection outside the European Union, the UPOV Convention provides a harmonized framework that facilitates protection across member countries. Unlike the international patent system (PCT), there is no single worldwide application for plant variety rights; separate applications must be filed in each country where protection is sought.

Exceptions to Plant Breeders’ Rights

The plant variety protection system is not absolute. The law provides for two fundamental exceptions that balance breeders’ rights with the interests of the agricultural sector and the preservation of biodiversity:

Breeders’ Exemption (Plant Breeding Exception): Any breeder may freely use protected plant material as a starting point for developing a new variety. This exception is essential for preserving scientific progress and maintaining genetic diversity.

Farmers’ Privilege: Farmers are allowed to save part of the harvest from certain protected species for replanting on their own holdings in the following growing season without requiring the breeder’s authorization, although this generally involves the payment of equitable remuneration. This exception applies only to a specific list of species (mainly cereals) and is subject to conditions and procedures established by law.

Do you need to protect a Plant Variety?

Obtaining a Plant Variety Right (PVR)—whether through the national, European, or international route—involves meeting a series of precise technical and legal requirements. These include the correct preparation of the application, the documentation of DUS characteristics, the management of technical examinations, and the selection of the most appropriate protection strategy for each case.

At PADIMA, we support breeders, seed companies, R&D centers, agricultural cooperatives, and plant developers throughout the entire process—from assessing the feasibility of protection to enforcing their rights against infringement.

If you have developed a new plant variety and would like to find out whether it may be eligible for protection, contact our team. You can also learn more about our Plant Variety Protection services.