The divergent approaches to harvested material in the UK Nadorcott decision and the UPOV Expert Study
Jocelyn Bosse
The divergent approaches to harvested material in the UK Nadorcott decision and the UPOV Expert Study
Jocelyn Bosse Tuesday, March 17, 2026 - harvested material, Jocelyn Bosse, plant varieties, UPOV
The protection of harvested material has been a controversial feature of plant variety rights (PVR) since its introduction under the 1991 Act of the UPOV Convention. Historically, PVR protection only applied to propagating (or reproductive) material, but the extension to harvested material has meant that cut flowers, grain, fruit, and other important products might fall within the scope of protection.
The UPOV provisions on harvested material contain many legal terms that have proven difficult to apply, as discussed by the Patents Court last week in the Nadorcott case (IPKat here). In that judgment, Mr Justice Mellor referred to a review being undertaken by a UPOV Working Group which is evaluating the UPOV Explanatory Notes on Harvested Material (last revised in 2013). In January 2026, the Working Group published an Expert Study on this issue, but it was released after the trial had concluded, so the Expert Study is not discussed in the judgment. The judgment provides a useful point of contrast with the Expert Study.
Photo by Diana via Pexels.
Protections of Harvested Material
UPOV Article 14 says that certain acts (such as sale and export of a protected variety) require the authorisation of the breeder. It will also infringe the breeder's right if those acts are performed "in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material."
This provision was intended to bring PVRs closer to the level of protection afforded by patents. However, the protections over harvested material are only engaged if two conditions are met: (1) there was "unauthorized use of propagating material" and (2) the breeder did not have a "reasonable opportunity" to exercise his right in relation to the propagating material.
Unauthorised Use of Propagating Material
The Expert Study begins by offering some "clarification as regards some basic law principles" and uses the example of a case from the German Federal Supreme Court of Justice in 2006 (case X ZR 93/04). The same case was referenced in the Nadorcott decision, but to very different effect.
In that case, harvested material of a heather plant variety named 'Melanie' was imported into Germany from France. The variety was only protected by PVR in Germany, not France. The court noted that the principle of territoriality meant that the PVR holder "could not assert his right against the production of propagating material of his protected variety 'Melanie' in France, because the effects of the respective breeder’s right were limited to the territory of Germany." Crucially, however, the production of the plants in France was still held to be "unauthorised." Once the harvested material entered Germany, it was the first "reasonable opportunity" for the PVR holder to assert its rights, so there was infringement.
This German decision was cited in Nadorcott as supporting a territorial approach to PVRs. However, on the question of unauthorised use, Mr Justice Mellor held that "where harvested material derives from territories where the holder does not hold a right over the particular variety, there is no right over that harvested material." Some 'Tang Gold' mandarins were imported to the UK from Peru, Chile and Egypt, where 'Nadorcott' is not protected by PVRs, so even if 'Tang Gold' was essentially derived from 'Nadorcott', there could be no infringement in those instances - the opposite conclusion from the German decision. Mr Justice Mellor highlighted that this conclusion was expressly supported by the 2013 UPOV Explanatory Notes, which state that:
“"Unauthorized use" refers to the acts in respect of the propagating material that require the authorization of the holder of the breeder’s right in the territory concerned (Article 14(1) of the 1991 Act), but where such authorization was not obtained. Thus, unauthorized acts can only occur in the territory of the member of the Union where a breeder’s right has been granted and is in force.”
On this point, the Expert Study says that the UPOV Explanatory Notes are simply wrong.
Looking that the travaux préparatoires and Records of the Diplomatic Conference of the 1991 UPOV Convention, the Expert Study says that the current language of the Explanatory Notes "clearly runs against the evidenced intentions of the UPOV 1991 drafters and, if accepted, it would devoid the extended scope of the breeder’s right to the harvested material in the country where the right is granted and valid." The drafters intended that the concept should refer to "authorization of the holder of the breeder’s right at issue and not to the legal status of the propagating material used for obtaining the harvested material" (supported by analysis of the definition of exhaustion in Article 16). The Expert Study concludes at [10.4] that:
“the authorization of the breeder’s right holder is required, for all acts ... related to the harvested material so obtained outside the validity of the respective breeder’s right, when that harvested material enters into, and is distributed in the territory where the respective breeder’s right is valid.”
Reasonable Opportunity
Turning to the condition that the breeder did not have a "reasonable opportunity" to exercise his right in relation to the propagating material, the Expert Study emphasised that this provision "serves as a safeguard against disproportionate enforcement and retroactive claims when the breeder had the chance to act earlier but failed to do so."
When UPOV 1991 was being negotiated, the earlier proposed language was that the breeder "had no legal possibility" to enforce their rights - which the Expert Study highlighted to support their point about the intention to cover export from territories without protection. However, the more flexible language of "reasonable opportunity" was proposed by the United States. The Expert Study took the view that:
“reasonable opportunity clause imposes a proportionality check on enforcement. Rather than adding a new interpretative layer, it operationalizes the intention expressed during negotiation that enforcement should occur as early as possible and only descend the cascade when earlier intervention was not legally or practically feasible.”
The latter focus on whether enforcement was "practically feasible" came up in Nadorcott. Much of the fruit had been imported from Spain and South Africa, where PVRs were granted and being litigated. Mr Justice Mellor held that the UK provisions did not take account of any corresponding PVRs in other jurisdictions. But if they did, the infringement litigation in Spain and South Africa had continued for decades without a first instance judgment - far longer than the drafters would have anticipated or considered reasonable.
Mr Justice Mellor concluded that "exercise his rights" means "that the right has been enforced to the extent available, not merely asserted. In this context it entails that the obtaining of harvested material has been prevented." This conclusion was helped by an important difference between UPOV (and the EU PVR Regulation) and the drafting of the UK Plant Varieties Act: section 6(3) says that the breeder must have had "a reasonable opportunity before the harvested material is obtained to exercise his rights in relation to the unauthorised use of the propagating material."
However, the Expert Study suggests a different approach to this question (albeit one that would arrive at the same result). They say that the Diplomatic Conference understood the word "exercise" primarily as royalty collection or licensing, as opposed to "enforcement" for legal remedies. Therefore, the phrase "reasonable opportunity" only referred to whether the breeder had a realistic commercial opportunity to act at an earlier stage, not on whether litigation was available.
Final Thoughts
By examining the UK decision in Nadorcott and the recent UPOV Expert Study side-by-side, we can see how the text of the UPOV Convention and national PVR laws might not always lead to the interpretation that the drafters intended.
However, the approach of the Expert Study relies very heavily on the travaux préparatoires and Records of the Diplomatic Conference of the 1991 UPOV Convention. It is important to remember that under the Vienna Convention on the Law of Treaties, the general rule of treaty interpretation (Article 31) focuses on "the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Under Article 32, the supplementary means of interpretation (e.g., travaux préparatoires) can only be used to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
The terms "unauthorized use" and "reasonable opportunity" are certainly controversial - but does an ordinary interpretation really leave their meaning ambiguous or obscure, or manifestly absurd or unreasonable? This Kat is not yet fully convinced [Merpel: as always, anyone who thinks they have a convincing argument is welcome to comment below]. And if the rules of treaty (or statutory) interpretation don't support the meaning that the drafters intended, perhaps the conversation needs to focus on revising the text of the treaty (or legislation), rather than giving too much weight to supplementary means of interpretation to achieve a desired outcome.
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https://ipkitten.blogspot.com/2026/03/the-divergent-approaches-to-harvested.html