General

Israel has been a member of the International Union for Protection of new Varieties of Plants ("UPOV") since December 12, 1979. The Israel "Plant Breeders' Rights Act 1973" ("Plant Breeders' Act") is synchronized with the principals of the UPOV.

There are several additional laws regarding the use, import and export of plants. See for example the Plant Import Regulations of 1970 under the Plant Protection Act 1956.

The Patents Law 1967 ("Israeli Patents Law") provides patent protection to any invention of any technical nature, chemical, biotechnological, mechanical and electronic inventions, including bioengineered (not naturally occurring) organisms (including plants), diagnostic methods and “second indication” pharmaceuticals. Excluded from the patent protection in Israel are new varieties of plants or animals as well as treatment methods on humans.

Under Israeli law, a trade secret is any confidential information, which provides its proprietor an advantage over his competitors.  Information is confidential as long as it is not in the public domain, or easily available, and its proprietor takes reasonable steps to preserve its confidentiality.  A breeder may choose not to register his variety of plant with the Plant Breeders' Register. If the breeder takes reasonable steps to preserve its information confidential, he will enjoy the trade secret protection as offered in Israel.

Registrability

All species or groups of plants are eligible for protection (under Israeli Patents Law and Plant Breeders' Act), if the plant is new; sufficiently stable in its basic characteristics and uniform, i.e. its description and characteristics are maintained even after repeated propagation. Israeli law includes specific regulations for marketing and planting propagating material of strawberry and carnation.

Forms of intellectual property protection

• Plant parts (e.g., flowers, cells or seeds)

Plant Breeders' registration protects the proprietor's rights in harvested or entire plants, which were obtained through propagating materials from a protected variety, without authorization.

In order to import or sell plant seeds, one must comply with the Law of Seeds 5716-1956, i.e. obtain a license from the Ministry of Agriculture. In addition, there are specific Seed Regulations regarding genetically modified organisms and propagating material according to which unauthorized experimental use is forbidden.

• Plant cellular components (e.g., genes)

Under chapter one of the Plant Breeders' Act, the definition of "variety" which the Plant Breeders' Act protects is:

"a group of plants within a single botanical tax on of the lowest known rank which, irrespective of the extent to which conditions for the grant of a breeders' right have been met, can be: defined by the expression of the characteristics that result from a given genotype or combination of genotypes; distinguished from any other group of plants by the expression of at least one of the characteristics said in paragraph (1); deemed an independent unit in all respects of its suitability for being propagated without change;"

Therefore, the Plant Breeders' Act provides for the intellectual protection of plant cellular components (such as genes).

Period of protection

The Plant Breeders' Act period of protection, for most plants, is twenty years from the date of registration. Excluded are varieties of vines, fruit trees, forest trees and any other perennial plants, which are given twenty five years of protection from the date of registration. The registration is maintained by annual renewal fees.

Deposits of plant material required for intellectual property protection.

Plant Breeder's Rights

Deposits of plant material are required for PBR registration. The deposits are held by the PBR Council – a public agency which is part of the Ministry of Agriculture. The deposits are not publicly available these are only available to the Council's examiners during examination.

Exceptions to protection

There are several decisions regarding the protection or enforcement of intellectual property rights in plant varieties in Israel. The decisions mostly concern infringements of PBR, the meaning of the term "new varieties", unauthorized use and bona fide use of unregistered varieties etc. In this regard we note the following important sections of the PBR Act:

• Section 44 of the Act provides protection for a bona fide user of a registered variety. In order to be protected under this section, the user must prove bona fide use for at least 3 years prior to the date of application. Such user, may continue its use of the protected variety only personally and only in the course of his own business.
• Section 37 of the Act provides that a person may use propagating material of a registered variety without the consent of the proprietor:
  • for experiments in developing a new variety;
  • for research, science, laboratory tests or private use (not for commercial purposes).