When others want to trial your variety, get it right or everyone loses
More plant breeders are running larger, more public variety trials. Structured the wrong way, a trial can cost the breeder the right to protect the variety, and cost the trialling party the upside they worked for. Here is how to protect both.
In short
A trial is a limited, well-defined step toward commercialising a variety, not commercialisation itself. The law keeps trials narrow to protect novelty, and the UPOV Explanatory Notes (guidance, not binding law) describe the small room you have to evaluate a variety without breaking it. That narrow scope protects the breeder but can expose the trialling party, so handle the commercial side up front: agree the option and the licence terms a successful trial will trigger, kept properly separate so novelty is never at risk.
More plant breeders are trialling new varieties, and more of them are doing it openly: larger sites, and the announcements to match. That is good for the market. It also makes the trial a moment worth being deliberate about, because how a trial is defined and managed shapes what the variety will be worth, and who will be in a position to commercialise it.
Two parties sit on either side of that trial, and what protects one can expose the other. For the breeder or IP holder, one of the concerns is making sure the novelty deadline is never triggered during a trial. A variety can only be protected while it is still new, so put it out the wrong way and the right can be lost before an application is ever filed. For the potential licensee running the trial, the same narrow scope that guards the variety's novelty, explained further below, is what leaves them with no commercial rights in it, however much money and time they put into proving it.
Novelty: what it is, and why being aware of it should matter to you
A plant variety right is only available while the variety is still new. Novelty is a precise, technical thing: it can be lost once propagating or harvested material has been sold or otherwise disposed of, with the breeder's consent, in order to exploit the variety, beyond a short grace period. It is the sale or disposal of material, not the act of filing, that starts that clock; the grace period is then measured back from the filing date. Under the UPOV 1991 Act, Article 6, and EU Regulation 2100/94, Article 10, it runs to one year where the disposal took place in the territory in which protection is later sought, and four years, or six for trees and vines, where it took place elsewhere. There is more to novelty than this, but the part that decides the fate of a trial is what this piece is about.
Novelty deadline estimator
A rough guide to when a plant variety right would need to be filed, based on the standard grace periods. Enter where and when the variety was first sold or disposed of for exploitation.
Enter a date to see the estimated deadlines.
Estimate only, not legal advice. It applies the standard UPOV and EU grace periods (one year in the territory of filing, four years elsewhere, six for trees and vines), assumes the first sale was a genuine commercial disposal, and assumes that single first sale is the only sale. Each further sale, in another territory, starts its own deadline there. Many other things affect novelty in practice, including what counts as a disposal, the breeder's consent, earlier trials, and national variations. Confirm any date with us before you rely on it.
An example shows how easily the clock starts. Take a new apple variety. Before any application is filed, the breeder, or a third party they have contracted, sells a commercial quantity of the crop to wholesalers in its home market, under the variety's given name. That would very likely count as exploitation, and the grace period begins to run. From that first sale or disposal there is one year to file where protection is sought; miss it and the variety is no longer new there, and the right is gone for good.
None of this makes the law an enemy of trials, or of the IP holders behind them. The opposite is true. Novelty exists for a reason: a plant variety right hands the breeder years of exclusive control, and in fairness that bargain is open only to something genuinely new, not to a variety already out earning in the market. The law balances that principle against a practical truth, that you cannot tell whether a variety is worth commercialising without trialling it first. So UPOV and the EU regulation set out the mechanics. Material supplied purely for evaluation, with the breeder keeping the sole right to dispose of it and the variety left unnamed in any sale, is not exploitation, and where the trial is structured correctly it does not trigger novelty. The UPOV Explanatory Notes support this. In practice a breeder can:
- pass material to someone multiplying it on the breeder's behalf, provided the agreement returns the multiplied material to the breeder, or the breeder otherwise keeps control of it;
- supply material for field, laboratory or small-scale processing trials meant to genuinely evaluate the variety;
- sell genuine surplus or by-product for consumption, provided it goes out without the variety being named.
The common thread is control. The breeder keeps hold of the material, and the crop never reaches the market as that variety. That is one of the key levers that keeps a trial from tripping the novelty deadline, and that control is usually retained and defined through a trial contract.
But even with a well-drafted contract, trouble starts when the day-to-day drifts away from the narrow purpose the contract sets. A badly worded invoice for the trial crop, fruit sold under the variety name, volumes that look like supply rather than evaluation, an agreement worded too loosely: any of these can push what was a trial into a sale for exploitation, and start the very clock it was meant to avoid.
A trial is a step on the road to commercialisation, not the destination. The law keeps it that way, and so should your contracts.
A solid trial contract, paired with the guide that makes it work
A trial that is not properly drawn can damage the right in ways that only surface later, and every case turns on its own circumstances. What matters is control, and control takes, in our experience, two things working together.
The first is a trial agreement drawn for the job. It narrows the scope, fixes the purpose as evaluation only, keeps the breeder's sole right to dispose of the material, sets out what happens to the plant and the harvested material, and rules out selling the crop under the variety name. The drafting has to fit the facts, too. A glasshouse screen, a multi-site field trial and a pre-commercial grow-out are not the same exercise, and stretching one template across all three is how gaps appear.
The second is the part we, at Greenstone, find matters most in day-to-day operations. A trial runs for months, sometimes years, in the hands of people who never revisit the contract: agronomists, packers, sales staff. A clause in a signed agreement does not help them at the moment a decision is made. A short, plain, one-page guide does, a practical set of do's and don'ts that tells everyone near the trial what they can and cannot do with the material and the crop. So alongside the agreement we give our clients an easy-to-read, one-page guide to sit beside it, because novelty is just as easily triggered by the wrong day-to-day behaviour as by the wrong clause.
What the trialling party stands to lose
That same narrow scope, so useful for keeping the novelty deadline at bay, can leave the other side of the table exposed. A grower or potential licensee puts real money and a full season into proving the viability of a variety, while the trial agreement, by design, gives them no commercial rights in it. We find that too often the commercial terms appear only once the variety has performed, by which point the money is spent and the leverage has gone. It is a weak place to negotiate from, and it is avoidable.
The part that is easy to miss is this: keeping the trial narrow and settling the commercial future are not in conflict. The trialling party can hold the trial to a clean evaluation and still agree, in advance and even in broad terms, the structure of the deal that a good result will unlock. Done well, that is how they gain commercialisation rights without endangering novelty, which matters to them as much as to the breeder, since a variety that loses its novelty may never become the right they hoped to license.
Agree the upside before the season starts
The cleanest arrangement, where the circumstances allow, gives the trialling party an option to commercialise the variety if the trial succeeds, alongside the heads of terms of the licence that would follow, broad or specific: the royalty basis, the territory, exclusivity and term, agreed in principle from the outset. A good trial can then trigger a deal both sides already understand, rather than opening a fresh negotiation, and the breeder gains a committed partner and a route to market mapped in advance.
Agreeing a future option does not, in itself, trigger novelty, as long as the trial stays a genuine evaluation and the option is kept separate from it.
Treated as a formality, a plant in the ground and a handshake, a trial can cost both sides dearly. Treated as what it is, it becomes the moment the whole commercial relationship is settled. Get it wrong and the breeder can lose the right while the trialling party loses the upside. Get it right and the season that proves the variety also sets the deal that rewards everyone who backed it.
That outcome is no accident. It comes from understanding the law, reading the commercial reality on both sides, and building the trial so that it guards the variety and opens the route to market in the same move. That is the difference between a trial that is only a cost and one that is the first real step toward a commercialisation worth having.
Frequently asked questions
Can trialling a variety stop me from protecting it?
It can, though it does not have to, and getting that right is rather the point. A plant variety right is only available while the variety is still new, and novelty is lost once propagating or harvested material has been sold or otherwise disposed of for purposes of exploitation beyond the grace period. It is the sale or disposal that starts the clock, not the act of filing; the grace period is simply measured back from the filing date. That period is one year where the disposal took place in the territory in which you later seek protection, and four years, or six for trees and vines, where it took place elsewhere. Cross it and novelty is gone for good.
Does the size of a trial decide whether it breaks novelty?
Not necessarily. In our reading of the law, it is purpose and control that matter more than acreage, though a trial should still be kept limited, small-scale and justifiable, and what counts as limited depends on the crop, the parties and the territories involved. UPOV's Explanatory Notes on Novelty, which are interpretive guidance rather than binding law in themselves, recognise that you cannot reach the market without trialling first, and describe the disposals that do not count against novelty: multiplication where the material reverts to the breeder, bona-fide evaluation trials, and surplus sold without the variety being identified. A limited trial kept within those bounds can be fine; one that quietly sells the crop under the variety name may not be.
What should a trial agreement actually cover?
Depending on the trial, it generally fixes the purpose as evaluation only, keeps the breeder's exclusive right of disposal over the material, controls what happens to the plant and the harvested material, and bars onward sale of the crop under the variety name. A glasshouse screen, a multi-site field trial and a pre-commercial grow-out are not the same exercise, so the agreement has to match the facts rather than rely on a single template. In our experience a contract alone is not enough; the people running the trial day to day also need a short, plain-language guide to what they can and cannot do.
If a trial goes well, how do we move to a commercial licence?
It is not a must, but ideally the parties decide that before the trial, not after. The cleanest structure gives the trialling party an option to commercialise if the trial succeeds, plus the heads of terms of the eventual licence, where known: the royalty basis, territory, exclusivity and term, agreed in principle up front. Agreeing such an option does not by itself affect novelty, since the clock turns on disposing of material for exploitation, not on contracting about the future, provided the option is kept properly separate from the trial. In our view it often sits best in its own document alongside the trial agreement.
Book a free 30-minute session
Planning a variety trial, or about to run one for someone else? In a free 30-minute call, we will give you a quick read on how it is set up and flag where a closer look would pay off.
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About the author
Tomer Biran, Founder of Greenstone
Tomer Biran is the founder of Greenstone. He has spent more than twenty years on both sides of the table: as a qualified lawyer and former General Counsel to international organisations across multiple jurisdictions, and as a founder and operator of B2B and B2C businesses across the UK, EU, and US. He has served as General Manager of a leading plant breeders' company with a global footprint and as General Counsel of an international fresh produce marketing group. He holds a Master of Law and Business from WHU and Bucerius Law School in Hamburg, where he was a Joachim Herz Excellence Scholar, and a Bachelor of Laws. That blend of commercial operating experience and legal depth is what drives Greenstone's commercial-first approach to plant variety rights and commercialisation.
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