The declaration of drought across seven areas of England has renewed scrutiny of how British agriculture prepares for hotter, drier and less predictable growing conditions. Low river levels are already affecting farming operations. Some crops are being harvested early, yields have fallen in parts of the country and more than 1,500 abstraction licences are subject to restrictions, while demand for irrigation remains high.

The immediate response is centred on water management. However, Defra had already identified the development of more climate-resilient crop varieties as part of its longer-term plans for English farming.

Its Farming Roadmap 2050: Growing England's Future, says the sector will need to develop and deploy crop varieties that are more productive, sustainable and resilient to climate change. The Government has also committed to funding research into resilient varieties and exploring novel crops for the UK.

Dr Oliver Rutt, Partner, European Patent Attorney and Chartered Patent Attorney at European intellectual property firm Boult, drawing on the firm's specialist plant varieties practice, said:

"The immediate problem for farmers is water, and no variety currently in development will change the conditions they are dealing with this summer. The drought does, however, underline how exposed crop production can be to sustained heat and low rainfall."

"For plant breeders, producing a variety that performs well in research or field trials is not the end of the process. Ownership has to be clear, applications need to be made at the right time, and the breeder needs a workable route through seed production, licensing and distribution if that variety is to reach farms in meaningful quantities."

Plant breeders' rights and variety listing are separate parts of the process.

Plant breeders' rights provide intellectual property protection. They can allow the holder to control certain commercial activities involving the variety, including its production, propagation, sale, import, export and stocking.

For agricultural and vegetable species covered by the listing regime, acceptance onto the relevant Great Britain or Northern Ireland Variety List is needed before seed can be marketed. Applications for plant breeders' rights and variety listing can be made together, but securing one does not automatically provide the other.

Rutt said the distinction can be missed when the focus remains on the scientific development of the crop:

"A breeder may spend years developing a variety and still encounter problems at the point of commercial launch because the ownership, protection or listing position has not been settled."

"These issues are easier to manage while the variety is still being developed. Once commercial trials, seed production agreements and international partnerships are underway, uncertainty over who owns what or who has authority to file can become much more difficult to untangle."

A variety applying for plant breeders' rights must undergo testing to establish that it is distinct, uniform and stable. Variety listing also requires DUS testing, while crops and potatoes must undergo value for cultivation and use trials. VCU testing does not apply to vegetables.

Applicants for variety listing must also arrange for a maintainer. The maintainer keeps records of successive generations of the variety and must allow authorised officers to inspect plant material or request samples. A variety can be removed from the list if nobody can maintain it.

Timing is particularly important when a breeder plans trials, partnerships or an early market launch.

Under current UK guidance, plant breeders' rights are not available where a variety has already been sold or used commercially in the UK for more than one year before the application. The period is four years for commercial activity outside the UK, rising to six years for trees and vines.

Rutt said: "Breeders need to understand when legitimate testing and development activity may become commercial use. Waiting until a variety is ready to launch before considering protection can put years of work at risk."

"The filing strategy also has to reflect where the variety will be grown, produced and sold. At present, new varieties require separate applications for UK and EU plant variety protection. That matters where research takes place in one country, seed is produced in another, and the eventual market covers several territories."

The current territorial position may change under the planned UK–EU sanitary and phytosanitary agreement.

Government guidance published in July says alignment on plant variety rights is expected to give breeders the option of protecting varieties across the UK and EU through a single right. It also says a variety accepted onto the Great Britain Variety List could be added to the EU's common catalogue.

The negotiations are not yet complete, however, and the Government has advised farmers and growers that they are not expected to make changes at this stage.

Rutt said: "A single right covering the UK and EU could simplify the position considerably for breeders working across both markets. It would be premature, though, to treat that as the current system. Until the negotiations are complete and the final arrangements are known, businesses still need to plan around the separate UK and EU routes."

The naming strategy also requires early consideration.

A breeder can sell seed under a trade mark or commercial trade name, but the variety must have an approved denomination. The name registered on the applicable Variety List must be clearly shown on the packaging, even where a separate consumer-facing brand is used.

Rutt explained: "The trade mark, the official variety denomination and the plant breeder's right perform different functions. They need to work together, particularly where a variety will be licensed to several producers or marketed under different brands internationally."

"A name that works well commercially may not be acceptable as the official denomination, or it may create difficulties in another territory. Resolving that shortly before launch can mean changing packaging, agreements or marketing materials that have already been prepared."

Developing a successful new crop variety can involve years of breeding, testing and investment. Plant breeders' rights create a framework through which the variety can be commercially controlled and licensed, giving breeders a route to collect royalties when others produce and market it.

Rutt concludes: "Intellectual property law will not create a climate-resilient crop. What it can do is establish who owns a successful variety, how it may be commercially propagated and sold, and how the breeder is paid when other organisations take it to market."

"Research institutions, breeders, seed producers, distributors and licensees may all be involved before seed reaches a farm. The legal arrangements need to develop alongside the science, rather than being dealt with after the variety has already moved into commercial production."