2012 CIOPORA Chronicle

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Law cases In October 1996, De Ruiter received claims by several growers, because supposedly the variety Versilia ® Nirpventyel, owned by Nirp, showed growth deficiencies. At that time, De Ruiter acted as agent for Nirp and represented this breeder in Holland. The growers demanded compensation for the royalty and claimed for damages. by Oscar Peters The ‘Versilia’ case shines light up the liability of breeders In the subsequent period, De Ruiter settled on behalf of Nirp with seventeen ‘Versilia’ ® growers, which led to indemnification and mutual withdrawal of further legal action. One particular grower decided not to settle but to sue De Ruiter. Afterwards, seven growers decided that the compensation received by De Ruiter was not enough and they summoned their respective propagator and sued for cancellation of the contract and compensation of the propagation costs of the Versilia plants made by them. In turn, the four propagators sued De Ruiter for indemnification because the propagators took the position that they had no responsibility whatsoever with the alleged growth deficiencies of the variety ‘Versilia’. The Court of Law decided to treat all the cases together: • Grower versus De Ruiter • Growers versus Propagators • Propagators versus De Ruiter The Court of Amsterdam On September 15th 1999, the Court of Amsterdam in an interim or incident judgment ruled that De Ruiter's defence arguments were insufficient, however De Ruiter was invited to prove that the growth deficiencies were not caused by the variety itself, but partially due to climate conditions (‘Versilia’ did not show any growth deficiencies in South America) and to incompetence of the grower to grow the variety properly (other Dutch growers were able to produce the variety without suffering from the alleged growth deficiencies). On March 5th 2003, the Court decided that De Ruiter did not successfully present its evidence, and condemned De Ruiter, a verdict which was appealed. The Superior Court of The Hague The Superior Court of The Haque in an interim judgment of September 8th 2005, decided to apply the principle of reverse evidence, which implies that the burden of proof lies upon the defendant: De Ruiter. The Superior Court also mentioned that it found the Ruling by the first Court to be not well sustained in the sense that its verdict was based on incomplete evidence, particularly with regard to a lack of investigation on why the variety had not shown the alleged growing problems under different conditions. After several attempts to find an expert to complement this part of the investigation, as well as many deliberations and recommendations of agricultural and horticultural organisations, on September 22th, 2009 the Superior Court decided the following: • Despite all attempts, the claimant could not find an independent expert to undertake further research into the cause of growth failure; • Although not proven, but under the assumption that there was an existing growth deficiency of the variety, and given the fact that the variety was successfully grown and produced by other growers in Holland, France, Ecuador and Kenya, the Court concluded that the variety had apparently genotype characteristics that do express under certain conditions and not under others, which is determinative for the phenomena. • The Court added that even if there were an existing genotype defect of the variety, De Ruiter could not be held liable for that. The Court did consider that De Ruiter had carried out trials in Holland for a sufficient period of time before introducing the variety on the market. During those trials, no growth deficiencies occured. A report issued at the time by the Research Station for Flower Cultivars in Holland, judged the variety as "excellent". De Ruiter therefore did not know about the alleged defect of the variety, nor was the company expected to know about it. • Moreover, the Court stated that the license granted to the growers was related to a natural product of which not all characteristics are or can be known. Since the variety does not come with guaranties, according to the Court, the growers may not expect that the variety performs well under all kind of conditions. De Ruiter had successfully argued that each rose variety has more or less favourable characteristics, which, depending on the climate conditions of the production site, are being expressed or oppressed. A newly introduced variety always 22 www.CIOPORA.org | CIOPORA Chronicle April 2012
Therefore the Superior Court overruled the Court’s verdict and ruled in favour of De Ruiter. contains risks, also with regard to its growth characteristics and performance. The Court also referred to the General Conditions of the Dutch Association of Rose Breeders (VRV) in which Article 3.1 of the mentioned General Conditions stipulates that damages which result from unsound or defect plant material which is caused by a disease or other conditions and cannot be detected or controlled, have to be considered as force majeure. Article 2 of these General Conditions state that damages to the plant is to be considered as the risk of the purchaser after delivery of the plant, even if Article 5.6 requires that the seller of the plant guarantees that the plant material does comply with the generally accepted quality conditions expected of such plant variety. Article 8.1 indicates that the seller cannot be held liable for the performance of the variety in relation to the cultivation method used by the buyer. Rosa 'Versilia' No proven mistakes In a parallel verdict, the Superior Court analysed the relationship and possible responsibility or liability between De Ruiter, acting as an agent of Nirp, in relation to alleged defects of the variety Versilia, and the position of the propagator in propagating and selling the plant material of the variety Versilia to the grower. The Court considered that even if the growth problems were caused by the variety Versilia´s genotype, which under certain conditions could have occured, at the time of delivery of the plant material by the propagator to the grower, these characteristics were not shown or detectable and the delivered material did comply with the common quality requirements of the Dutch General Control Service for Flower Cultivars (NAKB). The propagator, according to the Court, was not aware of any defects of the variety, nor was the company required to be aware. The propagator had delivered exactly what it was supposed to deliver, plant material of the variety ‘Versilia’. In this analysis, it is important to note that the propagator had not made any proven mistakes in the propagation process and that any alleged deficiency of the variety could not be held against the propagator. The sales contract of plant material between a grower and a propagator, even if the variety Versilia is mentioned and forms part of the sales contract, in absence of any guaranties in such sales contract, cannot generate any expectation that the variety will be without any defect. Also, in this case, the Superior Court ruled in favour of De Ruiter, and it exonerated the propagators from any responsibility of an alleged and supposedly existing deficiency of the variety ‘Versilia’. The grower and propagators appealed to the Supreme Court, which on June 24th 2011, rejected the conclusions and ratified the verdict by the Superior Court of Justice. ||| CIOPORA Chronicle April 2012 | www.CIOPORA.org 23
Page 1 and 2: April 2012 • www.ciopora.org The
Page 4 and 5: Table of Contents 08 CIOPORA serves
Page 6 and 7: CIOPORA Members Agro Selection Frui
Page 8 and 9: A welcome from the President CIOPOR
Page 10 and 11: www.fides.nl FI 412 Ciopora adverte
Page 12 and 13: U.S. Plant Patents The United State
Page 14 and 15: U.S. Plant Patents Plants can be le
Page 16 and 17: Opinion The Selecta Group is a worl
Page 18 and 19: Jondle & Associates is a full servi
Page 20 and 21: Law case On 20 October 2011 the Cou
Page 24 and 25: Plant breeders play a fundamental r
Page 26 and 27: Interview FCI had the honour to spe
Page 28 and 29: Interview the bath water. Another a
Page 30 and 31: Patents Parallel to the progress of
Page 32 and 33: Opinion PlantHaven is an independen
Page 34 and 35: Company profiles Founded in 1897, t
Page 36 and 37: International PBR systems As a coun
Page 38 and 39: LAW FIRM WITH FLOWER POWER Smithuij
Page 40 and 41: Marker technology DNA markers were
Page 42 and 43: Marker technology Time periods for
Page 44 and 45: Country profile Ornamental horticul
Page 46 and 47: International PBR systems For more
Page 48 and 49: Enforcement GESLIVE is a nonprofit
Page 50 and 51: 50617 Wuesthoff-Logo 10.11.2005 9:1

2012 CIOPORA Chronicle

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