2012 CIOPORA Chronicle

The exclusion in the UPOV system of
such a reference to the “use” of a protected
variety constitutes an unjustified
(and unfair) limitation as compared to
other intellectual rights such as patents
and in practice curtails the possibilities
of the breeders of new fruit varieties for
enforcing their rights.
2) Provisional protection
The so called provisional protection
available during the period between
the filing or the publication of the
application for the grant of a breeder’s
right and the grant of that right appears
to be recognized under Article 13 of
the UPOV Convention of 1991, which
establishes the need to safeguard the
interests of the breeder, as a minimum
by entitling him to equitable remuneration
from any person who, during such
a period, has carried out acts which,
once the right is granted, require the
breeder’s authorization. This principle
is upheld by the EU in Article 95 of the
EC Regulation 2100/94.
Exclusive rights
to exploitation
However, these legal precepts say nothing
about the ability of the breeder to
oppose the continuing exploitation of
the variety (for example, by selling the
harvested material) propagated without
his authorization during that period,
once the protection has been granted.
In practice, this consideration is very
important due to the prolonged period
of technical examination involved with
many species (in particular with vine
and tree species, which in extreme
cases in the EC have gone on for up to
10 years!!) during which the breeder
is obliged to deliver the variety. We
have already stated that fruit trees may
remain in production for long periods
of up to 20 years in some species like
apples and citrus. In many cases the
breeder is not interested in the so called
“equitable remuneration” (once again
this term is ambiguous and open to
interpretation by each judge, with the
legal uncertainties that this involves)
of whatever third parties may have
acted without authorisation before the
protection is granted, but rather wishes
to oppose such activity and reserve their
exclusive rights to exploitation.
Full protection
Happily, at least in certain countries
such as Spain, the prevailing interpretation
in legal judgments is that provisional
protection, conceived as merely
a right to remuneration, should be
understood as an extension of the full
protection which displays in plenitude
all the rights once the title is granted,
and not just as a pseudo protection
for its whole duration. As a result, the
breeders cannot only claim remuneration
but also oppose the continuing
exploitation when suffering abuses by
third parties for acts done completely
outside their control, assuming that
legal protection is granted. The opposing
interpretation would not only
contradict, in our view, the true spirit of
the UPOV Convention (see article 7.3
of the 1978 Act 2 ) but would also heavily
restrict the effective rights of fruit tree
breeders and therefore encourage third
parties with unhealthy intentions to
reproduce varieties, without the risk
of their unauthorised operations being
reversed. |||
* Antonio Villarroel is a lawyer and
general manager of GESLIVE, A.I.E.
1 Under the European Regulation
2100/94, ‘materials’refers to both the
‘constituents’and to the ‘harvested
material’.
Constituents: entire plant or parts of
plants as far as such parts are capable
of producing new entire plants (such
as seeds, cuttings, grafts, etc.)
Harvested material: grains, fruits,
fl owers, etc.
2 Provisional protection […]
Any Member State of the Union may
provide measures to protect the breeder
against abusive acts of third parties
committed during the period between
the filing of the application for
protection and the decision thereon.
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