2011 CIOPORA Chronicle - the 50th Anniversary Edition

Jurisdictions
There is a significant
rise in the number
of plant variety
rights cases in the
horticultural sector
throughout Europe.
This article gives
a comprehensive
overview of court
decisions from the
most prominent
jurisdictions.
by Philippe de Jong and
Thomas Leidereiter*
PVR litigation
on the rise
When compared to trademark
or patent cases,
the number of court
decisions dealing with plant variety
rights (PVR) is still limited. One
reason for this is that most breeders
in the horticultural and fruit industry
run small to medium-sized businesses
and rather use their financial
means to promote R&D activities
than to engage in legal proceedings.
Also, breeders generally tend to
have mixed feelings about engaging
in legal battles against competitors
or growers. Challenging the
validity of a competing variety, for
example, may seriously affect existing
business relationships with that
competitor.
Similarly, suing a grower for
infringement often feels like cutting
into your own hand, as every grower
is a potential customer. Over the
past years, however, PVR owners
have become increasingly aware of
the major importance of enforcing
their rights and have realised that
this is not necessarily to their detriment.
The result is a significant rise
in the number of court decisions in
the horticultural sector throughout
Europe. This contribution does not
envisage discussing all relevant
cases, as there would not be enough
room for that. Instead, the authors
highlight a number of decisions
from the most prominent jurisdictions
which they feel to be relevant.
CJEU
Recently, the Court of Justice of
the European Union (CJEU) issued
its first and so far only ruling on
PVR in the ornamental sector.
In SUMCOL 01 1 the CJEU has
set out decisive standards for the
judicial review of decisions issued
by the Community Plant Variety
Office (CPVO) and its Board of
Appeal (BoA).
In this case, the plaintiff had applied
for Community Plant Variety Right
(CPVR) protection for his variety
SUMCOL 01 (Plectranthus ornatus).
The variety, however, could not
be clearly distinguished from plants
originating from a private South
African garden, which were held to
be of common knowledge.
Consequently, the application was
rejected as was the appeal before
the BoA. The case went up to the
General Court of the European
Union (GCEU), which held 2 that,
due to the botanical complexity
of the distinctness requirement,
the GCEU is entitled to limit
itself to a review of manifest errors
of assessment by the BoA. The
GCEU, furthermore, held that the
publication of a detailed description
of a plant variety may be taken into
account when establishing common
knowledge. The CJEU confirmed
this ruling.
As a result of this decision, breeders
need to be aware that decisions
of the CPVO and its BoA, when
dealing with botanical questions,
such as distinctness, uniformity
or stability, will only be subject to
legal review to a very limited extent.
However, it must be questioned
whether such limitation is in
line with the requirements of the
TRIPS agreement, which requires
that parties to a proceeding shall
have an opportunity for review by a
judicial authority of final administrative
decisions.
GCEU
One further decision has been
rendered by the General Court
of the European Union (GCEU)
regarding a fruit variety. The Gala
Schnitzler case 3 dealt with an apple
(Malus Mill) variety. Upon the
filing of the application, the CPVO
requested the applicant to submit
plant material necessary for the
technical examination and stated
that the applicant was “responsible
for complying with phytosanitary
requirements”.
However, the phytosanitary certificate
was missing and the plant
material proved to be virus infected.
The CPVO concluded that its
instructions had not been entirely
clear and allowed the applicant to
re-sent virus-free material. After the
DUS-test, the holder of the closest
reference variety ‘Baigent’ lodged
an objection against the candidate
variety. He claimed that the office
was not authorised to allow further
material to be submitted and
should have rejected the application.
While the BoA confirmed the
objector’s point of view, the GCEU
held that it is consistent with the
principle of sound administration
for the CPVO to correct defaults in
its instructions.
Thomas Leidereiter.
14 www.CIOPORA.org | CIOPORA Chronicle April 2011