Gert Würtenberger

At this stage all circumstances indicate at the moment that the United Kingdom will leave the EU shortly without having achieved an agreement with the European Union. Thus, it is important to know how plant variety rights granted on the Union level or applications pending with the CPVO will be dealt with once the United Kingdom no longer will be a Member State of the European Union. Moreover, it will be of importance under which conditions the marketing of plant reproductive material will be dealt with.

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Proof to be established to achieve nullity of a granted plant variety right

Gert Würtenberger

A party had requested the cancellation of a CPVR for an apple variety on the grounds that the variety had no longer been uniform or stable for a certain period of time. As proof for the allegation, the Applicant inter alia submitted 6 photographs of the attacked variety. These photographs had been taken by the Examination Office in other proceedings for grant of a CPVR as proof that fruits of the candidate variety were of the same size as those of the reference variety and thus not distinct. With these photographs the Applicant wanted to prove in the cancellation proceedings that the apples of the attacked variety did no longer show the striation as noted in the description of the protected variety. In addition, a declaration of a renowned expert was filed, explaining that such photos did not show the striation as included in the description of its characteristics.

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Public Interest and Compulsory Licences

Gert Würtenberger

In its decision dated 28 March 2018 the CPVO decided about an application for grant of a compulsory licence pursuant to Article 29 of Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community Plant Variety Rights in respect of a blackcurrant variety. The Applicant had failed to achieve a favourable outcome of its negotiations with the variety holder for grant of a licence. For this reason, the Applicant strived for grant of a compulsory licence by the CPVO.

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Brexit: What will happen with Community Variety Rights

Gert Würtenberger

With regard to the pending withdrawal of the United Kingdom from the European Union there is only one certainty up to this point: on 29 March 2019 United Kingdom of Great Britain and Northern Ireland will leave the European Union (Brexit). On that day Community plant varieties rights will cease to have effect in the United Kingdom. At this point there is still uncertainty how the United Kingdom will deal with such rights.

The European Union and the United Kingdom are negotiating at the moment the draft Agreement on the withdrawal. The last status published of the draft Agreement is dated 19 March 2018. Title 4 deals with Intellectual Property.

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Invalidation and Nullity Proceedings – What is the Duty of the CPVO

Gert Würtenberger

As the conditions laid down in Articles 7 (distinctness), 8 (uniformity), 9 (stability) and 10 (novelty) are prerequisites for the grant of a Community plant variety right, the same is unlawful if it turns out that one of these conditions is not or no longer given. In this case, it is in the public interest that such a right shall be declared null and void. The relevant conditions are provided for in Articles 20 (nullity) and 21 (cancellation). While the CPVO has the duty to open invalidation proceedings ex officio if it becomes aware, inter alia, through its examination practice that a protected variety did not fulfill the protection requirements at the time protection was granted or does no longer fulfill the same, applications to declare a protected variety to be null and void can also be filed by third parties. In such a case, two questions arise: Under which conditions has the CPVO a duty to follow the request of an Applicant to open invalidation or nullity proceedings and to which extent is it obliged to develop own investigations in order to examine whether the conditions for nullity or invalidation are given. In the following matter, the General Court of the European Union gave guidance to answer these questions:

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Compulsory License and Plant Variety Rights

Gert Würtenberger

The President of the Community Plant Variety Office (CPV), Mr. Martin Ekvad, reported in a recent conference on the Intellectual Property Protection for Plant Innovation in Amsterdam on 30 November and 1 December 2017 that the CPVO has received a first request for a compulsory license. According to that provision, a compulsory license shall be granted only on grounds of public interest and after consultation of the administrative council.

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Judgment of the General Court of 13 July 2017 – Case T-767/14

Gert Würtenberger

One of the prerequisites for obtaining a Union plant variety right for a breeding result is that the variety is new. A variety will be deemed to be new if, at the date of application, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others by or with the consent of the breeder for purposes of exploitation of the variety, either earlier than one year before the application date within the territory of the Community or earlier than four years or, in the case of trees or vines, earlier than six years before the application date outside the territory of the Community (Article 10 of Regulation 2100/94 on Community Plant Variety Rights -the Regulation.

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EPO – News rules relating to patentability of essentially biological processes

Gert Würtenberger

After the European Patent Office (EPO) decided in December 2016 to stay the proceedings in certain biotechnology cases as a reaction to the notice of the European Commission related to certain articles in the Directive (98/44/EC)  on the legal  protection of biotechnical inventions the Administrative Council of the EPO decided on 29 June 2017 to amend the Rules 27 and 28 EPC in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process based on a proposal made by the EPO [here] . The amended rules now read as follows (amendments emphasized):

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Decision in case C-625/15 P “Gala Schnitzer”

Gert Würtenberger

On 8 June 2017 the Court of Justice of the European Union (CJEU) published its decision in case C-625/15 P “Gala Schnitzer”(here)  on the competence of the President of the Community Plant Variety Office (CPVO). The question was whether the President has the power, following the technical examination of a candidate variety and before the Technical Division takes a decision to grant protection for the candidate variety, to add an additional characteristic that had been observed in the course of the technical examination, although such an additional characteristic is not (yet) mentioned in the relevant technical protocol to be observed in the assessment of distinctness of the candidate variety.

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First Contours of a Damage Claim in Accordance with the Law on Community Plant Variety Rights

Gert Würtenberger

By means of the Directive 2004/48/EC on the Enforcement of Intellectual Property Rights (hereinafter abbreviated to Enforcement Directive) the European legislator – in order to guarantee a high and homogeneous level of protection within the European Union – has provided a framework for the national legislators of the Member States relating to substantive and procedural sanctions and the implementation of procedural instruments for the enforcement of intellectual property rights. The core of the Directive, besides Articles 6 to 9 concerning the enforcement and protection of a variety of claims deriving from property rights, are Articles 10 to 15 that are devoted to the legal consequences resulting from an ascertained infringement of property rights. Besides the rights to claim destruction, recall and removal, damage claims according to Article 13 are of particular significance.

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