AG advises CJEU on rights of plant variety owners
Advocate general Henrik Saugmandsgaard Øe has advised Europe’s highest court on the scope of protection held by owners of plant variety rights.
Yesterday, September 18, Øe concluded that where plants of a protected variety have been bought between the publication of an application and the grant of protection, the purchaser can cultivate and harvest the plants freely.
In August 1995, Nadorcott Protection (a club focused on developing protected vegetables) filed an application to protect a variety of mandarin, called Nadorcott, with the Community Plant Variety Office (CPVO).
Nine years later, the CPVO granted protection, but agricultural cooperative the Federation of Agricultural Cooperatives of Valencia, Spain challenged the decision before the CPVO’s Board of Appeal.
The appeal suspended the grant of protection until it was rejected by the board in November 2005. After rejection, the federation appealed against the decision to the EU General Court, but this was again rejected.
Club de Variedades Vegetales Protegidas (CVVP), an entity mandated to assert the rights of the owner of the Community protection, then brought infringement proceedings against the defendant, Adolfo Sanchís.
Sanchís owns two parcels of land, planted with a Nadorcott variety trees that had been purchased at a nursery, during the period between the publication of the application for protection and the granting of protection in 2006.
CVVP claimed that Sanchís had infringed the rights of the Community protection by planting and commercially exploiting the trees.
The case found its way to the Supreme Court of Spain, which referred a series of questions on the scope and limits of the breeder’s rights to the CJEU.
Yesterday, September 18, the AG concluded that the acts of cultivating and harvesting the fruit don’t fall within the acts referred to in article 13(2) of Regulation 2100/94 so they don’t require the authorisation of the plant variety owner.
However, Øe advised that the owner could invoke secondary protection to oppose acts, such as marketing the fruit, if the product was obtained through the unauthorised use of the variety and where the breeder must have been deprived of a reasonable opportunity to exercise his rights over the variety.
Finally, the AG concluded that where plants are acquired from a nursery during the period between the publication of the application and the grant of Community protection, the purchaser may freely grow these plants as well as harvest and sell the fruits.
Did you enjoy reading this story? Sign up to our free newsletters and get stories like this sent straight to your inbox.
