CJEU outlines scope of rights for plant variety owners
The Court of Justice of the European Union (CJEU) has today, December 19, outlined the scope of protection held by owners of plant variety rights in a decision involving a variety of mandarin.
Affirming advocate general (AG) Henrik Saugmandsgaard Øe’s September opinion, the CJEU held 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.
Nadorcott Protection, a club focused on developing protected vegetables, filed an application to protect a Nadorcott, a variety of mandarin, with the Community Plant Variety Office (CPVO) in 1995.
The CPVO granted protection nine years later, but agricultural cooperative the Federation of Agricultural Cooperatives of Valencia, Spain challenged the decision.
The appeal suspended the protection until it was rejected in November 2005. The federation then appealed to the EU General Court, but this appeal was also rejected.
Subsequently, Club de Variedades Vegetales Protegidas (CVVP), an entity which asserts the rights of Community protection owners, brought infringement proceedings against defendant Adolfo Sanchís.
Sanchís had purchased Nadorcott variety trees at a nursery, during the period between the publication of the application for protection and the granting of protection, and then planted them on his land.
According to the CVVP, Sanchís had infringed the rights of the Community protection by planting and commercially exploiting the trees. After moving up through the courts, the Supreme Court of Spain referred a series of questions on the scope and limits of the breeder’s rights to the CJEU.
Today, the CJEU confirmed that the activity of cultivating a protected variety and harvesting the fruits of it (which aren’t likely to be used as propagating material) required the authorisation of the holder of the protection.
However, the fruits can’t be regarded as having been obtained by unauthorised use when they were sold to a farmer during the period between the publication of the application for plant variety protection and its granting.
The court went on to conclude that when, after the granting of this protection, the “varietal constituents have been multiplied and sold” without the consent of the holder of the protection, the holder may exercise his rights over the variety.
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