What are the variety plants ?

1. What are the variety plants ? Fruits, trees, vines, plants, ornemental plants… Protection by Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights

2. Why a community plant variety right ? • To get a commonlegislation • To improveresearch on plants and getbetterqualities of products • To improvepromoteresearch

3. Why not by patent ? • The conditions for patent are not suitable for plants : for ex how to transpose the condition of inventive step if the plant has been justfound (and not created) in the amazonianforest • The Münich Convention (art 53) on patent excludesvariety plants frompatentibility. • But todaywecancreate new plants thanks to genes and biotechnology and thisisnormally patentable, • So thereis a conflictbetween the two scopes of rights. The directive 98/44 on biotechnology protection tries to coordinate the two scopes,

4. directive 98/44 on biotechnologyprotection : scope of patent • Art 3 : inventions…shall be patentable even if they concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used…Concretely a gene or a process is patentable But the result of the patent, this means the plant won’t be patentable. Nevertheless a plant variety right can be registered. The owner can be different from the patent one’s

5. Other case (art 4) : Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. This means that the gene has to be usable for any kind of plant and not for a single variety (for example a gene preventing varieties from putrefaction). In this case the plant, as a result from patent, is also protected by patent. So there is a competition between the 2 rights but the patent is stronger, and so more attractive, because there are less exceptions to the monopoly.

6. Conflictsbetweenmonopoly’stitles • In USA a plant canbepatentedand even, at the differencewith EU (art 92) , companiescancumulate a patent and a plant certificate. So europeancompanies must suffer a distorsion in competitionbecause in most cases theycannotbenefit of a patent whichisstrongerthancertificate • It isalsodifficult to coordinate patent and certificate, between a gene or a process and the plant as a result: « Where a breeder cannot acquire or exploit a plant variety right without infringing a prior patent, he may apply for a compulsory licence for non-exclusive use of the invention protected by the patent inasmuch as the licence is necessary for the exploitation of the plant variety to be protected, subject to payment of an appropriate royalty”.(art 12 directive). .

7. Conditions of validity 4 conditions • Distinct • Uniform • Stable • New Remark : itis not necessary to create the plant. This one can have been justfound in nature.

8. Office’srole • The CommunityPlant VarietyOffice issituated in Angers France • It controls the conditions of validity (art 116) : analysis of the variety’ssamples ; in practice theyentrust national offices (art 55). These offices cooperateeachothersthanks to data bases in order to createcommon standards for plant varieties. • The technicalexaminationoftenrequires to growspecies of varietyduring one or severalseasons in order to determine if there are differenceswithpreviousvarieties. • The technical report is made by national crop experts and the administrative report by the office in Angers

9. distinctness • Art 9 regulation act : “A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge “ • Office, AffA-023/2002 8.10.2003,official Bull 15 dec2003 : refusalbecauseonly 3 out of 37 caractersweredifferentfrom a similarvariety

10. novelty • If itis distinctive itwillbeprobably new • But quid if the varietyhad been already put on the market ? It isnecessary, in principle : « not been sold… earlier than one year before the abovementioned date (date of file), within the territory of the Community” (art 10) • If there are several files on a similarvariety the first file willbe the new one (art 54) • The fact that the breeder had displayed the variety at an official or officially recognized exhibition won’t distroy novelty • The right of priority (art 52) : « If the applicant has already applied for a property right for the variety in a Member State or in a Member of the International Union for the Protection of New Varieties of Plants (Upov) , and the date of application is within 12 months of the filing of the earlier application, the applicant shall enjoy a right of priority”

11. Uniformity Art 8 “A variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics”… (colours, shape, size…). This means that all species cultivated have to be identical. Only little differences are tolerated (5 %)

12. Stability • Art 9. « A variety shall be deemed to be stable if the expression of the characteristics…remain unchanged after repeated propagations or, in the case of a particular cycle of propagation, at the end of each such cycle. “ • This is a condition measured in duration • This condition has to exist even after registration. Article 64 Technical verification : “The Office shall verify the continuing existence unaltered of the protected varieties”. If stability fails there will be a Cancellation of the right (art 21) : “The Office shall cancel the Community plant variety right with effect in futurum if it is established that the conditions laid down in Article 8 or 9 are no longer complied with”.

13. Registration • The documents and the speciescanbefiled in a national office or at the central Office in Angers ; the species have to be sain, without virus • The variety has to bediscribed and to receive a new name (denomination) • Art 59 : Objections to grant of right can be done by “Any person may lodge with the Office a written objection to the grant of a Community plant variety right.” For example if the variety is not new

14. Nullity and cancellation of the right • If the conditions are not fullfiled the nullitywillbedeclared by the Office itself (art 20) or after the « objection » of anyonewithin a short period (3 months) • Cancellationwilloccur « with effect in futurum if it is established that the conditions laid down in Article 8 or 9 (= uniformity and stability) are no longer complied with” (art 21), or if the taxes are not paid. • The appeal against the examination commision‘s decision shall be remitted to the Board of Appeal. Then there is an appeal before the CJ court of first instance and then before CJ • The appeal is suspensive (art 67)

15. The owner • Art 11. « The person who bred, or discovered and developed the variety, or his successor in title”= the breeder. • Is the creation of a employee devoted to the employer ? The Regulation act refers to national law • You can have also co-breeders (joint ownership) • A legal person can file (art 12) • Claiming entitlement to a Community plant variety right (art 98) : “If a Community plant variety right has been granted to a person who is not entitled to it under Article 11, the person entitled to it may, without prejudice to any other remedy which may be open to him under the laws of the Member States, claim to have the Community plant variety right transferred to him. “ For example a breach of contract

16. Duration of Community plant variety rights Art 19 : 25 or 30 yearsaccording to the type of plants

17. Monopoly (art 13) • A Community plant variety right shall have the effect that the holder or holders of the Community plant variety right, hereinafter referred to as 'the holder', shall be entitled to effect the acts set out in paragraph 2 : (a) production or reproduction (multiplication); (b) conditioning for the purpose of propagation; (c) offering for sale; (d) selling or other marketing; (e) exporting from the Community; (f) importing to the Community; (g) stocking for any of the purposes mentioned in (a) to (f) • The juice or the jam of the fruit is also protected • The monopoly also concern the protection of the variety denomination

18. Exception : farmerprivilege (art14) • farmers are authorized to use for propagating purposes in the field, on their own holding the product of the harvest which they have obtained by planting, on their own holding, propagating material of a variety • This means that the farmer can reemploy freely the seeds from the crop in order to produce one another crop, • The privilege is only for some varieties listed in art 14.2 • The exception is free only for small farmers ; for big one’s they have to “pay an equitable remuneration to the holder, which shall be sensibly lower than the amount charged for the licensed production “. The UE Court has estimated that the level could be at 50 % of the normal price of a license (8 th june2006). The amountcanbenegociate (itis the case in Germany) betweenprofessionaltrade unions.

19. farmerprivilege bis • The concreteproblemfor the holderis to determinewho are the users of the privilege. • “relevant information shall be provided to the holders on their request, by farmers and by suppliers of processing services” (seed suppliers) • This privilege is strictly personal to the farmer. Nevertheless it shows astrong lobby of agriculture in UE

20. Exception of the derivedvariety breeder • The breeder can freely exploit the essentially derived variety. • Froma varietyprotectedyoucreate a new variety, itselfsubject to protection or not. It concerns « varieties which are essentially (this means mainly) derived from the variety in respect of which the Community plant variety right has been granted, where this variety is not itself an essentially derived variety”. This means that only the first generation of production is protected by the exception. If the distinction is not enough clear it is not derived and therefore the variety will still be in the monopoly’s scope. • But if the new variety can be protected by variety plant the privilege doesn’t work. Why ? If you want to be protected there is no reason to have this benefit freely. You want a new monopoly, so do respect the previous monopoly (art 15 d). • In this case the breeder must negociate a license with the previous owner (as for improvement license in patent). If the negociation fails a compulsory license is possible. After derivation a crossed license is possible in favor of the first variety ‘ s breeder (art29)

21. Other exceptions (art 15) The Community plant variety rights shall not extend to: • (a) acts done privately and for non-commercial purposes; • (b) acts done for experimental purposes; • (c) acts done for the purpose of breeding, or discovering and developing other varieties; • exhaustion of Community plant variety rights (art 16)

22. Counterfeiting • No common court of justice but an appreciation by national specialized Courts on the basis of Regulationact • Provisionalmeasures in order to stop counterfeiting are possible if itis urgent to do so • Counterfeitingseizuremeasurescanbetaken in orderto prove the infringement • To appreciateit the judge has to compare the species and if necessaryafterhavinggrowedthesespecies. Frequently the judgesneed the report of an an expert • The title’sownercan sue but also the licensee (art 104) • Prescription : 3 years. Starting point : knowledge of the act • States are free to establishcriminal sanctions

23. Counterfeitingbis • Stay of proceedings by court. (art 106). In association with art 105 thistextis not clear: « Where an action relates to a Community plant variety right that has been granted and in respect of which proceedings for revocation or cancellation pursuant to Articles 20 or 21 have been initiated, the proceedings may be stayed in so far as the decision depends upon the validity of the Community plant variety right. “ • It seems that the national Court’s decision may not be given before the Office has decided on the validity of the right (nullity or cancellation for future), but it seems that the Court is not obliged to stay the procedure if it considers the right as valid (presumption of validity of art 105). • If the court stays the procedure the text doesn’t say who can bring the action to the Office : the defender or the Court itself ? It seems that the defender has to bring the action • Another solution would be that the Court would be self competent to decide of validity’s title as it is the case for community trademark and community design. The presumption of validity of art 105 seems to rule out this solution, TGI Paris has decided so, but in appeal Court of Paris modified the solution : the Office is competent for nullity

24. Other trials • Sue for equitable remuneration • Dispute between the giver of license and licensee • “Claiming entitlement to a Community plant variety right…If a Community plant variety right has been granted to a person who is not entitled… claim to have the Community plant variety right transferred to him” can be done. (art 98). But the text doesn’t tell who is competent : community Office or national Court

25. Licenses • Eitherclassicalvoluntarylicense (art27) • Eithercompulsarylicense in case of : • Conflictbetweentwocertificates (art 29 of Regulationact) « On application, the compulsory exploitation right shall be granted to the holder in respect of an essentially derived variety” • on grounds of public interest (art 29)

26. Otheracts • Transfer of the registered title (property right) • A variety plant design may be given as security or be the subject of rights in rem (given for guarantee). • A registered variety plantmay be levied in execution. • Theses acts have to be registered

27. statistics • 48000 files in total in 2013 and 36000 titlesgranted. About 2500 applications per year ; thisnumber si nownearly constant • Cost : if only one seasonalcrop 2500 €