Are you a budding plant varieties lawyer? If so, read on ...

Lacking opposable thumbs, Kitty always
had trouble with her flower-arrangements

Don't mock plants. They are just as profitable as other intellectual property subject-matter if you can deploy your skills correctly, and they can be exciting to litigate too. Once they're in the ground, they don't move around very much -- but plant varieties (PV) lawyers travel quite a bit; sometimes they even get to visit Luxembourg once in a while when they take PV disputes to the European Union's highest court.

A lovely bunch of lawyers, a sweet-scented bouquet of advocates no doubt, will soon be there to argue the merits of Case C-509/10 Josef Geistbeck and Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH, a reference for a preliminary ruling from the German Bundesgerichtshof. So what is it that the Bundesgerichtshof, the veritable flower of German judiciary, seeks from the Court of Justice? The reference reads like this:

"The following questions on the interpretation of Council Regulation ... 2100/94 ... on Community plant variety rights ... and of Commission Regulation ... 1768/95 ... implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation ... 2100/94 on Community plant variety rights ... are referred to the Court of Justice of the European Union ... 

(a) Must the reasonable compensation which a farmer must pay to the holder of a Community plant variety right in accordance with Article 94(1) of the CPVR Regulation because he has used propagating material of a protected variety obtained through planting and has not fulfilled the obligations laid down in Article 14(3) of the CPVR Regulation and Article 8 of the Community Planting Regulation, be calculated on the basis of the average amount of the fee charged for the licensed production of a corresponding quantity of propagating material of protected varieties of the plant species concerned in the same area, or must the (lower) remuneration which would be payable in the event of authorised planting under the fourth indent of Article 14(3) of the CPVR Regulation and Article 5 of the Community Planting Regulation be taken as a basis for the calculation instead? 

(b) In the event that only the remuneration for authorised planting must be taken as a basis for the calculation: in the circumstances described above, may the holder, in the event of a single intentional or negligent infringement, calculate the damage for which he must be compensated in accordance with Article 94(2) of the CPVR Regulation as a lump sum based on the fee for the grant of a licence for the production of propagating material? 

(c) Is it permitted or even required, when assessing the reasonable compensation due under Article 94(1) of the CPVR Regulation or the further compensation due under Article 94(2) of the CPVR Regulation, for the special monitoring costs of an organisation which protects the rights of numerous holders to be taken into account in such a way that double the compensation usually agreed, or double the remuneration due under the fourth indent of Article 14(3) of the CPVR Regulation, is awarded?"

The IPKat can't wait to find out the answers though, like all cats, the concept of losing sleep over them (or indeed anything else) is alien to his personal experience.  Merpel says, is "propagation" the fusion of the words "proper" and "litigation"?

Plectranthus ornatus withers in Luxembourg

Possibly overshadowed by the ruling in the Salvador Dali case (noted here by the IPKat), Case C‑38/09 P, Ralf Schräder v Community Plant Variety Office (CPVO) is an altogether less publicly visible event -- an appeal to the European Union's highest Court against the General Court's dismissal of an appeal from the CPVO. The IPKat has been assiduously following this dispute: see "Just Another Plectranthus, says the CFI", "A Lion Roars ... a Kat Laughs" and "Don't Dig Up Technical Assessments, Warns AG").

Right: Plectranthus ornatus -- very cute, but it never stood up in court

In short, Schräder applied to the CVPO for a Community plant variety right under Council Regulation 2100/94 on Community plant variety rights. The candidate variety, SUMCOL 01, was originally thought to be a Coleus but it was later agreed that it was a Plectranthus. The CPVO asked the Bundessortenamt (the German Federal Plant Variety Office) to conduct a technical examination, which it did, finding that SUMCOL 01 was not distinct from Plectranthus ornatus but that the examination had to be retaken. The examiner responsible for the technical examination then asked the curator of the Kirstenbosch Botanical Gardens in South Africa to provide cuttings or seeds to use as reference varieties against which SUMCOL 01 could be examined. The curator replied that the species to which SUMCOL 01 belonged was commonly grown in South Africa and that he knew that species very well. The final report of the Bundessortenamt concluded that SUMCOL 01 was not distinguishable from the reference variety sent from Kirstenbosch.

In the light of this, the CPVO rejected Schräder's application for lack of distinctiveness. Schräder appealed to the CPVO Board of Appeal. There followed further investigations and even a visit by one of its members to South Africa, for which the CPVO sought to charge Schräder an advance of 6,000 euro. Schräder refused to pay, arguing that he had not sought the field trip to South Africa and challenging the evidential basis of the Board's decision. The Board of Appeal ultimately dismissed Schräder's appeal against rejection of his application, determining that SUMCOL 01 could not be clearly distinguished from Plectranthus ornatus. Schräder then lodged an application at the Court of First Instance, seeking to annul the Board's decision. The Court dismissed this application and Schräder appealed to the Court of Justice.

Schräder put forward two pleas in support of his appeal: (i) procedural defects, (ii) infringement of Community law. The CPVO argued that the appeal was inadmissible on the ground that it dealt only with matters of fact and assessments of evidence and/or that each of the pleas should be rejected and the appeal should therefore be dismissed.

The Court of Justice this morning dismissed Schräder's appeal, ordering him to pay costs. Of the many grounds on which the appeal was based, only two were ruled to be inadmissible but the rest were admitted and then dismissed on their merits. On the issue of inadmissibility the Court had this to say (at para. 73):

"By seeking to demonstrate that the General Court could not reasonably conclude that the facts and circumstances referred to above were not sufficient to refute the conclusion drawn by the Bundessortenamt and confirmed by the Board of Appeal, Mr Schräder, although formally pleading an error of law, is essentially calling into question the factual assessments carried out by the General Court and, in particular, disputing the probative value it attached to those facts".

Challenges to factual assessments are not the province of a legal appeal to the Court of Justice.

Says the IPKat, this ruling doesn't just bring to an end an unpleasant dispute which has dragged on for many years; it also provides the CPVO with the assurance that its judgment was correct as to the manner in which it discharges its functions under the regulatory regime through which it operates. Adds Merpel, dressing challenges to factual assessments up as though they are points of law is one of the great skills of the lawyer. The fact is that lawyers get away with it relatively infrequently -- but probably just about often enough to make them feel it's worth trying.

Plant varieties: a good place to start here

How to tell plants apart: an expert writes here

The IPKat's favourite plant varieties here

Don't dig up technical assessments, warns AG

Beset by an avalanche of new IP developments on a daily basis, the IPKat is always delighted to receive the help and assistance of his friends. He is accordingly very grateful to Bart Kiewiet (President, Community Plant Variety Office) for taking the time and effort to draw his attention to a recent Advocate General's Opinion (of 3 December) which the Kat knew was coming but quite overlooked at the time it was published online. Let Bart take up the narrative here:

"Here you find the opinion of the Advocate General Mazak in Case C-38/09 P concerning Community plant variety rights. The object of this case is a ruling of the Court of First Instance in Schräder v CPVO (Case T-187/06) mentioned on your website in November 2008 [here and here].

I would like to draw your special attention to paragraphs 25 and 26 of the conclusions (see below), in which the AG, in the wake of the Court of First instance, states that judicial review of complex assessments of a technical , scientific economic or social nature must be rather marginal. The relevant case law is, in the opinion of the AG, also applicable to decisions taken in the framework of the Community plant variety protection system.

"25. In that regard, it is apparent from the case-law of the Court that where Community authorities are, when exercising their powers, called upon to make complex assessments of a technical, scientific, economic or social nature, those authorities are to be accorded a certain margin of appreciation. It also follows from the case-law that, when reviewing an administrative decision based on such an appraisal, the Community judicature must not substitute its own assessment for that of the competent authority. Consequently, judicial review in such matters must be limited to verifying that the measure in question is not vitiated by any manifest errors or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion. In particular, as the Court of First Instance pointed out..., the Community judicature must in such cases examine whether the evidence relied on is factually accurate, reliable and consistent and whether that evidence contains all the information which must be taken into account in order to assess the complex situation concerned.

26. That case-law is, in my view, also applicable as regards the grant of Community plant variety rights to the extent, however, that an administrative decision in that field is the result of complex assessments of the kind referred to in the aforementioned case-law, as is without doubt, as the Court of First Instance held ..., the case when it comes to appraising the distinctive character of a plant variety in the light of the criteria laid down in Article 7(1) of Regulation No 2100/94.

I hope that you will draw the attention of your website friends to this opinion".

The IPKat is always pleased to oblige.

Incidentally, the AG advises the Court to dismiss the appeal -- presumably on the basis that once the position of the CPVO and the CFI has become firmly embedded and takes root, it's not a good idea to keep digging it up ...

Plants that are dangerous to cats here

Cats that are dangerous to plants here

Just another Plectranthus, says the CFI

The Court of First Instance (CFI) of the European Communities ruled yesterday in Case T-187/06 Schräder v Community Plant Variety Office (CPVO), an application to annul the decision of the CPVO's Board of Appeal that a "candidate variety" (ie a plant for which an application for registration is made) could not be clearly distinguished from a reference variety.

Schräder applied to the CVPO for a Community plant variety right under Council Regulation 2100/94 on Community plant variety rights. The candidate variety, SUMCOL 01, was originally thought to be a Coleus but it was later agreed that it was a Plectranthus. The CPVO asked the Bundessortenamt (the German Federal Plant Variety Office) to conduct a technical examination, which it did, finding that SUMCOL 01 was not distinct from Plectranthus ornatus (pictured, right) but that the examination had to be retaken. The examiner who was responsible for the technical examination then asked the curator of the Kirstenbosch Botanical Gardens in South Africa to provide cuttings or seeds which he wished to use as reference varieties against which SUMCOL 01 could be examined. The curator replied that the species to which SUMCOL 01 belonged was commonly grown in South Africa and that he knew that species very well. The final report of the Bundessortenamt concluded that SUMCOL 01 was not distinguishable from the reference variety sent from Kirstenbosch.

In the light of this, the CPVO rejected Schräder's application for lack of distinctiveness. Schräder appealed to the CPVO Board of Appeal of the CPVO which, following further investigations and even a visit by one of its members to South Africa, for which the CPVO sought to charge Schräder an advance of 6,000 euro. Schräder refused to pay, arguing that he had not sought the field trip to South Africa and challenging the evidential basis of the Board's decision. The Board of Appeal ultimately dismissed Schräder's appeal against rejection of his application, determining that SUMCOL 01 could not be clearly distinguished from Plectranthus ornatus. Schräder then lodged an application at the Court of First Instance, seeking to annul the Board's decision.

The CFI dismissed Schräder's appeal. In its view

* it was not sufficient for Schräder, in challenging the decision of the Board of Appeal, to call into question the CPVO's assessment, based on the results of the technical examination, that SUMCOL 01 and the reference variety constituted two different varieties. The CPVO's assessment was sufficient in itself to justify the Board of Appeal's decision and the Board of Appeal was entitled to take account of the evidence on which it was established that the reference variety was a matter of common knowledge.

* as to whether the reference variety was a matter of common knowledge, the statements of the curator at Kirstenbosch had been corroborated by the South African authorities and several scientific publications and Schräder's argument to contrary effect was based on an erroneous premiss.

* In so far as a measure of inquiry might be decided on of the Board of Appeal's own motion, without it being required to discuss with the parties in advance as to whether the measure was appropriate or necessary, such a measure could also be deferred on the Board of Appeal's own motion under the same conditions if, in the course of its deliberation, the Board of Appeal made a different assessment. Such decisions were not adopted by surprise, but were merely the exercise by the Board of Appeal of the discretion conferred on it by Regulation 2100/94 to carry out an examination of the facts of its own motion by way of the means of taking evidence.

* the Board of Appeal was not entitled to make implementation of the measure in question subject to the deposit of a sum by Schräder. However, that plea had to be rejected as ineffective in the context of an application for the annulment of the Board's decision once that decision had been adopted, without the measure of inquiry in question having been implemented and without the Board of Appeal drawing any legal consequence from it which was unfavourable to Schräder. The Board's decision had indeed been based on such grounds and on evidence to which Schräder had access and on which he could have expressed his views both orally and in writing.

* the Board of Appeal was entitled to deduce from the evidence at its disposal that SUMCOL 01 could not be clearly distinguished from a reference variety which was a matter of common knowledge at the time that the application had been introduced. It was therefore in no way required to carry out a new technical examination.

The IPKat received a helpful note from Bart Kiewiet, President of the CPVO, alerting him to this decision, for which the Kat says "thanks". The President draws attention to the CFI's view as to the scope of the Court's powers of judicial review, adding:

"The Court is of the opinion that the appraisal of the distinctive character of a plant variety, a major requirement for plant variety protection, is of a scientific and technical complexity such as to justify a limit to the scope of judicial review".

The IPKat is ever conscious of the fine line that separates a review of the manner in which the law is applied and a review of the actual factual basis of a decision, agreeing that the CFI is there to see that the machinery of justice is functionally normally, not to impose its own decision in place of that of another duly constituted tribunal. He also thinks that the CFI has got it right here: do accept the opposite conclusion is to assume that the assessment of the appraisal of the distinctive character of a plant variety is a task better performed by appellate judges than by specialists in the field in question.

As you reap, so shall ye (electronically) sow

Commission Regulation 355/2008 of 21 April 2008 amending Regulation 1239/95 as regards the use of electronic means of communication in proceedings before the Community Plant Variety Office (CPVO) has now been published on the European Commission's Official Journal website.

Right: the big issue now for the CPVO is what to do with their old communications equipment

According to the first three Recitals,

"(1) The rules provided for in Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office should be simplified, in particular by allowing the use of electronic means of communication.

(2) It is appropriate to simplify, on the one hand, the filing of applications, objections or appeals and, on the other, the service of documents by the Community Plant Variety Office (the Office) by permitting the use of electronic means. Moreover, the Office should be given the possibility to issue certificates for Community plant variety rights in electronic form. Publication of information regarding Community plant variety rights should also be possible by electronic means. Finally, electronic storage of files relating to proceedings should be allowed to improve efficiency.

Above, left: ... and the answer is here!

(3) The President of the Office should be empowered to determine all necessary details with respect to the use of electronic means of communication or storage".

Says the IPKat, from this it looks as though the CPVO has been issuing hand-written certificates up till now, using Post-Its to stick information concerning rights on the noticeboard somewhere to the south of the office kettle and tea cupboard ... Merpel wonders, would anyone have challenged the vires of the CPVO if it did this without a Regulation?

Electronic plant information here
Do plants conduct electricity? Your chance to answer here

Valencian mandarins in Luxembourg squeeze

It's not often that the IPKat detects a plant varieties case on his radar, but one appeared as if by magic on the Curia website today: it's Case T‑95/06, Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO), Nador Cott Protection SARL intervening.

What was the story? The case turns on the legal capacity of the Federación (a federation of unions of farming cooperatives in the Spanish provinces of Alicante, Castellón and Valencia), which sought to set aside a decision of the Board of Appeal of the Community Plant Variety Office (CVPO).

Back in 1995, the breeder of the Nadorcott mandarin variety (discreetly referred to as "N") assigned his rights in that variety to an assignee, equally discreetly labelled "M". On the same day, M applied to the CPVO for the grant of a Community plant variety right in that variety. In March 1997 M assigned his rights in the Nadorcott mandarin to a company, Nador Cott (the intervener in these proceedings) and informed the CPVO accordingly. The CPVO finally granted a Community plant variety right in October 2004. In 11 February 2005 the Federación appealed to the CPVO Board of Appeal. It stated that the grant of this plant variety right was of direct and individual concern to it and explained that the plant variety right was invalid for lack of novelty and distinctive character. Nador Cott objected, both arguing that the Federación had no locus standi because, inter alia, it was not directly and individually concerned by the decision granting the right and submitting that the appeal was bound to fail on substantive grounds. The CPVO agreed that the appeal was inadmissible for want of locus standi and that the appeal should be dismissed on its substantive merits.

At the hearing of the Board of Appeal the Federación (i) argued that, pursuant to Article 49 of the implementing regulation, the Board of Appeal should have called upon it, before the hearing, to submit documents establishing that its members were directly and individually concerned by the decision granting the right and (ii) asked for time to return to Spain to assemble and produce complete documentation to that effect, or at least to be allowed to produce at the hearing the incomplete documentation to that effect which its representatives had brought with them. It stated that that documentation included documents empowering it to bring an appeal on behalf of individual mandarin growers and a contract between Geslive (the body responsible for the management and defence in Spain of Nador Cott's rights in the Nadorcott variety) and the Anecoop cooperative (a member of a union of cooperatives affiliated to the Federación) concerning payment by the latter of royalties for cultivation of Nadorcott. The Board of Appeal dismissed the Federación's appeal as inadmissible and rejected its application for leave to produce documents. The Federación then appealed to the Court of First Instance, which dismissed the appeal and awarded costs against the Federación.

The IPKat does not propose to go into the details of the reasoning, which are based on general principles of Community law and do not cast much light on the IP-specific bits of the dispute. He will however observe that, particularly where small businesses are concerned, the formation of bodies such as the Federación makes a lot of sense. This is not a case of global mega-corporations bonding together in order to protect their powerful market position through the increasingly transparent veil of the technical standard-setting cartel; this is a bunch of fruit-growers from a hot, dusty corner of the Iberian peninsula. While the position taken by the CVPO and the CFI may be technically correct as a legal proposition, we may wonder whether the interests of right holders and those who challenge those rights are not better served by the administrative convenience and economies of scale that representative actions can achieve.

Recipes for mandarin marmalade here and here
Mandarin as an aphrodisiac here
how cats miaou in Mandarin here

Small changes to CPVR, few trees destroyed; latest EIPR

Freshly posted this morning on the European Commission's Official Journal website is news of Council Regulation 15/2008 of 20 December 2007 amending Regulation 2100/94 as regards the entitlement to file an application for a Community plant variety right (or CPVR, as we like to call it).

Right: new varieties of catnip bring untold pleasures to IP bloggers

It's a very short Regulation with only one substantive provision. Article 1 reads:

"Regulation (EC) No 2100/94 is hereby amended as follows:

1. Article 12 shall be replaced by the following:

‘Article 12

Entitlement to file an application for a Community plant variety right

An application for a Community plant variety right may be filed by any natural or legal person, or any body ranking as a legal person under the law applicable to that body.

An application may be filed jointly by two or more such
persons.’;

2. in Article 41(2), the words ‘12(1)(b),’ shall be deleted;

3. Article 52(4) shall be replaced by the following:

‘4. Paragraphs 2 and 3 shall also apply in respect of earlier applications that were filed in another State".

The stated reason for these small and subtle changes is that "in the interests of the facilitation of trade it is appropriate to make the CPVR easily accessible. Therefore, the conditions for entitlement to file an application for the CPVR should be simplified and one application system
for all applicants should be introduced".

Please amend your paper copies accordingly.


The January 2008 issue of the monthly European Intellectual Property Review is now out, and the IPKat has been busily perusing it. He notes with alarm that the annual subscription is now a massive £815 (it says even more -- £878 -- on the publisher's website). While no-one expects commercially minded publishers to give away their products for nothing or run at a loss, he can't help wondering if paper-based serial products are now pricing themselves out of the market. Surely there must be a better business model, one which makes quality journals more widely available (which
is what their unpaid contributors want) at an affordable price (which is what their subscribers want), while still providing a mechanism for articles to be properly reviewed, edited and proofed (which is what their readers want), in a market where the content can be profitably sold to customers (which is what the shareholders want).

What's in this issue? Among other things, Dinusha Mendis (University of Central Lancashire) considers the streaming of broadcast events within the context of Second Life, while Jenny Bergquist (V & S Vin & Sprit, makers of Absolut vodka) and Duncan Curley (Innovate Legal) take a fresh look at the impact of the availability of trade mark registrations for shapes upon the fast-moving consumer goods industries.

Above left: the IPKat examines a product container for signs of registrability as a trade mark.