EUROPEAN COMMUNITY PLANT VARIETY PROTECTION

Transcription

1 EUROPEAN COMMUNITY PLANT VARIETY PROTECTION by GERT WURTENBERGER PAUL VAN DER KOOIJ BART KIEWIET MARTIN EKVAD OXFORD UNIVERSITY PRESS

2 CONTENTS List ofabbreviations xix Table of Cases xxi Table of International Treaties and Agreements xxiv Table of European Treaties and Legislation xxv Table of National Legislation xxxiv 1. Introduction A. History of a Community-wide Plant Variety Protection System From National Rights to the EC Regulation on Plant Variety Protection 1.01 B. Structure of the Community Plant Variety Protection System (1) The Community Plant Variety Rights System 1.07 (2) Accession of new Member States 1.11 (3) Coexistence with national systems 1.13 C. Relation of Plant Variety Protection to Seed Law and Seed Distribution Systems 1.15 D. Relation between Plant Variety Rights and Patents 1.17 E. Relation to International Treaties (1) TRIPS 1.24 (2) Paris Convention 1.27 (3) UPOV Convention 1.29 (4) Convention on Biological Diversity (CBD) The Community Plant Variety Office A. General 2.01 B. Community Agency 2.02 C. Decisions 2.03 D. The Administrative Council 2.04 E. The President 2.09 F. The Board of Appeal 2.11 G. Finances 2.15 XI

3 3. Substantive Law Contents A. Persons Entitled (1) Entitlement to Community plant variety rights, the breeder 3.01 (2) Entitlement to file an application 3.10 B. Material Conditions for the Grant of Community Plant Variety Rights (1) Introduction 3.15 (2) Object of Community plant variety rights 3.16 (3) Protectable varieties (Article 6) 3.20 (4) DUS requirements general 3.22 (5) Distinctness 3.27 (6) Uniformity 3.43 Uniformity assessment on the basis of off-types 3.47 Uniformity assessment on the basis of standard deviations 3.48 Uniformity assessment for varieties with segregating characteristics 3.49 (7) Stability 3.54 (8) Novelty 3.60 (9) Denomination (Article 6) 3.75 Article 63(3)(a). Use precluded by prior right of a third party 3.79 Article 63 (3) (b). Difficulties for users with regard to recognition or reproduction 3.82 Article 63 (3) (c). Identical to/may be confused with, a variety denomination of another variety of the same/a closely related, species 3.84 Article 63 (3) (d). Identical to/may be confused with, other designations 3.86 Article 63(3)(e). Liable to give offence in one of the Member States or is contrary to public policy 3.87 Article 63 (3) (f). Liable to mislead/cause confusion, concerning the characteristics, value, or identity of the variety or the identity of the breeder, or any other party to proceedings Proceedings before the Office and Procedural Rules I. Procedures A. Introduction 4.02 B. Formal Examination 4.03 (1) Where to file an application 4.06 (2) Receipt of the application 4.08 (3) The requirements for a valid application 4.09 A request for the grant of a Community plant variety right, Article 50(a) 4.10 Xll

4 Identification of the botanical taxon, Article 50(b) 4.11 Information identifying the applicant or, where appropriate, the joint applicants, Article 50(c) 4.12 Information identifying the breeder and the person entitled to apply 4.14 A provisional designation of the variety, Article 50(e) 4.15 A technical description of the variety, Article 50(f) 4.16 The geographic origin of the variety, Article 50(g) 4.18 The credentials of any procedural representative, Article 50(h) 4.19 Details of any previous commercialization of the variety, Article 50(i) 4.20 Details of any other application made in respect of the variety, Article 50(j) 4.21 Further information pursuant to Article 19(3) and (4) of the Proceedings Regulation 4.23 (4) Payment of the application fee 4.25 (5) Date of application 4.27 Introduction 4.27 A valid application 4.29 Information missing no application date 4.30 Information missing application date is given 4.31 Application via a national agency 4.33 (6) The right of priority 4.34 C. Substantive Examination 4.40 (1) Article 5 a variety 4.42 (2) Article 10 novelty 4.43 (3) Article 12 entitlement to apply 4.44 (4) Article 82 procedural representative 4.45 (5) Article 63 variety denominations 4.46 (6) Article 11 entitlement 4.47 D. Technical Examination (1) Organization of the DUS test 4.48 (2) Payment of the examination fee 4.54 (3) Deadlines for submitting material to be tested 4.55 (4) Applicable technical protocols 4.56 (5) Final report 4.58 E. Variety Denominations 4.59 (1) Proposal for a variety denomination 4.60 (2) Examination of a proposed variety denomination 4.61 (3) Decision on a proposed variety denomination 4.62 (4) Publication 4.63 xin

5 (5) Priority (6) No provisional protection of variety denominations (7) Objections and appeals (8) Amendment of the variety denomination F. Objection Procedure (1) Who can object? (2) Fotmal conditions (3) Access to the file (4) Grounds (5) Deadline to file an objection (6) Decisions on objections (7) Rejection of objections on grounds of inadmissibility (8) Priority if the objection is successful (9) Appeal against a decision on an objection G. Decisions H. The Register and Public Inspection (1) Registers (2) Rules on public inspection in Article 88 (3) The relationship between public inspection (Article 88) and public access to documents (Article 33 (a)) (4) Main features of the rules on access to documents undet Article 33(a) and Regulation 1049/ II. Procedural Rules A. Parties to Proceedings B. Languages C. Statement of Grounds D. Examination of Facts by the Office on its own Motion E. Oral Proceedings F. Taking of Evidence (1) General provisions (2) Costs (3) Minutes G. Service and Time Limits H. Restitutio in Integrum I. General Principles J. Procedural Representative K. Fees XIV

6 L. Apportionment of Costs and Enforcement of Decisions which determine the Amount of Costs (1) Apportionment (2) Enforcement of decisions which determine the amount of costs M. Administrative and Legal Cooperation Remedies against Decisions of the Office and Further Proceedings A. Introduction 5.01 B. Appeals to the Board of Appeal (1) Competence 5.02 (2) Who can appeal? 5.04 (3) Notice of appeal formal requirements and time limits 5.08 (4) Appeal fees 5.11 (5) Interlocutory revision 5.14 (6) Suspensory effect of the appeal 5.17 (7) Examination of an appeal 5.23 Admissibility 5.25 Examination of whether the appeal is well-founded 5.28 Oral proceedings 5.29 (8) Procedural aspects 5.32 (9) Decisions 5.33 (10) Entry into force of a decision taken by the Board of Appeal 5.37 (11) Costs 5.38 C. Actions before the European Court of Justice PVR Proceedings 5.40 (1) Competence 5.42 (2) Who can appeal? 5.45 (3) Time limit 5.46 (4) Decision of the Court of Justice 5.47 (5) Suspensory effect 5.48 D. Actions before the European Court of Justice Miscellaneous (1) Access to documents 5.49 (2) Jurisdiction in contractual and non-contractual liability 5.51 (3) Staff cases 5.52 (4) Data protection 5.53 E. Control by the Commission of the Legality of Acts of the President and the Administrative Council of the Office Rights Granted A. Scope of Rights (1) Introduction 6.01 (2) Acts to which only the holder is entitled 6.04 XV

7 (3) Plant material involved Propagating material 6.11 Harvested material 6.13 (4) Products obtained directly from harvested material 6.18 (5) Essentially derived varieties 6.20 (6) Use of variety denominations 6.34 B. Limitation of Rights (1) Introduction 6.43 (2) Fanner's privilege 6.51 (3) Acts referred to in Article 15 Acts done privately and for non-commercial purposes 6.80 Acts done for experimental purposes 6.84 Acts done for the purpose of breeding, or discovering and developing other varieties 6.87 Acts referred to in Article 13(2) to (4) in respect of such other vaneties o.eo Acts whose prohibition would violate the provisions laid down in Articles 13(8), 14, or (4) Exhaustion Introduction 6.92 Exhaustion and the rules on free movement of goods 6.96 Exhaustion and competition law (5) Limitation of the use of variety denominations (6) Contractual exploitation rights (7) Compulsory exploitation rights (8) Community plant variety rights as objects of property C. Duration and Termination of Rights (1) Introduction (2) Term of protection (3) Nullity (4) Cancellation The Enforcement of Community Plant Variety Rights A. Introduction 7.01 B. Plant Variety Rights Infringement 7.05 (1) The infringed right 7.06 Infringement of the material rights 7.07 Infringement of the plant variety denomination 7.11 (2) Infringing activities 7.12 C. Consequences of Infringement (1) Injunction claim 7.17 Risk of repetition 7.20 XVi

8 Risk of a first infringing act Discontinuance of infringing activities (2) Damages claim Objectively unlawful plant variety infringement Liable conduct Claims according to Article 94 paragraph 2 (3) Other claims vis-a-vis the infringer (4) Prescription D. Retroactive Claim for Remuneration Pursuant to Article 95 of the Basic Regulation E. Claiming Entitlement to Community Plant Variety Rights F. Obtaining Identification of a Variety G. Further Claims According to National Laws H. Enforcement Procedure (1) Introduction (2) Jurisdiction Preliminary note The term 'plant variety right dispute' Provision of jurisdiction as laid down in Article 101 of the Basic Regulation Local jurisdiction Exceptions (3) Entitlement Entitlement to bring an action Legal succession Substantiation of the entitlement to bring an action Capacity to be made a defendant (4) Motions Question on evidence Substantiation of an action on the merits Onus of proof Onus of production of proof in the case of essentially derived varieties (5) Pre-action procedure Cease and desist letters Interim injunctions France Germany Italy The Netherlands United Kingdom (6) Measures to secure evidence France XVI1

9 Germany Right of inspection Preservation of evidence Italy Descrizione Sequestro The Netherlands United Kingdom Search order (Anton Piller order) Discovery of names (7) Criminal proceedings France Germany Italy The Netherlands United Kingdom I. Border Measures J. Directive on the Enforcement of Intellectual Property Rights Appendices Appendix 1 Council Regulation (EC) No 2100/ Appendix 2 Commission Regulation (EC) No 1239/ Appendix 3 Commission Regulation (EC) No 1238/ Index 305 XVlll