Cripps Pink a Plant Variety Case

Cripps Pink is a sweet, crisp, and crunchy apple cultivar, sold under the more familiar trade mark “Pink Lady”. It belongs to the Malus domestica Borkh species and was originally bred by Mr. John Cripps (the breeder), a researcher in the Plant Industries division of the Department of Agriculture and Food Western Australia by crossing the Australian apple Lady Williams with a Golden Delicious.

On 29 August 1995, an APPLICATION before the Community Plant Variety Office (CPVO) was filed for a community plant variety right for the apple variety “Cripps Pink”.

Although its granting process hit a few bumps, finally on 15 January 1997 the CPVO granted the application. However, the Office initially expressed some concerns regarding its novelty due to the fact that the Cripps Pink variety was first marketed within the European Union in 1994 in France and in 1988 outside the European Union, in Australia.

In response, the applicants considered the date 1998 as the first date on which the apple trees were planted for experimental purposes, and the first market date for calculating the novelty, as required by Article 10 of the Basic Regulation, was July 1992 in the United Kingdom.

But what is a community plant variety right? And the Community Plant Variety Office? What are the requirements?

A PLANT VARIETY RIGHT (“PVR”) is an intellectual property right that grants the titleholder of a new variety of plants exclusive control in respect of the variety constituents and harvested material of a new variety for 25 years and in the case of trees, vines, and potatoes 30 years.

In order to apply for this right, applicants can either apply for Plant Variety Right (PVR) protection at the national or European Union level which is called Community Plant Variety Right (“CPVR”). By a single application for a CPVR, an intellectual property right is granted with unitary effect throughout the whole territory of the EU.

Nevertheless, to be granted such a right, the variety must be compliant with the legal requirements for protection provided by Council Regulation 2100/94 (the “Basic Regulation”). A protectable plant variety must be distinct, uniform, and stable (DUS requirements), as well as new. Furthermore, it should be identified with a suitable denomination and the registration fees must be paid.

The Community Plant Variety Office is the European Union agency responsible for managing the CPVR system and it is located in Angers (France) since 1997.

As stated, novelty is one of the requirements for the protection of a CPVR and on 26th June 2014, Pink Lady America LLC applied for nullity of the Cripps Pink Community plant variety right at the CPVO, arguing that the Community plant variety right at issue did not fulfill the novelty condition (Article 10 of the Basic Regulation).

The appellant claimed that, as the variety had been put on the market in Australia before the applicable grace period established in Article 116 of the Basic Regulation, the information regarding the first date of commercialisation submitted in the application to the CPVO was incorrect.

On 19 September 2016, the CPVO dismissed the nullity request stating that it must declare a CPVR null and void if it is established that the conditions laid down in Article 10 of the Basic Regulation were not met on the date of application. Moreover, only where there are serious doubts that these conditions were met as of the date of application can a re-examination of the protected variety right by way of nullity proceedings be justified.

The CPVO also observed that a third party seeking the annulment of a plant variety right must adduce evidence and facts of sufficient substance to raise serious doubts as to the legality of the grant of the right.

On 18 November 2016, the applicant appealed before the Board of Appeal (BoA) of the CPVO, claiming that the CPVO had erred in its assessment of the facts and the evidence and requested the BoA to declare the Community plant variety right at issue null and void for lack of novelty pursuant to Article 10(1) of the Basic Regulation.

The Board of Appeal confirmed the CPVO’s decision and dismissed the applicant’s appeal as unfounded. It held that as regards the sale or disposal of the plant material within the EU, the nullity applicant had not submitted the required evidence.

As regards the selling or using of the variety outside the EU, the BoA found that the evidence submitted by the appellant did not constitute substantive proof that raised serious doubts as to the validity of the CPVR at issue as it did not prove that material of the variety was sold, or otherwise disposed of, by or with the consent of the breeder for the purposes of exploiting the variety.

In a further attempt, the applicant appealed to the General Court (Third Chamber) on 23 February 2018, stating, once again, that the CPVR granted to the Cripps Pink variety, lacked novelty.

The Court stated that the novelty requirement was fulfilled and that “a disposal for the purposes of testing of the variety which does not amount to sale or disposal to third parties for purposes of exploitation of the variety does not negate novelty for the purposes of Article 10 of the Basic Regulation”.

Furthermore, the Court held that “the concept of ‘exploitation’ of the variety within the meaning of Article 10(1) of the Basic Regulation relates to exploitation for profit, but this concept excludes commercial trials aimed at assessing varieties under commercial conditions across a range of soil types and different farming systems to determine their value to customers”.

Thus, the action was dismissed, and the applicant was ordered to pay the costs hence maintaining the granted CPVR to the Cripps Pink variety.

The case furnishes noteworthy lessons on Community plant variety rights in construing the novelty condition, varieties planted for experimental purposes are immaterial while the grace periods provided under Articles 10 and 116 of the Basic Regulation are applicable.

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