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Overview of the EU PVP System and Appeals Process at CPVO

This article provides an overview of the EU Plant Variety Protection (PVP) System and the appeal process at the Community Plant Variety Office (CPVO). It covers the criteria for protection, the composition and function of the Board of Appeal, the appeal procedure, examples of past cases, and statistics.

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Overview of the EU PVP System and Appeals Process at CPVO

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  1. The Board of Appeal of the CPVOMartin EKVAD, President of the CPVOStrasbourg, 29 January 2016 @CPVOTweets

  2. Outline • The context in which the Board functions • The EU PVP System • How does the Boardfunction ? • Criteria for appealing • Appealprocedure • The decisionprocess • Fees • Example of cases • Final remarks and Statistics

  3. 1. The EU PVP System • Operational since 1995 • EU PVR is valid in the 28 member states • National PVR systems in 24 member states • 1995-2015; around 54,000 applications • Annually ~3500 applications • 2014: 3600 • 2015: 3200 Plant Variety Rights System

  4. The EU PVP System • 55 % Ornamentals • 25 % Agricultural • 15% Vegetable • 5% Fruit Plant Variety Rights System

  5. Criteria for protection • Distinct • Uniform • Stable • Varietydenomination • New Plant Variety Rights System

  6. The CPVO • The CPVO is a self financed EU agency –funded by fees charged for services rendered. • Staff of 45 people • representing 12 nationalities. • We work in • Theory with 24 languages • In practice approximately 5 languages. Plant Variety Rights System

  7. ECJ ADMINISTRATIVE COUNCIL General Court BOARD OF APPEAL CPVO EXAMINATIONS OFFICES IN THE MEMBER STATES

  8. 2. How does the Board function • Composition • The Chair and his/heralternate are appointed by the Council for 5 years. • The Members are appointed by the Administrative Council for 5 years(a list of 19 persons) • Technical experts • Legal experts • A sittingBoAis made up of the Chairman & 2 members • The Chair selects the 2 members for each case

  9. The Appeal Procedure • Legislative basis : Art 67 of the Basic Regulation (EC) 2100/94 (BR) • Art 73 BR : Actions maybebroughtbefore the Court of Justice againstdecisions of the Board of Appeals on appeals

  10. Parties to proceedings (Art 68BR) • Entitlement to appeal and parties to appeal proceedings • Any natural or legal person may appeal • addressed to that person, or • against a decision which, addressed to another person, is of direct and individual concern to the person • The Office shall, be party to the appeal proceedings.

  11. Decisions subject to appeals • An appeal has suspensoryeffectof the contesteddecisionunlessotherwisedecidedby the CPVO

  12. How to lodge an appeal ?

  13. Decision process of the Board

  14. Fees The appeal fee may be reimbursed in certain circumstances

  15. 3. Examples of cases • Gala Schnitzer • Appeal on two grounds • Procedure – the CPVO hadallowed a second samplesince the first samplewas virus infected • Distinctness; the candidate varietywas not distinct • BoA : CPVO was not entitled to allow a second sample; did not rule on distinctness • GC: Yes, CPVO wasentitled to allow a second sample • CJEU: agreed to the GC • Whatshould the BoA do about the Distinctnessground ?

  16. Examples of cases • BoAre-opened the case • Decidedthat the varietywas not distinct • Presidenthadaccepted an additionalcharacteristictoolate • GC: Agreed with the BoA • CJEU • Pending

  17. Examples of cases • Case A011/2008 Santa Fe • CPVO refused; variety not uniform • Appellant: • the growing conditions were not good at the Examination Office • the Examination Office mixed up plants • BoA: • No evidence of problems with the growing conditions

  18. Examples of cases • Case A004/2004 Ginpent • Third party: • asked the CPVO to amend a Variety Denomination for a protected variety • CPVO • Refused • BoA: • Confirmed the decision of CPVO

  19. Examples of cases • Case T-187/06 Schräder v CPVO, Sumcol • The appraisals of scientific and technicalcomplex questions justify a limited scope of judicialreview by the Court • Court shouldonlyexamine thatwhen the authoritywasfindingfacts and applied the lawthereis no manifesterrors or missuse of powers • The Office/BoAenjoys a widediscretion • This means in practice that the BoAis for complextechnicalexaminations in principle last instance

  20. Examples of cases • Joined Cases T-133/08, T-134/08 and T-177/08 • BoAconcludedthat the appellanthad been dulysummoned and held the oral hearingwithout the appellant • GC: Breach of the principle of the right of beingheard • BoA have to redo the cases

  21. 4. BOARD OF APPEAL: Statistics(01/01/1997 – 27/01/16)

  22. Statistics

  23. Number of appeals by sector:

  24. Legal basis appeals lodged

  25. 16 Decisions were Appealed to the General Court (first instance) • T-95/06 ‘Nadorcott’ • T-187/06 ‘Sumcol 01’ • T-187/06 DEP I ‘Sumcol’ • T-133/08 ‘LemonSymphony’ • T-134/08 ‘LemonSymphony’ • T-135/08 ‘Gala Schnitzer’ • T-177/08 ‘Sumost 01’ • T-242/09 ‘LemonSymphony’ • T-367/11 ‘SouthernSplendour’ • T-91/14 ‘Gala Schnitzer’ • T-92/14 ‘Gala Schnitzer’ • T-767/14 ‘Oksana’ • T-140/15 ‘M02205’ • T-425/15 ‘Seimora’ • T-426/15 ‘Seimora’ • T-428/15 ‘Sumost’

  26. 5 Decisions appealed to the Court of Justice (second instance) • C-38/09 ‘Sumcol01’ • C-38/09P-DEP ‘Sumcol 01’ • C-534/10 ‘Gala Schnitzer’ • C-546/12P ‘LemonSymphony’ / ‘Sumost’ • C-625/15P ‘Gala Schnitzer’

  27. Final remarks • Limited number of appeals • Oral hearings in most cases • Rules of Procedure for appealscanbeimproved • Technical / legal field - with quite some discretion to the CPVO • BoA gives important guidance to the CPVO and parties • Important body – “last instance” for techicalmatters • All in all – the appealproceedingsworkverywell

  28. Further studies • Booklet of CPVO case law online • – paper format can be sent on request • Case law database on the CPVO website • BoA cases • Appeals to CG and CJEU • Certain cases from the European Patent Office • PVR Infringement cases from national courts • www.cpvo.europa.eu

  29. THANK YOU! @CPVOTweets

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