Proceedings before the Office and Procedural Rules

This chapter discusses the Basic Regulation and the Proceedings Regulation that contain a diversity of provisions on procedures, which relate to application procedures, objection procedures, or appeal procedures. It describes the Community plant variety rights system that opens the possibility for breeders to apply for Community plant variety rights. It also explains the specific procedure of framework of the Community system, which complies with fundamental principles on legitimate expectations and the right to a fair hearing. This chapter deals with the ancillary procedures relating to variety denominations, the objection procedure, and the procedure on access to documents. It highlights specific procedures to be followed concerning the application for a compulsory licence and requests for nullity and cancellation.

The Community Plant Variety Office

This chapter is about the Community Plant Variety Office (CPVO), which was created by Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights or the Basic Regulation. It explains the purpose of the implementation and application of the Basic Regulation. It also describes CPVO as an agency of the European Union (EU), which is a body governed by European public law that is distinct from the EU institutions. This chapter describes the resources that led the European Parliament, the EU Council, and the European Commission to launch an inter-institutional dialogue on decentralized agencies in 2009. It points out, as stated in the Basic Regulation, that the decisions of the CPVO will be taken by a committee of three members of its staff.

Substantive Law

This chapter looks at the system laid down in the International Union for the Protection of New Varieties of Plants (UPOV) Convention, which implies that only the breeder of a variety has a claim on a plant breeders' right. It analyses the UPOV definition that qualifies the employer of the person who bred, or discovered and further developed, the variety of plants as the breeder. It also elaborates the responsibility of the Community Plant Variety Office (CPVO) in examining the entitlement to a Community plant variety right. This chapter reviews the technical questionnaire that requires the applicant to indicate 'breeding scheme, parents, other relevant information' for the completion of the form to confirm the credibility of plant breeders. It talks about the practice of the CPVO, which shows that the notion of breeding encompasses all techniques that are aimed at the creation of a new variety.

The Enforcement of Community Plant Variety Rights

This chapter looks at Part VI of the Basic Regulation that deals with civil law claims against infringements of Community plant variety rights and jurisdiction in Articles 94 to 107. It reviews Article 94 of the Basic Regulation that determines the infringing activities and the conditions under which infringement and compensation claims are given. It also analyses Article 97 that outlines the applicable law for claims regarding any gains the infringer may have made at the expense of the owner of the infringed rights. This chapter describes Community plant variety rights that have uniform effect within the territory of the Community, which can be partially guaranteed by the Basic Regulation. It explains how the application and registration proceedings result in a right that is the same throughout the EU.

Introduction

This chapter introduces plant breeding, which is intended to alter plants genetically in such a manner that they adapt more appropriately to the needs of human beings. It describes the objectives of plant breeding which are tightly interwoven with the general goals of agricultural plant production. It also recounts the first work on plant breeding and genetics that was conducted by an Augustinian monk named Gregor Johann Mendel in the mid-1890s. This chapter reviews how the unsuitability of patent protection and the lack of protection of plant breeding in many countries increased the demand for protection of plant varieties on an international basis. It mentions the preamble of the International Union for the Protection of New Varieties of Plants (UPOV) Convention, which states that the protection of new varieties of plants is important for the development of agriculture and safeguarding the interests of breeders.

Rights Granted

This chapter deals with the scope of protection once the material and formal conditions for the granting of Community plant variety rights have been granted. It discusses the scope of rights, the limitation of rights, and the duration and termination of rights. It also highlights the acts to which only the holder of the Community plant variety right is entitled, and the products obtained directly from harvested material. This chapter highlights essentially derived varieties and explains the use of variety denominations, as the holder of the plant variety right is entitled to take action in court against persons who omit the correct usage of such denominations. It talks about the Community plant variety rights that are granted after accession of new Member States to the European Union, which are applied throughout the territories of both the new and old Member States.

Remedies against Decisions of the Office and Further Proceedings

This chapter looks at decisions relating to the application and the granting procedure that may be appealed to the Board of Appeal. It analyses certain decisions that may be appealed directly to the Court of Justice of the European Union (CJEU) and the Ombudsman, who also plays an important part in supervising the administration of the institutions and agencies. It also mentions the Commission that controls Administrative Council acts on the budget of the Community Plant Variety Office (CPVO). This chapter discusses the scope of the competence of the Board of Appeal that is set out in Article 67, such as the nullification or cancellation of a Community plant variety right. It analyses the appeal against a decision that does not terminate proceedings with regard to one of the parties that are made in conjunction with an appeal against the final decision.