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N. 30, November - December 2006
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 | IP & RTD: Articles
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Community Plant Variety Right
Cristina Giner
Lawyer - GARRIGUES Intellectual Property Agency
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Nowadays, the Plant Variety Right protection remains the great
unknown among the different kinds of protection under Intellectual Property
Law. Traditionally, Patent Law was used to grant protection to new creations
obtained through plant breeding techniques.
Currently, European patent regulations1 expressly exclude the possibility of protecting
plant varieties under this type of Industrial Property law.
In view of the legislative situation previously stated, the need to
create a sui generis system arises in order to protect plant varieties at the
European level.
Since 27th July 1994, the plant varieties protection system has been
governed by Council Regulation (EC) No 2100/942. This Regulation involves an express acknowledgment
of the discipline’s importance as regards plant varieties right
protection.
Given that, in the field of patents, it will be a long time before a
Community patent protection system enters into force, the new Community Plant
Varieties are, today, protectable by an exclusive Industrial Property Right
enforceable in all 25 EU Member countries.
The Community Plant Variety Office (CPVO) with its headquarters in
Angers (France) (www.cpvo.europa.eu) is the
organisation in charge of managing the new Plant varieties registration system.
Although it is an Office with fewer material and human resources, as compared
to other Offices in the field of Industrial Property3, it still provides an excellent
service to the system’s users.
The main function of the CPVO is taking decisions on Community plant
variety protection applications based on the technical and formal examination
of the variety for which protection is sought. Once these examinations have
been successfully completed, the Office issues a registration title that grants
an exclusive monopoly for the exploitation of the referred variety for the
whole territory of the European Union for a period of 25 or 30 years, depending
on the plant species involved.4
As regards the procedure to object to the granting of a Community
plant variety right, and in contrast to the European patent process, which
establishes a “post registral”5 procedure, opponents will be able to file an
objection at any moment between the filing of the application and the decision
for the granting of the title, provided that the objection has to do with
formal and/or technical aspects.
Another important aspect to be considered during the processing of
the applications for granting Community plant varieties is that related to the
variety denominations.
In line with the inherent requirements that must be met by the plant
variety and which are provided by the Community regulation in order to make the
invention protectable, it has to be new, stable, uniform and to possess a
distinctive character and successfully pass the technical examinations; it
shall also meet the requirements for variety denominations.
The Regulation (EC) No 930/20006 sets out the provisions that have to be met by any
proposal for variety denomination. Objections to the granting of a right for a
certain variety denomination may be lodged within three months of the
publication of the proposed variety denomination at the Official Gazette of the
Community Plant Variety Office. Usually these objections are based on the
infringement of registered trade mark rights by third parties, even though the
CPVO has carried out a prior examination.
The Community plant variety protection grants its holder a broad
range of rights for the exclusive exploitation of the referred variety that
covers the variety multiplication, its sale, import or export. In practice, the
holder tends to license these exploitation rights to third parties in exchange
for payment of royalties. This is usually the case because of the need to adapt
the Community registration to fit the national regulations of Member States in
the field of business registrations.
Despite advantages provided by the Community protection system, its
coexistence with national marketing systems on plant variety rights remains
necessary.
1.
Please see the Convention on the Grant of European Patents of 5th
October 1973 (Art. 53)(«)
2.
Council Regulation (EC) No. 2100/94, 27th July 1994, on Community
Plant Variety Rights («)
3.
Such as the European Patent Office (EPO) or the Office of
Harmonization for the Internal Market (OHIM) in the field of Community
Trademarks and Designs registration. («)
4.
Please see Art. 19 in Council Regulation (EC) No. 2100/94, 27th
July 1994, “The term of the Community plant variety right shall run
until the end of the 25th calendar year or, in the case of varieties of vine
and tree species, until the end of the 30th calendar year, following the year
of grant” («)
5.
Please see the Convention on the Grant of European Patents of 5th
October 1973 (Art. 99)(«)
6.
Commission Regulation (EC) No 930/2000 of 4th May 2000
establishing rules as to the suitability of the denominations of varieties of
agricultural plant species and vegetable species. («)
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