ip-plant

Judgment of the General Court of 13 July 2017 – Case T-767/14

Gert Würtenberger

 

One of the prerequisites for obtaining a Union plant variety right for a breeding result is that the variety is new. A variety will be deemed to be new if, at the date of application, variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others by or with the consent of the breeder for purposes of exploitation of the variety, either earlier than one year before the application date within the territory of the Community or earlier than four years or, in the case of trees or vines, earlier than six years before the application date outside the territory of the Community (Article 10 of Regulation 2100/94 on Community Plant Variety Rights -the Regulation.

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EPO – News rules relating to patentability of essentially biological processes

 

Gert Würtenberger

 

After the European Patent Office (EPO) decided in December 2016 to stay the proceedings in certain biotechnology cases as a reaction to the notice of the European Commission related to certain articles in the Directive (98/44/EC)  on the legal  protection of biotechnical inventions the Administrative Council of the EPO decided on 29 June 2017 to amend the Rules 27 and 28 EPC in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process based on a proposal made by the EPO [here] . The amended rules now read as follows (amendments emphasized):

 

“Rule 27

Patentable biotechnological inventions

Biotechnological inventions shall also be patentable if they concern:

(a) biological material which is isolated from its natural environment or produced by means of a technical process even if it previously occurred in nature;

(b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;

(c) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.”

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ip-plant.eu

Decision in case C-625/15 P “Gala Schnitzer”

Gert Würtenberger

 

On 8 June 2017 the Court of Justice of the European Union (CJEU) published its decision in case C-625/15 P “Gala Schnitzer”(here)  on the competence of the President of the Community Plant Variety Office (CPVO). The question was whether the President has the power, following the technical examination of a candidate variety and before the Technical Division takes a decision to grant protection for the candidate variety, to add an additional characteristic that had been observed in the course of the technical examination, although such an additional characteristic is not (yet) mentioned in the relevant technical protocol to be observed in the assessment of distinctness of the candidate variety.

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ip-plant - Elcio, thanks!

First Contours of a Damage Claim in Accordance with the Law on Community Plant Variety Rights

Gert Würtenberger

 

By means of the Directive 2004/48/EC on the Enforcement of Intellectual Property Rights (hereinafter abbreviated to Enforcement Directive) the European legislator – in order to guarantee a high and homogeneous level of protection within the European Union – has provided a framework for the national legislators of the Member States relating to substantive and procedural sanctions and the implementation of procedural instruments for the enforcement of intellectual property rights. The core of the Directive, besides Articles 6 to 9 concerning the enforcement and protection of a variety of claims deriving from property rights, are Articles 10 to 15 that are devoted to the legal consequences resulting from an ascertained infringement of property rights. Besides the rights to claim destruction, recall and removal, damage claims according to Article 13 are of particular significance.

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Calculation of damages

Gert Würtenberger

 

On 25 January 2017 the European Court of Justice (Case C‑367/15, see hererendered a decision concerning the calculation of damages in a copyright infringement case which, however, also has to be regarded as a leading case with regard to any damage claim for infringement of intellectual industrial property rights, including plant variety rights.

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IP-Plant

Opinion of Advocate General Campos Sánchez-Bordona in Case C-625/15 P

 

Gert Würtenberger

 

On 18 January 2017 the Court of Justice of the European Union (CJEU) published an opinion of Advocate General Campos Sánchez-Bordona in Case C-625/15 P Schniga GmbH v. Community Plant Variety Office (CPVO) with regard to an apple variety which had been applied for Union protection more than 17 years ago.

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IP-Plant Anpassung einer Sortenbeschreibung

Amendment of a Community plant variety description

 

Gert Würtenberger

 

Whether a candidate variety meets the DUS requirements is examined in a technical examination according to Articles 55 and 56 of Council Regulation (EC) No. 2190/94 on Community Plant Variety Rights (CPVR).

 

If at the end of the technical examination the Office is of the opinion that the findings of the examination are sufficient to decide on the application and the DUS requirements are met, it shall grant the Community plant variety right. The decision shall include an official description of the variety (Article 62 CPVR). The plant variety description is part of the granting decision and thus represents an important element describing the object of protection.

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