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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. In essence, the issue of this case relates to the scope of discretion of the CPVO’s President to include an additional characteristic in DUS examination, if it turns out in the course of the examination of a candidate variety that the same is clearly distinct from known varieties in a characteristic and that the characteristic is not mentioned in the list of characteristics in the technical protocol applicable for the technical examination of the candidate variety. (more…)

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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IP-Plant

Cancellation of a Community plant variety right

 

Gert Würtenberger

 

Although the grant of a Community plant variety right is based on an ex-officio examination, reasons may be given why the CPVO should not have granted protection. For this reason, Article 20 of Regulation (EC) No. 2100/94 (CPVR) provides rules for nullity of a Community plant variety right. Moreover, the right granted should only continue to exist if the variety fulfills after grant of protection the conditions “Uniformity” (Article 8 CPVR) and “Stability” (Article 9 CPVR). If the CPVR no longer complies with these requirements, the CPVO must cancel the right with effect in future according to Article 21 (para. CPVR).

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IP-Plant

Commission implementing Regulation (EU) 2016/1448 of 1 September 2016

 

Amendment of Council Regulation (EC) No. 874/2009 establishing Implementing Rules for the application of Council Regulation (EC) 2100/94 as regards proceedings before the Community Plant Variety Office

 

Gert Würtenberger

 

On 2 September 2016 certain amendments of the Rule for Procedure before the Community Plant Variety Office entered into force. The most significant changes are briefly summarized below.

 

Besides amendments which should increase efficient administration and clarity of the proceedings before the Office, one of the amendments refers to the language regime. It is now provided that the successor in title of a Community plant variety right may choose another official language of the European Union than the one that has been chosen by the applicant. Moreover, it is now provided that the Office or the Board of Appeal, with the agreement of all parties to the proceedings, should be able to use only one of the official languages of the European Union during those proceedings. So far, the Office or the Board of Appeal was obliged to translate all documents of the proceedings into the language of further parties that are involved therein besides the applicant.

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The object of protection of plant variety rights

 

Gert Würtenberger

 

What is to be protected by an industrial or intellectual property right largely depends on what the intention is in granting an exclusive right in a certain object. As regards inventions – in the context of this contribution this term relates to technical inventions as well as to improvements in plant breeding – the purpose is to foster progress by granting, for a limited period of time, the right to the creator to exclude others from using his achievements in order to allow the exploitation of the invention to the best possible extent in order not only to leverage the investments made in the invention but to induce further research.

 

Simultaneously, third parties should be induced to continue their efforts to find, or to invent, something new in light of the information obtained from the latest technical advances due to the publication of the invention. Finally, moreover, third parties must have the possibility to inform themselves on existing property rights and their scope by means of appropriate sources of information.

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