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.
Due to the nature of plant material the expression of the characteristics is subject to factors such as the quality of the cuttings, the application of fungicides or insecticides, the soil condition, the use of fertilizers, the watering of the plants, the temperature or the light conditions, while the characteristics are observed. For this reason the variety description is describing the characteristics as developed in the year of observance. As characteristics are mainly based on a comparison with those of varieties of common knowledge, in the sense of Article 7 CPVR and thus are always determined in relation to the characteristics of those other varieties, the scope of relation may change over the time, in particular in light of an increasing number of further varieties. The increase of numbers of varieties of a certain species as well as the fact that within the technical examination, new characteristics are observed which allow to examine whether the DUS requirements are fulfilled or the breeding process, leading to an increasing number of further varieties, requires an amendment of the list of characteristics in technical protocols and the relations among the characteristics determining distinctions.
Article 87 para 4 of the CPVR allows the Office of its own motion and upon consultation with the holder to adapt the official variety description in respect of the number and type of characteristics or of the specified expressions of those characteristics, when necessary, in the light of the current principles governing the description of varieties of the taxon concerned in order to render the description of the variety comparable with a description of other varieties of the taxon concerned.
Under which conditions the Office may exercise its discretion provided in Article 87 para 4 and to which extent such discretion is given, is now defined more precisely by the Board of Appeal in its decision of 2 September 2016 in appeal case A007/2007-RENV (Lemon Symphony – here). As the variety description of Lemon Symphony used as a reference variety was based on a national technical guideline at a time no guideline passed by the administrative council of the CPVO existed and moreover certain amendments to the UPOV guidelines on the basis of which the national guideline was based upon occurred, the description of Lemon Symphony had to be “translated” under the observance of the guidelines applicable at the time the CPVO had to decide whether the candidate variety met the DUS criteria. As, in light of the amended version of the description, the candidate variety was not sufficiently distinctive to the reference variety Lemon Symphony, grant of protection was denied.
The Applicant of the candidate variety appealed the decision of the CPVO to amend the description of the referenced variety. The decision deals first of all with the admissibility of an appeal of another party when the holder of the rights with regard to which the variety description has been amended (paras 29 to 47 of the decision) and discusses in paras 48 through 66 whether under the given circumstances of the facts of the case the CPVO correctly exercised the broad discretion conferred on it by Article 87 (4) CPVR.