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.
In the application papers the Community Plant Variety Office (CPVO) requests the breeder to indicate the date of the first disposal of material of the candidate variety for commercial purposes. The Office does not, however, examine whether the information provided by the applicant is true.
According to Article 53 of the Regulation, the CPVO must perform a formal examination of an application and, if the formal requirements are fulfilled, enter into a substantive examination according to Article 54 of the Regulation. Afterwards, the technical examination according to Article 55 of the Regulation will be performed.
During the course of the substantive examination the Office shall examine whether the variety is new pursuant to Article 10 of the Regulation. The examination duties of the CPVO have to be seen in light of Article 76 of the Regulation which states that the examination of the facts must be made by the Office of its own motion.
In the case decided several facts had been forwarded by an Intervener, according to which material of the candidate variety was disposed of outside the novelty grace period, as defined in Article 10 of the Regulation. For this reason the Intervener disputed that the candidate variety was not new. The Applicant argued that the commercial activities which occurred in relation to plant material of the candidate variety outside the grace period were performed with regard to material which had been submitted by the predecessor of the applicant on condition that it would only be used for research purposes. No consent was given to use the material for commercial activities. Thus, in the opinion of the Applicant the availability of plant material of the candidate variety did not destroy novelty as Article 10 of the Regulation requires that the novelty-destroying activities have been performed either by the breeder or its predecessor or, with its consent, by third parties. As according to the allegations of the Applicant the transfer of material of the candidate variety was made for research purposes only, the same did not affect the novelty of the candidate variety.
The CPVO rejected the application as in its opinion the candidate variety was not new. The Board of Appeal upheld this decision. It took account of information in the file that the candidate variety was similar in all its characteristics to a variety which had been developed between 1962 and 1969 and which was not only in the reference collection of the Bundessortenamt since 1982 but also sold within the European Union earlier than one year prior to the date the candidate variety was filed for registration as a plant variety right.
The Applicant filed an appeal with the General Court of the European Union in Luxembourg, which had to decide, inter alia, which party has to bear the burden of proof that plant material, which had obviously been available on the market outside the grace period, was not put on the market by the applicant or its predecessor or by any third party that had obtained the breeder’s prior consent for disposal (see here).
In this context, the Court first of all examined whether it was in a position at all to consider the question raised. It has been established by the case law of the Court that where the factual findings and assessment made by the Board of Appeal of the CPVO are the result of a complex assessment in the botanical or genetic fields requiring expert or specific scientific or technical knowledge, the review carried out by the General Court is limited to ascertaining whether there has been a manifest error (judgments of 15 April 2010 – Schraeder v. CPVO, case C-38/09 P, EU:C:2010:196, para 77, and of 19 November 2008 – Schraeder v. CPVO (SUMCOL 01), Case T-187/06, EU:T:2008:511, paras 59 to 63).
With regard to factual assessments that are not of a specific technical or scientific complexity, it becomes apparent from the case law that the General Court may carry out a full review of legality (judgments of 15 April 2010 – Schraeder v. CPVO, case C-38/09 P, EU:C:2010:196, para 77, and of 19 November 2008 – Schrader v. CPVO (SUMCOL 01), Case T-187/06, EU:T:2008:511, para 65).
Since the examination of the question regarding the novelty of the candidate variety does not require any particular expertise or technical knowledge, the Court came to the conclusion that a comprehensive judicial review would be required.
After consideration of the factual circumstances of the case the Court concluded that several documents submitted in the case file indicated that constituents of the candidate variety had previously been given to third parties and that, hence, the variety had been commercially exploited. It was therefore up to the applicant to prove that such constituents had their origin in activities that did not occur with the breeder’s consent. In order to prove such circumstances, the breeder argued that a cooperation contract had been concluded between the breeder and the institute to which material of the variety had been transmitted. Since the contract could not be produced, a declaration by the breeder was submitted in which it was claimed that it had transferred material of the candidate variety solely for research purposes. The Board of Appeal had stated in the appealed decision that such a declaration did not on its own constitute sufficient evidence to establish that the candidate variety was transferred merely for research purposes. In its judgment, the Court confirmed the findings of the Board of Appeal of the CPVO outlining that in order to assess the evidential value of a document, regard should be had, first, to the credibility of the account it contains. Moreover, it would be necessary to take account of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable. Even if all these requirements rendered in an affidavit as stated in Article 78(1)(g) of the Regulation are complied with, it cannot be attributed probative value where it has been drawn up by a person associated with the applicant, unless it is supported by other evidence. Insofar, the Court refers to a judgment of 21 October 2013 – Southern Splendor, T-367/11, EU:T-2013:585, paras 49 and the case law cited. Considering all the documents provided by the applicant, the Court concluded that they were not sufficient to demonstrate that the breeder had transferred the candidate variety for research purposes only and hence could not give rise to serious doubts regarding the legality of the contested decision of the Board of Appeal. For this reason, the Court rejected the appeal by the Applicant, confirming the decision of the Board of Appeal of the CPVO that the candidate variety had to be regarded as not being new in the sense of Article 10 of the Regulation.
It follows from this decision that there cannot be any doubt that an applicant is obliged to prove that a candidate variety is new. The CPVO is obliged in light of Article 76 of the Regulation to examine whether there are indications that the candidate variety might no longer be new. If such indications are given, the Office is obliged to request the applicant to provide suitable evidence that, despite the result of the examination by the Office, the candidate variety fulfills the protection requirement “novelty”.