Proof to be established to achieve nullity of a granted plant variety right

|Gert Würtenberger|

A party had requested the cancellation of a CPVR for an apple variety on the grounds that the variety had no longer been uniform or stable for a certain period of time. As proof for the allegation, the Applicant inter alia submitted 6 photographs of the attacked variety. These photographs had been taken by the Examination Office in other proceedings for grant of a CPVR as proof that fruits of the candidate variety were of the same size as those of the reference variety and thus not distinct. With these photographs the Applicant wanted to prove in the cancellation proceedings that the apples of the attacked variety did no longer show the striation as noted in the description of the protected variety. In addition, a declaration of a renowned expert was filed, explaining that such photos did not show the striation as included in the description of its characteristics.

Since the attacked variety had been used as a reference variety in the technical examination of younger candidate varieties and had not shown any instability problems, the cancellation request was rejected. The CPVO held that the variety was still in conformity with its characteristics and that fruits showed the colour pattern described in the variety description. Furthermore, it mentioned that the pictures submitted by the Applicant as proof were of low quality because of compression and that, hence, they could not be used as proof for the allegation that the protected variety no longer showed the characteristics at issue.

In the appeal proceedings initiated against the decision the Appellant requested that the decision be set aside, that the CPVR be cancelled and that a witness and an expert be heard in accordance with Articles 60 and 78, (1) (d), of the Basic Regulation EC2100/94 (hereinafter referred to as BR). The Appellant further made auxiliary requests according to Article 57 (3), of the BR that a complementary examination of the variety be carried out at a testing station other than Geves, preferably in Wurzen, Germany, and that an inspection in accordance with Articles 60 and 78 (1) (f) BR of the fruits of the attacked variety harvested in 2017 and stored until at least January 2018 be organized.

In the grounds of the appeal the Appellant inter alia raised the argument that the CPVO should resolve the contradictions in its position taken in the appeal proceedings and in the earlier proceedings with regard to which the photographs were used. The Appellant outlined that in the present case the CPVO was of the opinion that the fruits of the variety showed solid flush with strong stripes. These stripes were present in the pictures submitted with the request for cancellation but they were not visible, according to the Office, as a result of the fact that the photographs had been compressed. On the other hand, according to the Office, the pictures made in proceedings relating to another candidate variety represented a realistic representation of the fruits of the attacked variety. In that context, an expert was proposed to be heard.

Moreover, the Appellant saw a violation of Article 76 of the BR as the CPVO did not properly examine the crucial issue of the evidential value of the photographs of the fruits of the variety or the underlying electronic data file. On the contrary, the Appellant criticised that the CPVO had relied upon an unverified statement of the Examination Office which was not supported by pictures of fruits of the latest harvest of the variety. Furthermore, the CPVO did not consider the request to carry out a supplemental examination. Therefore, the CPVO violated the obligation to investigate the facts of its own motion according to Article 76 of the BR.

The Appellant also emphasized that there was a contradiction with regard to the Office’s attitude towards the photographs used. While the CPVO relied on the pictures in technical proceedings relating to another candidate variety, it denies in the appeal proceedings that the photographs could be a realistic representation of the fruits of the variety.

The Appellant furnished additional evidence, in particular a declaration of a witness and a second declaration of a well-reputed pomologist, in order to demonstrate that the fruits of the variety harvested at the Laimburg Research Center near Bozen did not show the requisite striation. Hence, it expressed serious doubts that the variety had not remained unchanged over time and requested that a complementary examination of the attacked variety be carried out at a testing station other than Geves, preferably Wurzen, and alternatively, that an inspection of the fruits of the attacked variety harvested in 2017 at Geves be organized and carried out in the period from January to March 2018 onwards.

The Board of Appeal did not regard the appeal to be well founded. With reference to case law of the Court of Justice of the European Union the Board of Appeal made it clear that a third party seeking a declaration or nullity must adduce evidence and facts of sufficient substance in order to be able to raise serious doubts as to the legality of the plant variety right following the examination provided for in Articles 54 and 55 of the BR (CJEU C-546/12, Schräder v. CPVO – see here). The Board of Appeal regarded the evidence submitted, namely photographs, supporting declarations and an expert’s testimony, not to constitute convincing evidence in the sense of the case law.

In its decision it points out, first of all, that the arguments raised by the Applicant were based on observations regarding characteristics 38/39 that were drawn from certain photographs, namely those submitted by the Office in its observations in relation to proceedings for grant of another candidate variety, and an additional set of 8 pictures taken at the Laimburg Experimental Centre. The observations as to the striation of the over-colour of the fruits on these pictures were made by the expert offered as a witness. The Board emphasizes that the pictures of the Office were regarded as unsuitable for the observation of striation as they had been used by the Office in other proceedings to illustrate Characteristic 28 – General Shape of the Fruit – and thus related to a different characteristic than the one being the subject in the cancellation proceedings.

The other 6 pictures were taken at a location with climatic conditions differing from the ones at the Examination Office and from samples said to represent the variety. Based on these observations and declarations of the witnesses, the Appellant claimed that the variety did no longer conform with its description in the sense of Article 9 of the BR. The Board outlines that it is not convinced of the evidence presented by the Appellant. This was not only based on the fact that the origin of the trees at Laimburg could not be traced as representing an official sample of the variety but also that the indirect proof of the lacking striation derived from observations based on photographs and that the proof did not conform to the conditions for verification of stability.

This case shows the difficulties a party may have to cause the CPVO to cancel a registered PVR. The proof such a party must submit must be of such quality there cannot be any doubt no that the variety to be cancelled no longer shows the characteristics being the basis for grant.

 

Posted in plant variety rights.