Crucial decision by German Federal supreme court on plant breeders' rights:
Germany: 'Variety is new at the time application is made for a grant'
The variety in issue was Clematis 'Fond Memories' bred in the United Kingdom by Tolver Gooch Limited Thorncroft. On 23 April, 2008, an application for plant breeders' rights in Germany was made by Hortis Legal as the Procedural Representative appointed by Genesis. The application stated that the variety had already been commercialised in the United Kingdom on 1 June 2004, which was less than 4 years prior to the application filing date. The Bundessortenamt rejected the application even though applications had already been accepted by the authorities in France and the Netherlands.
Hortis Legal and Genesis believed that the novelty requirements as set out in the German Plant Varieties Protection Act, were not in line with the UPOV Convention and as such did not accord an equivalent treatment to applicants in other UPOV-Member States.
On 13 January, 2014, the German Federal Supreme Court decided in favour of Hortis Legal and Genesis Plant Marketing Ltd on the grounds that when establishing whether a candidate variety is NEW at the time an application is made for a grant of plant breeders' rights in Germany, the competent authority - in this case the 'Bundessortenamt' - must comply with the novelty rules set out in the UPOV Convention and not those in the German Plant Varieties Protection Act.
The German Plant Varieties Protection Act stipulates that a variety shall not be deemed to be NEW, if on the date of application, material of the candidate variety has already been commercialised for longer than one year within the territory of the European Union and longer than four years outside the territory of the European Union, or in the case of trees or of vines, six years.
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For more information
Hortis Legal
Lennard van Vliet
lennard@hortis.nl
Genesis Plant Marketing Ltd
Peter Dealtrey
peter@genesis-plantmarketing.co.uk