2013 CIOPORA Chronicle
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2013. Produced in cooperation with FloraCulture International. Read in the 2013 issue: - PBR topsy-turvy. How UPOV and its members turn the system upside down - Breeding industry ‘manifesto’ reflects strong visions and daily practice - Marketability of innovation – the power of ideas in horticulture - Contemporary marketing solutions for horticultural businesses - Hydrangeas in a PVR squeeze - Clearly or just about distinguishable? and more...
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2013. Produced in cooperation with FloraCulture International.
Read in the 2013 issue:
- PBR topsy-turvy. How UPOV and its members turn the system upside down
- Breeding industry ‘manifesto’ reflects strong visions and daily practice
- Marketability of innovation – the power of ideas in horticulture
- Contemporary marketing solutions for horticultural businesses
- Hydrangeas in a PVR squeeze
- Clearly or just about distinguishable?
and more...
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GW 3/13<br />
rose breeding since 1906<br />
Another example of a ‘clear difference’ in today’s practice can be seen in the<br />
picture: one variety has red; the other variety has green pedicels. Obviously,<br />
the difference is ‘clear’ in the sense that it can be seen – from underneath the<br />
plants. Still, the question is whether breeders want candidate varieties to be<br />
granted CPVR protection on the basis of such differences.<br />
tics, the distinctness requirement<br />
of Art. 7(1) makes reference to the<br />
characteristics as a whole, not to<br />
one or more of the characteristics<br />
of the variety. Distinctness, by<br />
virtue of the law, shall be assessed<br />
taking into consideration the<br />
entire plant rather than assessing<br />
individual characteristics.<br />
There are, however, voices<br />
claiming that there is no difference<br />
between Art. 5(2) and<br />
Art. 7(1) of the Regulation.<br />
Even UPOV seems to promote<br />
the idea of a clear botanical<br />
difference in one characteristic<br />
being sufficient to grant plant<br />
variety protection. However, the<br />
European legislator obviously<br />
had a different idea in mind,<br />
when drafting the definitions<br />
of ‘variety’ and ‘distinctness’:<br />
“whereas the term 'variety' shall<br />
be considered to mean an entity<br />
as traditionally and commonly<br />
understood by plant breeders…<br />
consequently that entity must<br />
be broader than that, which satisfies<br />
the conditions governing<br />
the grant of Community Plant<br />
Variety Rights in full…”. 3<br />
In the future<br />
A CPVR as an IP right<br />
constitutes a legal title. While<br />
botanists, of course, are called<br />
in to explain the differences,<br />
which can be found between<br />
two varieties, it is a legal task to<br />
define the minimal distances<br />
between varieties. Eventually, it<br />
is a political issue. The breeders<br />
united in <strong>CIOPORA</strong> are well<br />
advised to exert their influence<br />
when it comes to defining commercially<br />
reasonable distances,<br />
new varieties will have to keep<br />
from the existing ones. |||<br />
1 I.e. the diff erence can be measured with a probability value of 1%.<br />
2 COUNCIL REGULATION (EC) No 2100/94, of 27 July 1994<br />
on Community plant variety rights.<br />
3 Proposal for a Council Regulation (EEC) on Community plant<br />
variety rights, CO M(90) 347 final, Submitted by the Commission<br />
on 6 September 1990, 90/C 244/01.<br />
About the author<br />
Thomas Leidereiter is dealing with Intellectual Property in general and Plant<br />
Variety Right (“PVR”) matters in particular at Luther Rechtsanwaltsgesellschaft<br />
mbH, Hamburg. With an IP background covering also trademark law<br />
and the law on unfair competition, he is advising clients on all aspects of protection<br />
of plant innovations. Thomas Leidereiter has been involved in some<br />
major court cases dealing with fundamental PVR issues in the ornamental<br />
sector as well as questions of PVR infringement. He is a member of the Expert<br />
Committee on the Protection of Plant Innovations at GRUR, a member of<br />
<strong>CIOPORA</strong>, its lawyer’s panel and the Working Group on DUS<br />
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