62018TJ0112_RES
Case T‑112/18
Pink Lady America LLC
v
Community Plant Variety Office
Judgment of the General Court (Third Chamber), 24 September 2019
(Plant varieties — Nullity proceedings — Cripps Pink apple variety — Articles 10 and 116 of Regulation (EC) No 2100/94 — Novelty — Derogative grace period — Definition of exploitation of the variety — Commercial evaluation — Article 76 of Regulation (EC) No 874/2009 — Late submission of evidence before the Board of Appeal — Evidence submitted for the first time before the General Court)
Agriculture — Uniform legislation — Protection of plant varieties — Declaration annulling a right granted improperly — Lack of novelty — Derogative grace period — Calculation — Application of transitional provisions
(Council Regulation No 2100/94, Arts 10(1) and (2), 116(1) and 118)
(see paragraphs 24-26, 29, 32, 34)
Agriculture — Uniform legislation — Protection of plant varieties — Declaration annulling a right granted improperly — Discretion of the Community Plant Variety Office — Re-examination of the protected variety — Conditions — Serious doubts as to the legality of the grant of the right — Burden of proof
(Council Regulation No 2100/94, Arts 6, 7, 10, 20, 21, 54 and 55; Commission Regulation No 874/2009, Art. 53a(2))
(see paragraphs 45-49, 53)
Agriculture — Uniform legislation — Protection of plant varieties — Declaration annulling a right improperly granted — Lack of novelty — Exploitation of the variety — Definition — Commercial evaluation — Precluded
(Council Regulation No 2100/94, Art. 10)
(see paragraphs 66-69, 73)
Résumé
In the judgment in Pink Lady America v CPVO — WAAA
(Cripps Pink) (T‑112/18), delivered on 24 September 2019, the Court dismissed the action for annulment brought against the decision of the Board of Appeal of the Community Plant Variety Office (CPVO), by which the CPVO had dismissed the action for annulment of the Community plant variety right for the Cripps Pink apple variety. In that judgment, after having provided guidance on the calculation of the derogative grace period, the Court stated that the concept of ‘exploitation’ of a variety did not cover commercial evaluation.
In the present case, on 29 August 1995 the Department of Agriculture and Food Western Australia lodged an application for a Community plant variety right for the Cripps Pink apple variety, marketed under the name Pink Lady. That right was granted by the CPVO. Pink Lady America LLC, the applicant, lodged an application for nullity in relation to that variety, on the grounds that it did not fulfil the novelty conditions laid down in Article 10 of Regulation No 2100/94. (
1
) The Board of Appeal of the CPVO dismissed the application for nullity, taking the view that the applicant had not provided evidence necessary to demonstrate that the Cripps Pink variety had been commercially exploited outside the territory of the European Union prior to 29 August 1989, which corresponded to the six-year grace period.
The applicant claimed, first, that the Board of Appeal erred in applying the six-year derogative grace period to commercial activities within the European Union laid down in Article 116 of Regulation No 2100/94 without having first taken into account the provisions of Article 10(2) of that regulation. Second, it disputed the Board of Appeal’s assessment of the novelty requirement.
In the first place, the Court recalled that the effect of Article 116 of Regulation No 2100/94 is to extend the grace period laid down in Article 10(1)(a) of that regulation, as regards exploitation within the territory of the Union, from one year before the application for protection to four, or six years in the case of trees, where the date of application is within one year of the entry into force of that regulation, that is to say, 1 September 1994.
In the present case, since the application for protection was filed within one year of the entry into force of Regulation No 2100/94, two grace periods therefore apply: first, a period of six years before the entry into force of the basic Regulation for sales and disposals within the EU and a period of six years before the filing of the application for sales and disposals outside the EU. Since the variety was first marketed within the European Union in 1992 in the United Kingdom, the Court therefore concluded that the Board of Appeal did not err in limiting itself to examining the impact of the evidence provided by the applicant on whether the variety at issue had been sold or disposed of to third parties by the breeder outside the territory of the European Union before 29 August 1989.
In addition, the Court pointed out that the purpose of Article 10(2) of Regulation No 2100/94 is to specify the circumstances in which certain legal situations are or are not covered by the concept of disposal for the purposes of exploitation of the variety in order to determine whether the variety is novel. Conditions that must be met in order for a disposal to be considered not to negate novelty are not cumulative. Since the situations referred to in that article did not arise in the present case, the Court concluded that the Board of Appeal was correct to not apply that provision.
In the second place, as regards the assessment of the novelty requirement, the Court recalled that it was for the applicant to provide evidence enabling the Board of Appeal to conclude that the novelty requirement was not fulfilled at the time when the right was granted. Furthermore, for a sale or disposal made outside the European Union before the grace period not to negate novelty, it is sufficient that the sale or disposal to a third party is not made by the breeder or with his consent ‘for purposes of exploitation of the variety’. (
2
)
In that regard, the Court explained that the concept of ‘exploitation’ of the variety relates to exploitation for profit, requiring ‘an evident desire to make sales’, but excludes commercial trials to assess varieties under commercial conditions to determine their value to customers. It was clear from the evidence, taken as a whole, that the breeder had distributed the disputed variety in 1985 ‘for trial and evaluation purposes’. Therefore, the Court held that the Board of Appeal correctly deduced that commercial evaluation did not amount to commercial exploitation and that, accordingly, sales or disposals made for testing purposes before the grace period were circumstances that did not negate novelty.
(
1
)	Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).
(
2
)	Within the meaning of Article 10(1) of Regulation No 2100/94.