The Court of Justice of the European Union has issued only a handful of decisions about plant variety rights, and in such cases the key issue was often licensing, rather than the conditions for obtaining and maintaining rights. The Court addressed the latter type of issues mainly in cases initiated by Ralf Schräder, a German plant breeder. On 18 September 2012, the General Court issued its longest judgment so far dealing with plant variety,Ralf Schräder v. Community Plant Variety Office (CPVO), stretching through no less than 258 paragraphs.
The opinion is lengthy because the Court addressed four actions brought by Mr. Schräder – three of them based on decisions from December 2007 by the Board of Appeal of the Community Plant Variety Office (CPVO), and one stemming from the Board’s decision from January 2009. In all of these instances, the Board of Appeal ruled against Schräder on matters of substance. The General Court now upheld – on substantive grounds – one of the four decisions by the Board, but set aside the remaining three because the Board failed to properly summon Schräder to the oral proceedings and thus violated his right to be heard.
History of the case
Because of the joinder of four distinct (although related) cases, Schräder v. CPVO is not an easy case to summarize. Nonetheless a summary of the various proceedings which extend over a decade might be worthwhile, as it facilitates an understanding of the General Court’s judgment of 18 September 2012. The second half of the post deals with that judgment in more detail.
The roots of the dispute go back to April 1999, when the Community Plant Variety Office (CPVO) granted Jørn Hansson a Community plant variety right for the variety Lemon Symphony. The variety belongs to the species Osteospermum ecklonis. In November 2001, Schräder applied to the CPVO for a plant variety right for Sumost 01, also belonging to the species Osteospermum ecklonis. Hansson brought an action for infringement before a German court against a company growing and marketing Sumost 01 (Schräder has a 5% shareholding in the company) and, simultaneously, lodged a written objection to the grant of a Community plant variety right for Sumost 01.
Schräder, in response to Hansson’s actions and to an examination report commissioned by CPVO suggesting that Sumost 01 was indistinguishable from Lemon Symphony, filed an application in October 2004 for cancellation of the right granted to Lemon Symphony. In February 2007, the CPVO refused the application for a Community plant variety right for Sumost 01. In April of the same year, Schräder applied for annulment of the right granted to Lemon Symphony. (The application for cancellation was grounded in the allegation that the variety was not stable, whereas the application for annulment was based in the allegation of the absence of distinctness at the time the right was granted). In May 2007, CPVO dismissed the application for cancellation of the right granted to Lemon Symphony, and in September it dismissed the application for annulment.
During this period (April – September 2007), the CPVO also adapted the official description of Lemon Symphony from 1997. The characteristic “Attitude of shoots” was changed from “erect” (score of 1) to “semi-erect to horizontal” (score of 4).
Between May and July of 2007, Schräder appealed the three decisions issued up to that point (i.e. in the period February-May 2007) by CPVO – the decision not to cancel the right for Hansson’s Lemon Symphony, the refusal to grant the right to Schräder’s Sumost 01, and the decision to adapt the official description of Lemon Symphony. (The fourth CPVO decision, refusing to annul Lemon Symphony, would come later, in September 2007). On 9 October 2007, the Board of Appeal of the CPVO informed Schräder and the CPVO by fax that the oral proceedingsin the three cases would be held on 4 December. The Board made this decision, although Schräder’s lawyer had informed the Board that the issue of annulment logically preceded the other issues, so that an appeal concerning annulment should come first. On 19 October, the day Schräder appealed the CPVO decision not to annul Lemon Symphony, Schräder’s lawyer repeated in a letter to the Board the opposition to the scheduled hearing. Despite the objection, the Board of Appeal held the oral proceedings on 4 December in each of the three cases decided by the CPVO in the period February-May 2007. In the December 4 decision, the Board of Appeal dismissed the appeals brought by Schräder. In April and May 2008, Schräder lodged applications against the Board’s decisions to the Court of First Instance (now the General Court).
As suggested above, the case concerning Schräder’s initiative to have Lemon Symphony annulled developed on a separate track. The Board of Appeal dismissed Schräder’s appeal as unfoundedin January 2009. In June 2010, Schräder brought an action before the Court against that decision.
A chart reflecting the above account tracks the chronology of the proceedings:
Judgment of 18 September 2012
The judgment of the General Court focuses mainly on Schräder’s action for the annulment of Lemon Symphony. The Court addressed that matter first, because a decision in favor of Schräder would be decisive for the outcome of the other three cases. The Court eventually dismissed Schräder’s arguments for the annulment of Lemon Symphony and turned to the remaining three cases, but did not scrutinize them for substance, having decided to set aside the contested decisions of the Board on procedural grounds.
The case concerning the annulment of Lemon Symphony revolved around the alleged absence of distinctness of the variety compared to other varieties from the species Osteospermum ecklonis. Schräder claimed that, when Hansson provided the plant material to the CPVO in 1997 for the purpose of the technical examination, the material consisted of plants which had been treated with growth regulators and trimmed. Schräder also raised the possibility that the German Federal Plant Variety Office, which in 1997 carried out the technical examination of Lemon Symphony for the CPVO, conducted the examination not on the plant material sent by Hansson but, instead, on cuttings obtained from that material. For these reasons, Schräder claimed, when the CPVO granted Hansson a Community plant variety right in April 1999, the official description of Lemon Symphony, as entered in the Register of Community Plant Variety Rights, did not reflect the variety as it actually existed. The official description of Lemon Symphony, in Schräder’s opinion, was based on characteristics which resulted from mechanical treatment and treatment with growth regulators, and not on the actual characteristics of the plant. To corroborate the claim, Schräder invoked an expert report from 2003 to the effect that Lemon Symphony’s shoots were semi-erect, and not erect – which is how they were described in the CPVO Register.
The proceedings before the General Court were not the first occasion on which Schräder used these arguments. In fact, he had argued all along that the variety Lemon Symphony – the obstacle to registration of Schräder’s own Sumost 01 – never existed in the form reproduced in the CPVO Register. But, the CPVO, the Board of Appeal, and ultimately the General Court, all rejected his allegations. The CPVO determined in September 2007 that “treatment with growth regulators did not necessarily affect the results of the technical examination, given that the plant material had been grown over a period allowing the effect of the treatment to wear off”. The Board of Appeal said substantially the same thing in January 2009. As for the allegation that the examination in 1997 may have been carried out on cuttings obtained from Hansson’s plant material, the Board concluded that “it is common practice to propagate from cuttings all the varieties used in an examination, taking the cuttings at the same time to ensure that all the material has the same physiological age.”
The General Court left intact the findings and factual assessments of the Board of Appeal. With respect to the cutting, the Court was satisfied that the Board of Appeal considered “well-known” the fact that taking cuttings in the technical examination is common practice. “In the absence of any evidence to the contrary, the finding of a well-known fact must be confirmed”, wrote the Court. Schräder’s complaint concerning the alleged effect of growth regulators did not fare any better. The Court deferred to the finding of the Board – the finding based on a complex assessment of a scientific nature by the experienced and expert members – that the treatment with regulators normally has no lasting effect. The Court noted that Schräder offered no specific information or evidence whatsoever to substantiate his assertion about the lasting effect of the growth regulators.
Finally, even if the Register had described Lemon Symphony in 1997 with a “semi-erect to horizontal” attitude of shoots – instead of the “erect” one – Lemon Symphonywould have been found a distinct variety nonetheless (or, at least, Schräder did not point to any variety existing at the relevant time that Lemon Symphony was indistinguishable from). Similarly, as the Board of Appeal stated in the contested decision, a different description of Lemon Symphony at the time Schräder applied for registration of Sumost 01 would not have impacted the analysis of the distinctness (or lack thereof) of Sumost 01. (The CPVO did in fact adapt – in April 2007 – the official description of Lemon Symphony from 1997, by changing the characteristic “Attitude of shoots” from “erect” to “semi-erect to horizontal”. The change of description did not imply that the identity of the variety differed from the original one; the change resulted from the increase in the number of varieties of Osteospermum ecklonis and a change in the test guidelines).
Ralf Schräder may find some solace in the fact that the Court annulled the three remaining decisions of the Board of Appeal, even if the annulments do not directly affect the status of Sumost 01 and Lemon Symphony. The reason for the Court’s decision was the failure of the Board of Appeal in December 2007 to grant Schräder’s request for a stay in the proceedings in the three cases while the proceedings for annulment of Lemon Symphony were ongoing. The General Court used some strong language in the judgment, by characterizing as “inappropriate, if not abusive” the use of power by the chairperson of the Board of Appeal who, in spite of Schräder’s well-founded objections, sought to hold the hearing on 4 December 2007.
