17 th EIPIN Congress 15 April 2016 Enforcement of breeders rights in the EU (PBR case-law and challenges)

Transcription

1 17 th EIPIN Congress 15 April 2016 Enforcement of breeders rights in the EU (PBR case-law and challenges) Francesco MATTINA Head of Legal Unit Community Plant Variety Office 1

2 Summary Introduction Subject-matter of plant variety rights Content of the right Contractual exploitation rights Exceptions Council Regulation 2100/94 («BR») Measures under the Enforcement Directive Problems linked to infringement of PVRs A Landmark case Ballerina Some final considerations and remarks 2

3 The Community Plant variety system A system for the intellectual protection of plant varieties was established by a Regulation of the European Union in 1994, The intellectual property sui generis rights granted under this system are valid throughout the territory of the 28 Member States of the European Union, The EU system co-exists with the national systems of those 24 EU Member States, It is the applicant s choice : national or EU plant variety rights. 3

4 Main features of the CPVR system Varieties of all botanical genera and species may be protected, The CPVO has received up to today applications for more than 1800 different plant species, Duration of the Community right: 25 years (30 for vines, trees and potato varieties), Provisional protection covering the time from publication of the application until the grant of the Community right. 4

5 The Community Plant Variety Office The Community Plant Variety Office (CPVO) has been operational since 1995, Based in Angers, France CPVO Management: President and Vice- President appointed by the Council, The CPVO has a total of 45 staff members: 12 Nationalities 5

6 Unitary effect of the CPVR system in EU MS 6

7 Technical and legal requirements to grant a CPVR Testing for DUS: D distinct U uniform S - stable And Novelty not to confuse with patent Variety denomination different from TMs 7

8 DUS requirements The candidate variety should be distinct from already existing varieties 8

9 DUS The candidate variety should be uniform amongst its individual plants 9

10 DUS The candidate variety should be stable: its characteristics should remain unchanged after repeated propagation 10

11 Statistics applications received titles granted ( in force) different species titles in force for agricultural species of which for Zea mays followed by Triticum aestivum, Solanum and Brassica 11

12 Distribution by crop sectors 12

13 Applications by EU MS 13

14 Emerging challenges and issues Issue of climate change and impact on plant breeding, seed production and direction of trade, Traditional seed producing countries and regions of the word are likely to shift, Advancement of biotecnology and shortening of lifespan of varieties, Food security and change in consumers preferences and market demand, Importance of quality attributes in food crops with increase of demand for new varieties, Need for new varieties for specific use such as biofuel production, Increasing size of farms, 14

15 Further issues to be kept in mind Phitosanytary and environmental standards increase, Need for higher investments in R&D, Impact of new breeding techniques vs traditional breeding to accelerate innovation, Need for varieties which resist to pests and deseases, Reduction in the use of pesticides Need for increase production of food and energy for an evergrowing population on less land with less water, less resources, Urbanization pushes agriculture to marginal lands, New plant varieties provide for a greater harvest security and higher food security, Food produced in a more sustainable manner, 15

16 Farmers? More high-quality plant varieties are available to EU farmers in order to produce food and feed in a amore efficient and sustainable way with much needed economic benefits, New techniques will become a major driver of Europe s economy and ensure competitiviness on a global scale, Farming is under increase pressure due to rapid soil degradation, fast depletion of ground water, pest and diseases controls and extreme weather events, 16

17 Introduction Nature is a perferct copying machine: Copying is cheap, with little capital investment, Difficult to distinguish if no distinction between legally and illegally produced harvested products, Illegality does not bother consumers, Not perceived as health hazard like for pharmaceuticals, PBR infringement often linked to a cluster of other offences. 17

18 But keep in mind Vegetative reproduction, although cheap, is risky because it can be infected by pests, Respect hygene rules is important, Outbreak of Pepino Mosaic virus in Sicily: a successful pathogen that rapidly evolved from emerging to endemic in tomato crops. 18

19 Subject-matter Propagating material: plants and parts thereof that are intended for plant cultivation or propagation (including seed, cuttings and divisions). Harvested material: material obtained through the use of propagating material (like cut flowers, fruit and foliage). 19

20 Content of the right The right-holder may prevent others from: producing or reproducing the protected plant variety (also known as multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting and importing, and stocking (Art. 13 of Regulation No 2100/94 BR ), The cascade principle, The right-holder may make his authorization subject to conditions and limitations (contractual exploitation rights/license agreements) 20

21 Contractual exploitation rights Art. 27(2) BR: The right-holder may invoke the rights conferred by the CPVR against a person enjoying the right of exploitation who contravenes «any» of the conditions or limitations attached to his exploitation right (contractual responsability visà-vis non-contractual one «lex Aquilia de damno») 21

22 Exceptions Some acts done for certain purposes do not require the breeder s authorization. These include acts done for: private and non-commercial purposes; experimental purposes; the purpose of breeding other varieties; and the use of farm-saved seeds. 22

23 Council Regulation 2100/94 ( BR ) Infringing acts in relation to the variety Infringing acts in relation to variety denominations Injunctions Compensation for damages Competent Courts Prescription Penalties 23

24 Measures under the Enforcement Directive Contains provisions inter alia on: General obligations Evidence and preserving evidence (saisiedescription) Right of information Provisional and precautionary measures Corrective measures Damages and legal costs Publication of judicial decisions 24

25 Problems linked to proving the infringement of PVRs Example: illegal tomato reproduction has the same DNA of the protected variety, Difficulties linked to the searching of evidence of illegal tomato reproduction, For expensive seeds the illegal vegetative reproduction becomes attractive. 25

26 A Landmark case from the Court of Milan 2012 lactuca sativa Ballerina Rijk Zwaan wins landmark case against illegal reproduction against the Italian company Agriseeds who has illegally reproduced (act of conditioning) the seeds of the protected lettuce CPVR Ballerina, Total amount of damages granted by Court to plaintiff: ,00 plus interests, costs and legal expenses for ,00. 26

27 The case Rijk Zwaan has been fighting infringement of Ballerina RZ since 2005, when sales representatives from Rijk Zwaan Italia noticed a similar-looking variety in the market: Criolla, sold by Agriseeds. Rijk Zwaan suspected that Ballerina, which is protected by a CPVR, was being reproduced without permission and sold under a different name. After Rijk Zwaan s own DNA tests had confirmed this suspicion, the company initiated legal proceedings against Agriseeds on 23 June

28 The preliminary measures phase A petition for saisie-description inaudita altera parte, followed by taking of samples and a seizure of commercial and accountant documentation has been granted by the Court of Milan, Intermediate processing considered infringing activity, Seizure executed also against a Spanish company accused of illegally conditioning the seeds pursuant to Art. 38 et seq. of Council Regulation (EC) No 44/2001 (Juzgados de Igualada), Injunction granted, Damage award: unjustified profit of 205,701 increased of monetary re-evaluation, interests, legal costs and costs of the court experts involved by selling Criolla seeds. 28

29 What can we learn? PVR protection is a legal tool to defend innovation in plant varieties, Need to foster cooperation between public and private sectors, Short cycle times: variety identification test results are vital, DNA based tests seem to be accepted as evidence by judicial authorities, A legal strategy needed: combination of criminal and civil actions Need for specialization on the side of Courts, judges, judicial bailiffs, experts, custom and police officers. 29

30 Challenges Inspections of growers are difficult, Difficulties to combat piracy downstream in the vegetable business chain, EU seed marketing regulations need better implementation in MS 30

31 Next: IP infringements in PVR is not perceived as «serious» offence compared to other crimes, Penalties are not perceived as sufficient to fight against conterfeiting, Custom actions in the EU can provide an incentive to breeders. 31

32 Final remarks The EU legislator is active in the field of enforcement on IPRs (the Observatory). Legal tools are available to right holders. Rights of defendants must be taken into account. Member States must implement and apply EU legislation. 32

33 Thank you for your attention! 33