The Authors' Take - The CJEU reaches a controversial compromise on the scope of protection of plant variety rights

The CJEU reaches a controversial compromise on the scope of protection of plant variety rights

by Adrián Crespo 

This upcoming article, which follows up on the author's previous article in JIPLP, examines the judgment of the Court of Justice of the European Union (CJEU) in Club de Variedades Vegetales Protegidas (C-176/18), a landmark ruling on plant variety law. In this case, the CJEU tackles a referral from the Spanish Supreme Court which revolves around one of the key issues of European and international plant variety law: the so-called ‘cascade system’ and the enforcement of plant variety rights in respect of harvested material.

In summary, the CJEU has ruled that the activity of planting a protected variety and harvesting the fruit thereof, which is ‘not likely to be used as propagating materials’, requires the authorisation of the holder, provided that the original variety constituents were used without authorisation and the holder did not have a reasonable opportunity to exercise his rights. The author examines this finding critically in the wider policy context of European plant variety law and argues that the CJEU has applied a distinction according to the botanical characteristics of the harvested material and, in particular, the reproductive characteristics. This entails some practical advantages, but -in the author’s view- also raises some issues of its own. Furthermore, the ambiguities in the judgment’s wording may require some clarifications in the future.

The CJEU has also ruled that the holder is not entitled to prohibit performance of any acts such as variety propagation, marketing, importation etc. during the pre-grant, ‘provisional protection’ period. Therefore, performance of such acts does not constitute ‘unauthorised use’ for the purposes of the ‘cascade system’. The practical implications of this finding, which is highly important for breeders, are also examined critically.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]