A-G Saugmandsgaard Øe: in the period between publication of the application for a plant variety right and its grant, the breeder is free to grow and to harvest and sell the products01-11-2019 Print this page
Case C-176/18 Club de Variedade Vegetales Protegidas v Martinez. Reference for a preliminary ruling from the Tribunal Subremo - Spain. Opinion A-G Saugmandsgaard Øe
The referring court asks, in essence, whether, when a farmer, in the period between the publication of the application for a plant variety right and the grant of that right, has purchased saplings of a protected variety from a breeder, the planting of those trees and the subsequent harvesting and selling of the products thereof is subject, first, to the payment of equitable remuneration to the breeder, in so far as those acts are carried out during that period and, second, to the requirement of the breeder's permission, in so far as those acts are continued to be carried out after the grant of the breeder's right.
A-G Saugmandsgaard Øe proposes that the Court should answer the questions referred by the Tribunal Supremo as follows:
1. Article 13(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights must be interpreted as meaning that acts consisting in the planting of components of a protected variety and the harvesting of its fruits do not fall within the categories of acts listed in that provision which, in order to be carried out, require the authorisation of the holder of the plant variety right.
2.Article 13(3) of Regulation No 2100/94 must be interpreted as meaning that the concept of 'unauthorised use' of protected components does not cover acts relating to those components, such as their propagation or marketing, in the period between publication of the application for a Community plant variety right and the grant of that right.
"55 In the light of the foregoing, I take the view that Article 13(3) of Regulation No 2100/94 protects the holder only to the extent that the acts referred to in Article 13(2) of Regulation No 2100/94 were carried out in respect of the components without his consent after the grant of the plant variety right.
60 First, in so far as the components were reproduced and marketed by the nursery before the grant of the plant variety right, those acts do not constitute unauthorised use of those components within the meaning of that provision.
61. Secondly, in the light of the answer I proposed to the first and second questions referred for a preliminary ruling, the planting and harvesting of the products by the farmer does not fall within the scope of Article 13(2) of Regulation No 2100/94, with the result that, even after the grant of the plant variety right, those acts cannot lead to any unauthorised use of the components.
62. I therefore conclude that, when saplings of a plant variety have been purchased from a tree nursery in the period between the publication of the application and the granting of the Community plant variety right for that variety, the buyer may freely grow those trees and harvest and sell the fruits thereof during and after that period."
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