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The three-year period of prescription in respect of claims of a holder of a plant variety right starts to run from the date on which, first, the plant variety right was granted and, second, the holder had knowledge of the act and of the identity of the party liable, irrespective of the ongoing nature of an act of infringement or the date on which that act ended. Article 96 of the Community Plant Variety Rights Regulation (No 2100/94) lays down two conditions for determining the time from which the three-year period starts to run, one preceding the other. In case of a set of acts of infringement brought after more than three years have elapsed are time barred only from when, first, the plant variety right was finally granted and, second, the holder had knowledge of each individual act and of the identity of the party liable. The unauthorised acts referred to in article 13(2) of the regulation Community Plant Variety Rights Regulation (No 2100/94) are those which would have required authorisation of the holder of the Community plant variety right and therefore, for the purposes of applying Article 96 of Regulation No 2100/94, each act of infringement corresponding to the acts listed in Article 13(2) of that regulation must be taken into account individually, irrespective of whether it is repeated, ongoing or forms part of a set of acts.
Planting of a protected variety and harvesting of the thereof, which is not liable to be used as propagating material may not be regarded as an ‘act of production or reproduction (multiplication)’ of variety constituents within the meaning of Article 13(2)(a) Community Plant Variety Rights Regulation: authorisation of the holder of a Community plant variety is required if the conditions laid down in Article 13(3) of that regulation are fulfilled, unless the holder has had reasonable opportunity to exercise his right in relation to the said variety constituents.The fruit of a plant variety, which is not likely to be used as propagating material, may not be regarded as having been obtained through the ‘unauthorised use of variety constituents’ (Article 13(2)(a) Community Plant Variety Rights Regulation where those variety constituents were propagated and sold to a farmer by a nursery in the period between the publication of the application for a Community plant variety right in relation to that plant variety and the grant thereof. The same applies to those fruits if those fruits were harvested after the Community plant variety right was granted. When the propagation and sale takes place after the grant of the plant variety right, the holder may assert his or her right under Article 13(2)(a) and (3) of that regulation unless the holder had a reasonable opportunity to exercise his or her right in relation to those variety constituents.
General Court erred in law in the finding that Article 23(1) of the implementing regulation did not grant the President of the CPVO the power to insert, on completion of the technical examination of a variety, a new characteristic in respect of that variety: an application for a Community plant variety right may not be rejected solely on the ground that the characteristic of an examined variety was not referred to in either the technical questionnaire completed by the applicant or in the relevant test guidelines and protocols, no restrictions with regard to the time of insertion of a new characteristic, no infringement of the principle of legal certainty.
Damages under article 94 of Regulation No 2100/94 cover any damage except an ‘infringer supplement’ or a restitution of gains and profits made by an infringer. "Reasonable compensation" covers all damage connected to pay the license fee, including payment of default interest. Damages under article 94(2) of Regulation No 2100/94 must be determined based on specific matters put forward by the holder of the variety infringed, if necesarry by using a lump-sum method. When estimating these damages, costs of an interlocutory application and out-of-court expences can under certain conditions not be taken into account.
IPPT20150625, CJEU, STV v Vogel
Plant variety: in order to be able to benefit from the derogation from the obligation to obtain the authorization of the holder of the plant variety right, the right holder is required to pay the equitable remuneration, no later than 30 June following the date of reseeding
The General Court wrongly held that the principle of examination of the facts by the CPVO of its own motion also applies in proceedings before the Board of Appeal. No lead to the setting aside of the judgment: The General Court, non the less checked of the judgment under appeal whether the evidence meets the criteria pertaining to the principle of the examination of the facts of its own motion. Appellant had not adduced, to the requisite legal standard, the facts and evidence which had not been fulfilled in technical examination of the variety LEMON SYMPHONY. Consideration of the General Court that the appellant has produced no evidence of inadequacy of technical research for granting LEMON Symphony is factual and not testable. The General Court rightly rejected measure of inquiry: the appellant did not advance any evidence whatsoever.
Legality decisions: general Court can review legality decisions CPVO by examining whether characterisation of facts was flawed. Descretions CPVO: CPVO has decretion to make separate request for plant material to be examined and for documentary evidence relating to it and to make new request plant material after imprecise initial request; principles of sound administration and effectiveness of proceedings.
IPPT20121115, CJEU, RWZ v STV
Establishing and scope of obligation supplier of processing services to provide information on protected varieties.Request for information to supplier or processing services does not need to contain evidence of obligation of farmer to comply.
“Reasonable compensation” in case of infringement variety right equivalent to C-licence: fee payable in the same area for production under licence of propagating material of same variety. "Reasonable compensation” does not include costs incurred for monitoring compliance
No exhaustion of plant variety rights in case of breach of license conditions or restrictions which relate directly to the essential features of the plant variety right concerned. Awareness or deemed to be aware of the conditions of the license of no significance restrictions
A species is composed of its different varieties: The very nature of a ‘species’ is that it is composed of its different varieties and, for this reason, a detailed description of such a species cannot be detached from the varieties which it comprises. Limited review to determine variety lacking distinctness.
Only obligation to provide information to holder of plant variety right in case of indication of possible infringement
Biotech-directive aims to prevent divergences of practice and case-law. Community competent to harmonise intellectual property law. Commercial exploitation of an invention is not con-trary to ordre public or morality because of a pro-hibition. Genetically modiefied plant variety not patentable, but inventions that concern a grouping wider than a single plant variety are patentable. Biotechnology Directive deprives Member States of option under TRIPS, but is compatible with TRIPs. Biotechnological invention versus discovery
IPPT19820608, ECJ, Maize Seed
Plant variety rights: open, exclusive license is not incompatible with prohibition on cartels, but absolute territorial protection of licensee is.