The importance of agriculture in the economies of countries such as Spain or those of Latin America has led to growing concerns to legally protect research and innovation in this field. In this context, protecting plant varieties is a way of ensuring and recognizing the development of new varieties, while also safeguarding the recognition of plant breeders’ rights.
In some sectors, there is significant demand for new varieties. Citrus fruits are a case in point. On August 31 this year, the Spanish Ministry of Agriculture, Fisheries and Food (MAPA) estimate for the 2020/2021 campaign a production of 7,045 million tons of citrus fruits. This is 12.6% more than the 2019/2020 campaign, 6.2% more than the average figure for the five preceding campaigns, and the fourth highest harvest quota so far. Given that there is considerable demand in the citrus fruit sector for new varieties – we would venture to say more than for traditional varieties – with varying and specific characteristics (such as juiciness, lack of pips, fruit quality etc.) which consumers find highly attractive, an increasing numbers of applications are being filed for plant varieties.
The reason why is very simple: by protecting new plant varieties, not only do research and development in general benefit from the process of improving plant species, but also breeders are able to protect the viability of their financial investment.
According to the statistics on protection of plant varieties published by the International Union for Protection of New Varieties of Plants (UPOV) from 2015-2019, no less than 302,301 protection certificates were granted by UPOV members in that period.
This increasing interest in protecting plant varieties and the continuous financial and strategic growth of this industry is evident, as witnessed by the success of seminars such as that organized by Garrigues last September 28 to analyze this particular branch of the law from the perspective of the European Union and Latin America.
This workshop was presented by Pedro Tent Alonso, partner in charge of the Litigation and Arbitration Department and head of the Intellectual Property Department for the Levante area, who offered an interesting analysis of European case law on significant issues such as the scope of plant breeder’s rights, “extinction” through exhaustion of this right, and the concept of farmer’s privilege.
Particular matters addressed during the event included well-known issues such as the “Nadorcott” case in which Garrigues acted in defense of the plant breeder’s right, and in which the scope and limitations of that right were examined. We should recall that the person who creates or discovers and develops a variety – provided that it is new, distinctive, uniform and stable – is granted a title to the plant variety, by virtue of which they can take action and prohibit unauthorized third parties from executing specific actions with respect to the variety constituents (and sometimes also regarding the harvested material).
As to the “farmer’s privilege” – an important exception regarding the powers granted to the holder of a plant variety – and the concept of exhaustion, Pedro Tent detailed some rulings of the European Court of Justice relating to the conditions for its applicability. Special mention was made, among others, of the following cases: Shulin (C-305/00), Jäger (C-182/01), Brangewitz (C-336/02), Geistbeck (C- 509/10), Vogel (C-242/14), Deppe (C-7/05 a 9/05) and Kanzi (C-140/10), which will require a second instalment of this post as the complex details of these cases merit further study and analysis.
One of the foremost specialists of the Spanish judiciary who presides over Section 9 of the Provincial Court of Valencia, highlighted the number of judgments issued by the Spanish courts in respect of this unusual subject. In addition, three highly respected experts from the plant variety sector took part in a round table in which they talked about their professional experience, mentioning possible areas for improvement in this field.
Francesco Mattina, Vice President of the Community Plant Variety Office (CPVO), highlighted the importance of explaining the most appropriate formulas for protecting plant varieties in the European Union and finally, various speakers from Latin America representing regulatory offices in the region, brought the event to an end with details of the ongoing progress of this complex industry on the other side of the Atlantic.
Clearly, this legal discipline has wide-ranging effects, both social and economic, that transcend borders, and is supremely important for all those involved who benefit from the agricultural production chain. For this reason, at Garrigues we will continue to keep abreast of and report on the latest court rulings in this regard.
Gina Navarro Pérez