Categories
Patent

Patentability of Plants and Animals exclusively obtained by Essentially Biological Processes

|Gert Würtenberger| Article 53(b) of the European Patent Convention (EPC) excludes from patentability plants or animal varieties or essentially biological processes for the production of plants or animals. This exception, however, does not apply to microbiological processes or products thereof. In its decision G 2/12 (Broccoli II/Tomato II) the Enlarged Board of Appeal (EBA) of the EPO […]

Categories
Novelty

Judgment of the General Court in Case T‑112/18 of 24 September 2019

[ Karin Grau-Kuntz ] Background to the dispute On 29 August 1995, the predecessor in title of the Western Australian Agriculture Authority (WAAA), the Department of Agriculture and Food Western Australia (‘the Department’) filed an application for a Community plant variety right at the Community Plant Variety Office (CPVO) for an apple variety belonging to […]

Categories
Trademark

Genuine Use of a Registered Trademark – Decision of the Second Board of Appeal of 23 October 2019 in Case R 767/2019-2

|Gert Würtenberger| A Union trademark that has been registered for more than five years is subject to the user requirement in order to safeguard its enforceability in opposition and/or infringement proceedings (as regards proof of use in opposition proceedings, see Article 47(2) EUTMR). Whether genuine use has occurred is, according to established case law, to […]

Categories
Plant Health

New EU plant health rules

|Gert Würtenberger| The need for measures to secure plant health has long been recognized. They have formed the subject of international agreements and international conventions including International Plant Protection Convention (IPPC) of 6 December 1951, concluded at the United Nations Food and Agricultural Organization (FAO) and its new, revised text approved by the FAO Conference […]

Categories
Court of Justice

Amendments of the rules of procedure of the Court of Justice of the European Union

|Gert Würtenberger| On 1 May 2019 important changes of the Rules of Procedure of the Court of Justice entered into force. It relates to decisions of an independent Board of Appeal of one of the following Offices and Agencies of the EU, namely of .  the European Union Intellectual Property Office (EUIPO) .  the Community […]

Categories
Plant variety rights

Brexit

|Gert Würtenberger| At this stage it is unclear whether the United Kingdom will leave the EU without having achieved an agreement with the European Union. Thus, it is important to know how plant variety rights granted on the Union level or applications pending with the CPVO will be dealt with once the United Kingdom no […]

Categories
Plant variety rights

Proof to be established to achieve nullity of a granted plant variety right

|Gert Würtenberger| A party had requested the cancellation of a CPVR for an apple variety on the grounds that the variety had no longer been uniform or stable for a certain period of time. As proof for the allegation, the Applicant inter alia submitted 6 photographs of the attacked variety. These photographs had been taken […]

Categories
Plant variety rights

Public Interest and Compulsory Licences

|Gert Würtenberger| In its decision dated 28 March 2018 the CPVO decided about an application for grant of a compulsory licence pursuant to Article 29 of Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community Plant Variety Rights in respect of a blackcurrant variety. The Applicant had failed to achieve a favourable outcome […]

Categories
Plant variety rights

Brexit: What will happen with Community Variety Rights

|Gert Würtenberger| With regard to the pending withdrawal of the United Kingdom from the European Union there is only one certainty up to this point: on 29 March 2019 United Kingdom of Great Britain and Northern Ireland will leave the European Union (Brexit). On that day Community plant varieties rights will cease to have effect […]

Categories
Plant variety rights

Invalidation and Nullity Proceedings – What is the Duty of the CPVO

|Gert Würtenberger| As the conditions laid down in Articles 7 (distinctness), 8 (uniformity), 9 (stability) and 10 (novelty) are prerequisites for the grant of a Community plant variety right, the same is unlawful if it turns out that one of these conditions is not or no longer given. In this case, it is in the […]