The European Court of First Instance rejected an appeal against a decision of the Community Plant Variety Office

The Court of First Instance (CFI) of the European Communities ruled on 19 November 2008 in Case T-187/06 Schräder v Community Plant Variety Office (CPVO). Object of the ruling of the CFI was an appeal against the decision of the CPVO, as confirmed by its Board of Appeal, that the variety SUMCOL 01 could not be clearly distinguished from a reference variety. For that reason SUMCOL 01 did not qualify for a Community Plant Variety Right.

The main grounds of the appeal against the decision of the CPVO were:

  • The reference variety from which SUMCOL 01 was considered not to be distinct was SUMCOL 01 itself. The non-distinctness was for that reason not a ground to refuse SUMCOL 01 plant variety protection.
  • If the reference variety was another variety than SUMCOL 01 , it was not a variety of common knowledge. Also for that reason the non-distinctness could not be a reason to refuse SUMCOL 01 protection.
The CFI dismissed the appeal. In its view there were no sufficient grounds to question the CPVO's assessment, based on the results of the technical examination performed by the Bundessortenamt, that SUMCOL 01 and the reference variety constituted two different varieties. The CPVO's assessment furthermore justified the decision of its Board of Appeal that the reference variety was a matter of common knowledge.

The decision of the CFI is of fundamental importance, whereby it expresses the opinion that the appraisal of the distinctive character of a plant variety, a major requirement for plant variety protection, is of a scientific and technical complexity such as to justify a limit to the scope of judicial review.

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