b"GIANT VIEWSBY: CIOPORANADORCOTT CASE SHOULD PROMPT UPOV TO IMPROVE PVR SYSTEMeven after protection is granted, theyalmost 30 years old. Over the course of will have to seriously consider whetherthree decades, ornamental and fruit sec-to bring a variety on the market beforetors have been transformed by unprec-the Plant Breeders Right (PBR) grant.edented technological development and Consequently, the CJEU's decision mayglobalizationthe reality that should be diminish the role of PBR, whereas breed- reflected in the law. ers will have to rely more on trademarkYet, there is also a positive aspect in protection. the CJEUs Nadorcott decision. The Court CIOPORA has long pointed outstresses the difference between variety that the protection of harvested mate- constituents and harvested material: rial in the UPOV system, specificallyIn addition, it should be recalled that the requirement of unauthorized use ofArticle 5(3) of Regulation No 2100/94 propagating material, creates a signifi- defines the concept of variety constitu-cant loophole in the protection of vegeta- ents as referring to entire plants or parts Dr Edgar Krieger, Secretary General of CIOPORA tively reproduced varieties. The breederof plants as far as such parts are capable association has requested that harvestedof producing entire plants (ref 3). And T he European Court of Justice deci- material of such varieties is protectedfurthermore, the Court states: In the sion in Nadorcott case C-176/18directly and per se (ref 1). Now, the CJEUpresent case, the fruit harvested from exposes loopholes in the provi- has confirmed the analysis and forecastthe trees of the variety at issue in the sional protection and the protection ofof CIOPORA, to breeders disadvantage. main proceedings is not [.] liable to be harvested material under the UPOV Plant Additionally, the CJEU has con- used as propagating material for plants of Variety Protection (PVR) System. firmed a very limited scope of protectionthat variety. In his opinion the Advocate On December 19, 2019, the CJEUduring the period of provisional protec- General Saugmandsgaard e states even ruled that, because no authorizationtion. Contrary to the intention of the law- clearer that harvested material, when is required for propagation of varietiesmakers, there is no incentive for breederscapable of producing entire plants, in during the period of provisional pro- to commercialize their varieties before areality, amounts to variety constituents tection, the requirement of unauthor- PBR is granted. Growers and consumersas defined in Article 5(3) of the Basis ized use of variety constituents for thewill equally suffer from this development.Regulation (ref 4). That means that the enforcement of CPVR on harvested mate- Also, here CIOPORA has repeatedly askedproduction e.g. of cut roses, carnations rial is not given. policymakers to provide a more effectiveand other cut-flowers with meristematic This is a negative decision for breed- protection mechanism (ref 2).cells would fall under the primary right, ers, particularly for those involved in theIt is time to improve the PBRand their production would, in any case, breeding of fruit trees and other dura- system, says Krieger, At least for therequire the authorization of the title-ble species, where plants can producevegetatively reproduced varieties.holder, irrespective whether the plants harvested material over a long period ofProtecting harvested material directlyhave been propagated during the period time, says Dr Edgar Krieger, Secretaryand per se would benefit not only breed- of provisional protection.General of CIOPORA. For instance, theers but also honest growers and pro- In light of the Nadorcott case, decision makes it more difficult for breed- ducers. While the latter pay royalties,CIOPORA will continue to advocate for ers to effectively set up a so-called clubthey continue to suffer from unlicensedeffective protection for vegetatively prop-system, where a variety is produced andpropagation and production of harvestedagated varieties. The hope is that the marketed by a limited number of produc- material. Particularly imports of fruitsCJEU Nadorcott decision will prompt ers and traders to guarantee an adequatefrom countries with limited or no protec- UPOV and its members to reconsider supply and high quality of the produce.tion could be controlled more effectivelytheir system and make it fit for the 21st If the said breeders cannot exerciseif the harvested material was protectedcentury. control over the harvested materialdirectly. After all, the UPOV 1991 Act is Ref 1: See CIOPORA contributions to the Evaluation of the Community Plant Variety Right acquis in 2010, the input to the discussion in UPOV about the Explanatory Notes on Harvested Material, and the CIOPORA Position Paper on the Scope of the Right, approved by the Annual General Meeting of CIOPORA in 2014 in The Hague, The Netherlands.Ref 2: See CIOPORA Position Papers on PBR and on Patents, pages 38 and 39 (General PBR Matters), approved by the AGM 2015 in Hamburg, Germany.Ref 3: This is in line with the Melanie decision of the German Supreme Court of 14.02.2006 (X ZR 93/04).Ref. 4: See footnote 21 of the Opinion of the Advocate General of 18 September 2019, which is in line with the view of CIOPORA, see CIOPORA Position Papers on PBR and on Patents, page 8 (The Scope of the Right).64IEUROPEAN SEEDIEUROPEAN-SEED.COM"