Case T‑556/22
House Foods Group, Inc.
v
Community Plant Variety Office
Judgment of the General Court (Third Chamber) of 28 February 2024
(Plant varieties – Grant of a Community plant variety right for the plant variety SK20 – Inadmissibility of the appeal before the Board of Appeal – No interest in bringing proceedings – Article 81(1) of Regulation (EC) No 2100/94)
Action for annulment – Natural or legal persons – Interest in bringing proceedings – Need for a vested and present interest – Action capable of securing a benefit for the applicant – Action against a decision granting protection to a plant variety – Action brought by the applicant for protection in order to amend the official description of the protected variety – Amendment without any bearing on the extent of the protection conferred – No interest in bringing proceedings – Inadmissibility
(Art. 263, fourth para., TFEU; Council Regulation No 2100/94, recital 11 and Arts 5(1), (2) and (3), 7(1), 13(1) and (2) and 81(1))
(see paragraphs 24, 25, 33-40)
Résumé
In its judgment, the General Court dismisses the action for annulment brought by House Foods Group, Inc. against the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) (‘the contested decision’). The Court considers that the breeder of a plant variety has no interest in having the decision of the CPVO granting protection to its variety annulled on the ground that the official description of that variety does not include an additional characteristic asserted by that breeder.
In 2017, the applicant applied to the CPVO for a Community plant variety right (1) for the onion variety SK20. In the technical questionnaire attached to the application, the applicant referred to the ‘low lachrymatory factor and pyruvic acid’ as an additional characteristic which may help to distinguish the variety SK20.
By its decision of 3 May 2021, the CPVO granted the protection to the candidate variety. However, the official description of the variety SK20 did not contain the additional characteristic in question, because, in the CPVO’s opinion, the outcome of the technical examination (2) had been conclusive on the basis of the standard characteristics included in the technical protocol in force, with the result that it was not necessary to take into consideration the additional characteristic asserted by the applicant during the technical examination.
By the contested decision, the Board of Appeal of the CPVO dismissed the appeal by which the applicant sought the inclusion of the low lachrymatory factor and pyruvic acid in the official description of the variety. The Board of Appeal found that the applicant had no interest in bringing proceedings since it was not contesting the decision to grant a Community plant variety right for the variety SK20.
Findings of the Court
Ruling on the applicant’s interest in bringing proceedings, the Court assesses whether the amendment of the description of the protected variety accompanying the decision granting protection could procure an advantage for the applicant.
First of all, the Court states that the grant of the protection to a candidate variety does not require an exhaustive assessment of all that variety’s characteristics, but only of those of particular importance to its protectability and, in particular, its distinctness. (3) Accordingly, the technical examination is intended only to determine whether the candidate variety is sufficiently distinct, uniform and stable in relation to other varieties. However, its aim is not to assess all the candidate variety’s characteristics, or the use or commercial value of those characteristics.
Moreover, the official variety description established by the Examination Office is a summary of the observations made during the technical examination and reflects only certain specific characteristics which suffice to demonstrate the distinctness of the variety.
The Court subsequently recalls that, for a plant variety to be protectable, it is sufficient that it be distinguishable by at least one of the characteristics that result from its genotype. (4) Therefore, even if the additional characteristic asserted by the applicant had been included in the official description of the variety SK20, that would not have had any bearing on the protection conferred on that variety. A new variety, displaying the same low lachrymatory factor and pyruvic acid, would still be protectable so long as it displayed one or more other characteristics distinguishing it from the applicant’s variety.
Lastly, the Court finds that inserting the additional characteristic into the description of the protected variety cannot procure any advantage for the applicant because the protection concerns the plant material itself, as defined by all the characteristics that result from its genotype, whether or not they are included in the official variety description. (5)
Accordingly, by concluding that inserting the additional characteristic into the official variety description would in no way amend the scope of the protection of the variety SK20, the Court confirms that the Board of Appeal was correct to find that the applicant had no interest in bringing proceedings.