One of the core elements of a valid application is the description of the variety. It characterizes the breeding result which should be protected. As outlined under I. 2 c) protection will only be granted if the variety to be protected is, inter alia, clearly distinct from other known varieties of the same species (taxon). For this reason, the applicant has to provide information on characteristics of the variety which make it clearly distinguishable from other known varieties. In order to allow the Office to organize the technical examination and to choose the appropriate reference varieties for the same, such other varieties should be indicated by the applicant in the Technical Questionnaire.
Regarding the CPVR system and besides the information on characteristics of the variety which make it clearly distinguishable from other known varieties, the Proceedings Regulation (Regulation EC No 1239/95 – here) requires further information.
Article 19 No. 2 (d) states that the application shall contain the following details regarding breeding, maintenance and propagation of the variety, including information on:
. the characteristics, the variety denomination or, in the absence thereof, the provisional designation, and the cultivation of any other variety or varieties the material of which has to be used repeatedly for the production of the variety, or
. characteristics which have been genetically modified, where the variety concerned represents a genetically modified organism within the meaning of Article 2(2) of Directive 2001/18/EC of the European Parliament and of the Council.
It is important to emphasize that the description of the variety in the Technical Questionnaire has the sole purpose of allowing the Office to organize the technical examination and in particular to choose relevant comparison varieties. The final description of the variety entirely depends on the result of the technical examination. Consequently, a deviation between the observations of the Office and the characteristics indicated by the applicant in the Technical Questionnaire does in principle not hamper the grant of protection if the DUS requirements are fulfilled. However, large discrepancies may lead, nevertheless, to the rejection of the application. Particular attention should be paid to the precise reproduction of the plants or parts of the plants, such as photos accompanying the application.
The Technical Questionnaire provides space for the applicant to indicate further characteristics the CPVO could take into account when performing the Technical Examination. As the Regular determines distinctness as a condition for protection, other characteristics than those included in the Technical Examination at the time the application is filed may give the applicant the right to obtain protection for a variety with a new characteristic as a long as the same fulfills the further protection requirements uniformity and stability.
Published on June 28, 2021