The President of the Community Plant Variety Office (CPV), Mr. Martin Ekvad, reported in a recent conference on the Intellectual Property Protection for Plant Innovation in Amsterdam on 30 November and 1 December 2017 that the CPVO has received a first request for a compulsory license. According to that provision, a compulsory license shall be granted only on grounds of public interest and after consultation of the administrative council.
The preamble to the regulation mentions that the public interest may include the need to supply the market with material of ribes nigrum (black current). An Applicant specialized in the processing of fruits, including black currents, requests a compulsory license concerning EUPVR No. 35825 “Ben Starav” of the species ribes nigrum (black current). While the President did not mention any further details with regard to the arguments supporting such a request, the exchange of information among participants of the conference indicated that the Applicant had asked the owner of the rights in the protected black current variety for grant of a license which, however, was refused. As the berries of the protected variety have nutritious components that may have in favorable characteristics of processed foods, the Applicant is now striving for grant of a compulsory license.
The grant of a compulsory license is already provided for in Article 17 of the 1991 UPOV Convention. Compulsory exploitation rights in Community Plant Variety Rights are regulated in Article 29 of the Regulation 2100/94. In addition to the preamble of the Regulation while emphasizing that the public interest may include the need to supply the market with material offering specified features or to maintain the incentive for continued breeding of improved varieties, compulsory exploitation rights in Community Plant Variety Rights one regulated in Article 29 of Regulation 2100/94, Article 41(1)(a) of Regulation 874/2009 in implementing rules for the application of Regulation 2100/94 mentions the protection of life or the health of humans, animals or plants as aspect which might establish public interest. Obviously, for the grant of a compulsory exploitation right the term “public interest” is of essential importance. It requires that due to market circumstances such as malnutrition or the need to use a substance produced by a protected plant for the production of pharmaceuticals, including phyto-pharmaceuticals, may found a public interest, albeit only in very exceptional cases. If the holder of the right supplies the market himself or through one or more licensees, the basis for a compulsory license, in all probability, will not be given (for further reference see Würtenberger/van der Kooij/Kiewiet/Ekvad “European Union Plant Variety Protection”, 2nd edition 2015, chapter 6 at 6.137 et seq.).
Whether there is a public interest that a black current variety will be used by a food processor in a market environment which is neither showing signs of malnutrition nor lack of nutritional foods remains to be seen. The compulsory licenses have to be regarded as the ultima ratio to allow use of protected property by third parties in order to do a way with situations which represent national emergencies or similar situations. While the Community Plant Variety Right system is an antonymous system, Article 31 TRIPs may help to interpret that such a situation will justify a grant of a compulsory license.