Regarding the CPVR system the conditions to be fulfilled in order to establish a date for an effective application are defined in Article 50 of Regulation No 2100/94 (here).
Once the application has been filed and all requirements according to Art. 50 are fulfilled, the Office sends an acknowledgement of receipt (R-Form) to the applicant or to the procedural representative giving the date and the file number of the application. Considering that the CPVO may ask the applicant for provision of further information not defined in Article 50 but specified in Article 19 of Regulation EC No 1239/95 (here), it is highly recommended to read the R-Form carefully, as additional information may be required in the document, even though an application date has been allocated. The failure to submit the required information within the time limit specified by the Office is one of the grounds for refusal of an application for a Community Plant Variety Right.
According to Article 51 of Regulation No 2100/94 (here) the date of application for a Community plant variety right shall be the date on which a valid application was received by the Office, provided it complies with Article 50 (1) and subject to payment of the fees due pursuant to Article 83.
The application date is relevant in relation to other breeders’ activities and the risk involved in such activities, namely that an application by a third party is filed for a new variety with regard to which the candidate variety is not sufficiently distinct. Regardless of whether material of a variety already has been put on the market or, for the time being, only is the subject of an application for grant of a plant variety right, such variety will be considered as known at the date of application of the subsequent candidate variety . This means that any other new variety of the same species with a better priority will be regarded as a known variety in the examination of the candidate veriety; in return this however also means that, in respect to a new variety which has been applied for protection at a later date, the candidate variety will be regarded as currently known in the sense of the distinctness criteria. Thus, if an application is filed which is incomplete in certain elements, it does not establish an application date which may have a negative impact on the scope of the earlier rights having to be considered in the examination process as “known” earlier rights.
In such cases the Office issues and sends to the applicant or its representative a ‘No-Form’ indicating that the application is not valid, specifying all missing information and informing the applicant that an application date will only be allocated when all deficiencies are remedied within one month from the date of issuance of the same.
If the notified deficiencies are not remedied within the time limit set by the CPVO, the Office once again will request the applicant to provide the missing information. If no response of the applicant is received within the time limit, the Office will ask the applicant to confirm in writing that he is abandoning the application, leading to a rejection of the application if either he still does not respond or does not submit the missing information.
Published on June 28, 2021