Regarding the CPVR system and in order to allow the CPVO to assess in the technical examination whether the candidate variety fulfills the DUS requirements through a side-by-side comparison of plants of the candidate variety with plants of the comparison varieties, the Office requires – in light of the description of the candidate variety in the technical description – that the applicant has to submit sample material of the candidate variety. The S2/S3 Publication (see here) provides applicants with a consolidated version of the submission dates and requirements for plant material per species and information on the examination offices which are currently entrusted to carry out the DUS technical examination on behalf of the CPVO. The content of the publication is updated on a daily basis.
Once the Office has found that a correct application has been filed, the applicant is requested to submit plant material specified in an official communication within a term set. This term is in compliance with the dates for the submission of sample material as published in the S2/S3 Publication. If the deadline for submission of sample plant material is not met, this in principle may lead to a rejection of the application. The reason for such strict policy is outlined in the Board of Appeal’s Probril decision (Case A 003/2003 of 4 June 2004):
“… it is the material existing at the date of application, which has to be tested. To avoid misuse of further breeding activities on the candidate variety to get an earlier application date than would be appropriate, a resubmission can be admitted only under exceptional circumstances, which do not result from any failure by the appellant.”
Regulation 2100/94 (here), however, establishes a scope of discretion for the Office as far as submission of further plant material is concerned. An example of circumstances justifying the submission of further material can be taken from a judgement of the Court of the European Union in the case C-534/10 P – Brookfield New Zealand Ltd. and Elaris SNC vs. Community Plant Variety Office and Schniga GmbH (see here WÜRTENBERGER, G. Judgement Review- Decision of the CJEU- C-534/10 P – Brookfield New Zealand Ltd. and Elaris SNC vs. Community Plant Variety Office and Schniga GmbH).
Published on June 28, 2021