In the judgement in the Case T 112/18 (here) the Court rejected an isolated consideration of the evidence provided by the Applicant which, as the Board of Appeal had stated in the contested decision,
“admittedly does not make it possible to conclude, (…) , that the variety at issue had been released solely for testing purposes. However, when taken as a whole, the conclusion directs to a different understanding.”
Further guidance as to which activities regarding material of new plant breeding results may be viewed as destroying novelty may be taken from the “PINOVA” decision (Case T 765/17 (not published)) .
The Applicant applied for a declaration of the subject CPVR as null and void due to lack of novelty and provided evidence in the form of the CPVR holder’s information in one of its promotion materials about the commercialization of the variety outside the novelty period and reports in a nationwide newspaper. The Court regarded this not as sufficient evidence that material of the candidate variety was available on the market. In the Court’s view, it would have been necessary to provide evidence in the form of debit notes, delivery notes, sales figures, prospects, adverts, or other material to prove that material of the candidate variety has been generally disposed of. From that case law the conclusion may be drawn that evidence must be submitted which leaves no doubt that the variety has been commercialized. Even if there is evidence in the form of press releases, reports in journals and magazines relevant for the plant industry which indicates that the variety is available on the market, such material is not sufficient as the CPVO may require the Applicant to submit evidence of real commercial transactions regarding the variety at issue.
Published on May 15, 2021