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Tuesday, 3 July 2007

Mandarins on appeal

Tomorrow (Wednesday 4 July) the Second Chamber of the Court of First Instance of the European Communities hears a rare appeal concerning Community plant variety rights (CPVRs) in Case T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana v OCVV - Nador Cott Protection (Nadorcott). According to the Curia website, the Federación is seeking a declaration that the Community Plant Varieties Office Board of Appeal decision, declaring its appeal inadmissible, be annulled.

The dispute goes like this, in relevant part:

"1. The breeder is Mr El Bachir Nadori, a Moroccan national who also acquired French nationality in 1997.

In 1982 in Morocco Mr Nadori observed a variety of mandarine growing among “Murcott” mandarine trees planted in 1964. That variety, code-named “Inra W” is believed to be the result of a chance cross-pollination between the “Murcott” mandarine and an unknown parent. From 1983 to 1985, further experiments were carried out to test the fruit of “Inra W”, but, due to the high amount of seeds, the fruit did not seem commercially interesting and the project was abandoned.

...

In 1988 Mr Nadori observed, on five-year old trees of “Inra W” that had been planted under the name “Murcott Sasma”, that the fruits could be grown without seeds if the trees were isolated so that cross pollination could not occur. Those trees were renamed “Afourer”. That name comes from the town of Afourer in Morocco, where the variety was developed. In 1989, Mr Nadori confirmed the result by artificially isolating trees. In 1990 to 1991, Mr Nadori planted more experimental plants in a different region of Morocco to confirm the possibility of producing seedless fruits.

This experiment proved successful. Two other experimental plantations were carried out in 1991 and 1992. The variety was renamed “Nadorcott”. The name Nadorcott is composed in part from the name of the parent plant (Murcott) and in part from the name of the breeder (Nadori).

Left: Nadorcott mandarines

SARL Nador Cott Protection affirms that the first sale of the contested variety took place in France in 1994. This sale concerned fruit grown in the fields planted in 1990 to 1991 in Morocco. The fruit left Morocco on 22 January 1994 and was sent to France. ...

On 22 August 1995, Mr Nadori assigned the Nadorcott variety to Mr Jean de Maistre. On the same day as the assignment ..., Mr de Maistre filed an application for the grant of a Community plant variety right (CPVR) citing Mr de Maistre as applicant and Mr Nadori as breeder.

The application was registered by the CPVO under No 1995/0726. On 26 February 1996 the application was published in the bulletin of the CPVO.

On 21 March 1997, Mr de Maistre assigned the Nadorcott variety to the French company SARL Nador Cott Protection .... Mr de Maistre informed the CPVO of that assignment.

...

On 28 January 1997, an application was filed for a United States patent on the Nadorcott variety. The United States patent was granted on 7 July 1998. The patent number was “Plant 10,480”. El Bachir Nadori was stated as the inventor and Jean de Maistre as the assignee. The background and reproduction of the new variety are set out in detail in the first part of the United States patent.

...

On 13 January 2004, SARL Nador Cott Protection gave a power of attorney to the group Gestion de Licencias Vegetales Geslive (hereafter, Geslive) to exercise all its rights in the Nadorcott variety in Portugal. The parties appear to admit that Geslive has similar powers in Spain.

...

On 4 October 2004, the CPVO granted a CPVR for the Nadorcott variety to SARL Nador Cott Protection (decision No 14111). On 15 December 2004, that decision was published in the bulletin of the CPVO.

2. By a notice of appeal dated 11 February 2005, and received by the CPVO on the same date, 11 February 2005, the Federación de Cooperativas Agrarias de la Comunidad Valenciana (FECOAV) appealed against decision No 14111 ....

FECOAV put forward two grounds in support of its appeal, and each of these grounds has two branches. The first ground is that the CPVR granted for the Nadorcott variety is invalid (1) for lack of distinctive character and (2) for lack of novelty. By its second ground, FECOAV alleges (1) that the assignments of Mr Nadori’s rights in the Nadorcott variety to Mr de Maistre and then by Mr de Maistre to SARL Nador Cott Protection are void, and (2) that even if those assignments were valid, they would constitute an abuse of rights and would therefore be contrary to Community law.

Nador Cott Protection and the CPVO contest all of those grounds and argue that the appeal is unfounded. As a prior point, however, both of them submit that the appeal by FECOAV is inadmissible.

FECOAV states that it is a federation of unions of cooperatives in the Spanish provinces of Alicante, Castellón and Valencia, which in turn comprise local farming cooperatives in those three provinces. FECOAV states that it was founded on 21 February 1986 and is registed in the register of cooperatives of the Directorate General of Labour in the Ministry of Finance, Economy and Employment of the Autonomous Government of Valencia.

FECOAV argues that its appeal is admissible because the contested decision is of direct and individual concern to FECOAV within the meaning of Article 68 of Council Regulation ... 2100/94 of 27 July 1994 on Community plant variety rights ... in two respects. Firstly, because the grant of the CPVR in question would hamper FECOAV if it were to seek to supply material of the Nadorcott variety to its members for exploitation by them. Secondly, because FECOAV represents the interests of Spanish growers. FECOAV asserts that its cooperative members who sell products whose price is affected by having to pay royalties to the holder of the CPVR or who may even be prevented by him from growing the protected variety, are directly and individually concerned by the contested decision.

At the hearing on 8 November 2005, FECOAV also argued that under Article 49 of Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the CPVO (hereafter the Proceedings Regulation, or P.R.), the Board of Appeal should have invited FECOAV before the hearing to lodge documents establishing that FECOAV’s members were directly and individually
concerned by the contested decision. At the hearing on 8 November 2005, the representative of FECOAV asked to be allowed time to return to Spain to assemble and produce complete documentation to that effect, or at least to be allowed to produce at the hearing the incomplete documentation to that effect which its representatives had with them at the hearing. Such documentation was stated to include contracts between Geslive and at least one co-operative affiliated to FECOAV agreeing to make royalty payments for cultivating the Nadorcott variety,
and documents by growers empowering FECOAV to bring an appeal on their behalf.

FECOAV claims that
1. the contested decision should be annulled,
2. that FECOAV should be allowed to produce documents to show that it is directly and individually concerned by that decision".

The Board of Appeal rejected FECOAV’s request to produce documents, concluding that that body was a representative body that did not grow or deal in fruit itself and was not therefore a directly interested party. The IPKat is curious to discover what happens next, even though the ruling may be some months away. Merpel is curious to know why Curia adopted the spelling 'mandarine' when the more common English spelling is 'mandarin'. Is there a subtle difference, one being an adjective and the other a noun? Is this something that is well known to plant variety specialists but not to consumers? We should be told.


Grow your own mandarins here; mandarin recipes here
Speak mandarin here
Community Plant Variety Office here
Neat notes on plant varieties protection from NIPC here

1 comment:

Anonymous said...

This bit of the Curia site is French. 'Mandarine' is the French (noun)equivalent of 'mandarin' in English. Curiously, it is not the Spanish equivalent ('mandarina')although Spanish is the language of the case. Suspect the report was written by a fluent English writer whose mother tongue is French.

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