For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Friday, 14 January 2011

Are you a budding plant varieties lawyer? If so, read on ...

Lacking opposable thumbs, Kitty always
had trouble with her flower-arrangements
Don't mock plants. They are just as profitable as other intellectual property subject-matter if you can deploy your skills correctly, and they can be exciting to litigate too. Once they're in the ground, they don't move around very much -- but plant varieties (PV) lawyers travel quite a bit; sometimes they even get to visit Luxembourg once in a while when they take PV disputes to the European Union's highest court.

A lovely bunch of lawyers, a sweet-scented bouquet of advocates no doubt, will soon be there to argue the merits of Case C-509/10 Josef Geistbeck and Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH, a reference for a preliminary ruling from the German Bundesgerichtshof. So what is it that the Bundesgerichtshof, the veritable flower of German judiciary, seeks from the Court of Justice? The reference reads like this:
"The following questions on the interpretation of Council Regulation ... 2100/94 ... on Community plant variety rights ... and of Commission Regulation ... 1768/95 ... implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation ... 2100/94 on Community plant variety rights ... are referred to the Court of Justice of the European Union ... 
(a) Must the reasonable compensation which a farmer must pay to the holder of a Community plant variety right in accordance with Article 94(1) of the CPVR Regulation because he has used propagating material of a protected variety obtained through planting and has not fulfilled the obligations laid down in Article 14(3) of the CPVR Regulation and Article 8 of the Community Planting Regulation, be calculated on the basis of the average amount of the fee charged for the licensed production of a corresponding quantity of propagating material of protected varieties of the plant species concerned in the same area, or must the (lower) remuneration which would be payable in the event of authorised planting under the fourth indent of Article 14(3) of the CPVR Regulation and Article 5 of the Community Planting Regulation be taken as a basis for the calculation instead? 
(b) In the event that only the remuneration for authorised planting must be taken as a basis for the calculation: in the circumstances described above, may the holder, in the event of a single intentional or negligent infringement, calculate the damage for which he must be compensated in accordance with Article 94(2) of the CPVR Regulation as a lump sum based on the fee for the grant of a licence for the production of propagating material? 
(c) Is it permitted or even required, when assessing the reasonable compensation due under Article 94(1) of the CPVR Regulation or the further compensation due under Article 94(2) of the CPVR Regulation, for the special monitoring costs of an organisation which protects the rights of numerous holders to be taken into account in such a way that double the compensation usually agreed, or double the remuneration due under the fourth indent of Article 14(3) of the CPVR Regulation, is awarded?"
The IPKat can't wait to find out the answers though, like all cats, the concept of losing sleep over them (or indeed anything else) is alien to his personal experience.  Merpel says, is "propagation" the fusion of the words "proper" and "litigation"?

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