Plectranthus ornatus withers in Luxembourg

Possibly overshadowed by the ruling in the Salvador Dali case (noted here by the IPKat), Case C‑38/09 P, Ralf Schräder v Community Plant Variety Office (CPVO) is an altogether less publicly visible event -- an appeal to the European Union's highest Court against the General Court's dismissal of an appeal from the CPVO. The IPKat has been assiduously following this dispute: see "Just Another Plectranthus, says the CFI", "A Lion Roars ... a Kat Laughs" and "Don't Dig Up Technical Assessments, Warns AG").

Right: Plectranthus ornatus -- very cute, but it never stood up in court

In short, Schräder applied to the CVPO for a Community plant variety right under Council Regulation 2100/94 on Community plant variety rights. The candidate variety, SUMCOL 01, was originally thought to be a Coleus but it was later agreed that it was a Plectranthus. The CPVO asked the Bundessortenamt (the German Federal Plant Variety Office) to conduct a technical examination, which it did, finding that SUMCOL 01 was not distinct from Plectranthus ornatus but that the examination had to be retaken. The examiner responsible for the technical examination then asked the curator of the Kirstenbosch Botanical Gardens in South Africa to provide cuttings or seeds to use as reference varieties against which SUMCOL 01 could be examined. The curator replied that the species to which SUMCOL 01 belonged was commonly grown in South Africa and that he knew that species very well. The final report of the Bundessortenamt concluded that SUMCOL 01 was not distinguishable from the reference variety sent from Kirstenbosch.

In the light of this, the CPVO rejected Schräder's application for lack of distinctiveness. Schräder appealed to the CPVO Board of Appeal. There followed further investigations and even a visit by one of its members to South Africa, for which the CPVO sought to charge Schräder an advance of 6,000 euro. Schräder refused to pay, arguing that he had not sought the field trip to South Africa and challenging the evidential basis of the Board's decision. The Board of Appeal ultimately dismissed Schräder's appeal against rejection of his application, determining that SUMCOL 01 could not be clearly distinguished from Plectranthus ornatus. Schräder then lodged an application at the Court of First Instance, seeking to annul the Board's decision. The Court dismissed this application and Schräder appealed to the Court of Justice.

Schräder put forward two pleas in support of his appeal: (i) procedural defects, (ii) infringement of Community law. The CPVO argued that the appeal was inadmissible on the ground that it dealt only with matters of fact and assessments of evidence and/or that each of the pleas should be rejected and the appeal should therefore be dismissed.

The Court of Justice this morning dismissed Schräder's appeal, ordering him to pay costs. Of the many grounds on which the appeal was based, only two were ruled to be inadmissible but the rest were admitted and then dismissed on their merits. On the issue of inadmissibility the Court had this to say (at para. 73):

"By seeking to demonstrate that the General Court could not reasonably conclude that the facts and circumstances referred to above were not sufficient to refute the conclusion drawn by the Bundessortenamt and confirmed by the Board of Appeal, Mr Schräder, although formally pleading an error of law, is essentially calling into question the factual assessments carried out by the General Court and, in particular, disputing the probative value it attached to those facts".

Challenges to factual assessments are not the province of a legal appeal to the Court of Justice.

Says the IPKat, this ruling doesn't just bring to an end an unpleasant dispute which has dragged on for many years; it also provides the CPVO with the assurance that its judgment was correct as to the manner in which it discharges its functions under the regulatory regime through which it operates. Adds Merpel, dressing challenges to factual assessments up as though they are points of law is one of the great skills of the lawyer. The fact is that lawyers get away with it relatively infrequently -- but probably just about often enough to make them feel it's worth trying.

Plant varieties: a good place to start here

How to tell plants apart: an expert writes here

The IPKat's favourite plant varieties here