Of propagation and prerogatives: IP litigation goes to seed

Cats have generally been more interested
in plants than plants are in cats ...

Today Advocate General Jaaskinen delivered his Opinion in a rare Community plant variety case, Case C‑56/11 Raiffeisen Waren-Zentrale Rhein-Main eG v Saatgut-Treuhandverwaltungs GmbH. Raiffeisen, a farming cooperative, offers farmers seed processing services by which it conditions harvested material for storage and future planting. It offers these services to (i) the holders of plant variety rights, represented inter alia by STV, an association of holders of plant variety rights which, under planting contracts, have arranged for certified seeds to be propagated for marketing, an to (ii) farmers who plant seeds in accordance with the farmers’ privilege established in Article 14(3) of the Plant Varieties Right Regulation. Raiffeisen carried out processing operations for various farmers for the marketing years 2005/2006 and 2006/2007, in connection with the growing of crops under contract for the holders of plant variety rights represented by STV.

After it had received statements relating to the growing of crops under contract from the farmers, STV sent two series of requests for information to Raiffeisen concerning the processing operations it carried out. Some of those requests were presented after the end of the marketing year concerned. Raiffeisen did not reply favourably to those requests, relying on three series of grounds for its refusal.

• the request for information should contain the indications that it carried out processing operations subject to the obligation to provide information laid down in the sixth indent of Article 14(3) of the basic regulation.
• Secondly, only a request for information made in the marketing year to which the information relates was relevant in law.
• Thirdly, no indication of possible planting of seeds can be derived at all from processing operations which have taken place in connection with the growing of crops under contract for the holder.

STV brought an action against Raiffeisen for a response to their requests for information. The court at first instance granted STV’s application relating to information, saying that there was no limitation period for making requests for information, and that the statements of planting under contract constituted sufficient indications establishing the supplier’s obligation to provide information, since a farmer who plants under a propagation contract has a specific possibility of planting the product of the harvest. Raiffeisen appealed to the Oberlandesgericht Düsseldorf, which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the obligation of the supplier of processing services to provide information laid down in the sixth indent of Article 14(3) of [the basic regulation] and Article 9(2) and (3) of [the implementing regulation] become established only if the request for information from the holder of the variety right is received by the supplier of processing services before the expiry of the marketing year (or the most recent marketing year where there are several) concerned by the request?  

(2) If Question 1 is answered in the affirmative: Is there a request for information “complying with the time-limit” where the holder claims in his request that he has some indication that the supplier of processing services has processed or intends to process for planting harvested material of the protected variety which the farmer named in the request has obtained by planting from propagating material of the protected variety, or must the supplier of the processing services also be furnished with evidence of the claimed indication in the request for information (for example, by providing a copy of the farmer’s statements of planting the product of the harvest)?  

(3) Can indications establishing the obligation of the supplier of processing services to provide information be derived from the fact that the supplier of processing services, as the agent of the holder of the plant variety right, performs a propagation contract for the production of consumption-related seed of the protected variety, which the holder of the plant variety right has concluded with the farmer effecting propagation, where and because the farmer is in fact granted the possibility, in performing the propagation contract, of using some of the propagation seed for planting?’ 

Today the Advocate General advised the Court to rule as follows:

"1. The obligation of the supplier of processing services to provide information under the sixth indent of Article 14(3) of Council Regulation ... 2100/94 ... Community plant variety rights, and Article 9(2) and (3) of Commission Regulation ... 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation No 2100/94 becomes established provided that the request for information presented by the holder is received by the supplier of processing services before the expiry of the marketing year (or the most recent marketing year where there are several) concerned by the request. Nevertheless, if it is the ‘first of such requests’ within the meaning of the second part of Article 9(3) of Regulation No 1768/95, such a request must be presented during the current marketing year.

2. It is not necessary for a request for information, presented in accordance with the second part of Article 9(3) of Regulation No 1768/95, to be accompanied by evidence of the existence of the indications referred to in the request for information. Accordingly, it is sufficient for the holder to state in his request that he has some indication that the supplier of processing services has processed or intends to process for planting harvested material which a given farmer has obtained by planting propagating material of the protected variety.

3. It is for the national court to assess the facts of the case before it taking account of all the circumstances of the case in order to determine whether there are indications that the supplier of processing services has carried out, or intends to carry out, such operations".

After reading the AG's
Opinion, this is a
typical feline response

This Kat is insufficiently attuned to the subtleties of plant variety protection to be able to appreciate why something as apparently innocuous as a request for information should be (i) regulated in such detail in the first place and (ii) the subject of what is obviously quite unpleasant and sustained litigation between two apparently laudable and responsible parties.  The European Commission is fond of reminding IP owners of the paramount nature of competition in a single market which is not hampered by artificial divisions and market practices, and of the importance of restricting the flow of counterfeit and infringing goods into and then within Europe. This dispute however appears to focus on an aspect of the law that has little or nothing to do with these aims: access to information, something which the European Commission generally regards in a positive light.  Can anyone please explain to readers of this weblog what this is all about?

Merpel is quite in agreement with the Kat today.  Perhaps, she speculates, plant variety law needs a little judicious and legislative pruning ...