General Court decision doesn't fall far from the Board of Appeal's tree on validity of apple plant variety rights
Jocelyn Bosse
General Court decision doesn't fall far from the Board of Appeal's tree on validity of apple plant variety rights
Jocelyn Bosse Friday, September 26, 2025 - Apples, Community plant variety office, Jocelyn Bosse, plant varieties, plant variety rights
The owners of the plant variety rights (PVRs) for 'Cripps Pink' and 'Cripps Red' might be as flushed as their apples at the moment, following this week's decision from the EU General Court which confirmed that the latest challenge to the validity of the PVRs must go ahead.
By its decision in Case T‑159/24, the General Court rejected every point of appeal that was put forward by the Western Australian Agriculture Authority (WAAA) and the Community Plant Variety Office (CPVO). Instead, the Court agreed with the CPVO Board of Appeal that the new evidence presented by Teak Enterprises Pty Ltd was sufficient to raise serious doubts about novelty. The CPVO will now have to open nullity proceedings to assess whether the PVRs ought to be declared null and void.
Image by Raissa Meres Rah Meres via Pixabay
Background
The case concerns two apple varieties: 'Cripps Pink' and 'Cripps Red'. The former is more famously known as the Pink Lady® apple, while the latter is marketed as Sundowner®. [Merpel: If you need a primer on the naming and branding of plants, see here]. Both varieties got their name from the breeder, John Cripps, who developed the varieties while working at the Western Australia Department of Agriculture and Food. The varieties were a cross between the 'Golden Delicious' and 'Lady Williams' varieties, made in 1973. In those days, Australia did not have a plant variety rights system, but WAAA eventually sought PVRs in other jurisdictions. Importantly for this case, Community PVRs were granted by the CPVO for 'Cripps Pink' in 1997 and for 'Cripps Red' in 1998.
The IP rights surrounding Pink Lady® are managed internationally through various licence agreements. Apple and Pear Australia Limited (APAL) manages the rights in most of the world, while Pink Lady America LLC is the holder of the exclusive licence for the Pink Lady® trade mark in the United States and Mexico. The companies have occasionally had disputes over the rights in other jurisdictions, such as a contract dispute in Australia that was largely resolved in 2016.
Pink Lady America LLC brought a challenge to the validity of the 'Cripps Pink' PVR in 2014, on the grounds of novelty. This was ultimately rejected by the General Court in late 2019 (Case T-112/18, discussed by Katfriend Titilayo Adebola here). This decision will come up again shortly.
Not long after that decision, an Australian company lodged another application for nullity, this time against both 'Cripps Pink' and 'Cripps Red'. Teak Enterprises Pty Ltd owns the PVR for a variety known as 'Barnsby' or 'PLBAR B1', which is a mutation of 'Cripps Pink'. WAAA successfully had this declared an essentially derived variety in 2020, which means that 'Barnsby' cannot be commercialised without the authorisation of the owners of 'Cripps Pink'. [Merpel: readers may recall that there's another dispute about essentially derived varieties before the UK courts at the moment]. In May 2021, the CPVO rejected the application to open nullity proceedings. But at the start of 2024, the CPVO Board of Appeal overturned the CPVO decision and ordered that the nullity proceedings go ahead (A019/2021 & A020/2021).
Like the EUIPO, the CPVO is not obliged to defend the decisions of its Board of Appeal. On that basis, when WAAA appealed, the CPVO supported its arguments before the General Court and sought to have the Board of Appeal (BoA) decision annulled.
Novelty for Plants
While this appeal focuses on the procedural hurdles for opening nullity proceedings, the foundational issue in this dispute is novelty. The novelty requirement for PVRs is quite different from patents (see here). Plant variety rights are assessed for "commercial novelty", as opposed to the "absolute novelty" required for patents.
Under Regulation (EC) No 2100/94 on Community Plant Variety Rights (known as the "Basic Regulation"), commercial novelty is defined in Article 10, in terms that mirror the UPOV Convention. "A variety shall be deemed to be new if, at the date of application ... , variety constituents or harvested material of the variety have not been sold or otherwise disposed of to others, by or with the consent of the breeder ... for purposes of exploitation of the variety: (a) earlier than one year before the [priority] date, within the territory of the Community; (b) earlier than four years or, in the case of trees or of vines, earlier than six years before the said date, outside the territory of the Community."
In this case, since apples grow on trees, the grace period for sales or disposal of the varieties in Australia was six years before the filing date. For both varieties, this put the novelty bar date at 29 August 1989.
The General Court Decision
WAAA and the CPVO raised various concerns about the burden of proof and the principles of legal certainty and of legitimate expectations. In the hopes of making it easier to navigate the issues, this Kat will address the findings in a different order from the judgment.
Legal certainty and legitimate expectations
As mentioned, the General Court previously had the opportunity to consider the validity of the 'Cripps Pink' variety in Case T-112/18. Based on the evidence presented at the time, the Court confirmed that the earlier disposals of the variety were for experimental purposes and these commercial evaluation trials did not amount to "commercial exploitation" that would affect novelty.
The question in the current dispute was whether the CPVO was bound to comply with that earlier 'Cripps Pink' decision. The General Court said "no". For one thing, the new applications concerned the validity of an additional variety ('Cripps Red'), not just 'Cripps Pink'. The CPVO also needed to consider the extent to which the facts and evidence in the new applications differed from those in the earlier proceedings. This included weighing the new declarations from persons who were not associated with Teak Enterprises (as opposed to those who provided declarations in the earlier case, who were associated with Pink Lady America). Finally, the new evidence focused on different instances of sale or disposal of the variety, and these disposals did not come with any of the restrictions (i.e., qualifications that the material could only be used for trials and evaluations) that were critical to the earlier decision.
The CPVO argued that this finding would open up the possibility of endless challenges to the same PVR, since the BoA "has put no limit on the repetition of nullity proceedings and thus breaches the principles of good administration, legal certainty and legitimate expectations." However, as discussed below, a person cannot challenge the validity of a PVR willy-nilly. The General Court emphasised that an applicant for nullity must provide evidence that raises "serious doubts" about the validity of the PVR - they cannot repeatedly challenge earlier decisions without good reason.
Evaluating the evidence
In assessing an application for nullity, the rules for CPVO proceedings establish a two-tier test:
- First, the CPVO is required to analyse the facts and evidence provided by the applicant for a declaration of nullity in order to ascertain whether or not they raise serious doubts as regards the validity of the contested PVR.
- Second, if that threshold is met, the CPVO may open nullity proceedings, which involves more intense review of the evidence.
The case focuses on the first stage, but the CPVO argued that the BoA had muddled the two stages. The General Court disagreed and later added that some of these concerns were "based on a misreading of the contested decision." The BoA had distinguished the two stages and appropriately considered whether the new evidence was, on its own and taken in isolation from other evidence, sufficient to raise serious doubts regarding the validity of the titles. Indeed, the BoA found that the CPVO - in its original decision - had not analysed the new evidence with the impartiality and care required.
In this context, the CPVO argued that the BoA had stayed into stage two by making observations on the meaning of consent (in assessing whether the sale or disposal was "with the consent of the breeder"). However, the Court noted that in order to answer the question about whether the new evidence raised serious doubts, "it is essential to define the circumstances which are capable of destroying novelty... [including] whether implicit consent could constitute consent." The BoA had not strayed into an analysis on the merits by reviewing the legal interpretation of these terms.
Burden of proof
The CPVO and WAAA argued that aspects of the BoA decision seemed to reverse the burden of proof at the first stage: the burden is on the applicant for a declaration of nullity (in this case, Teak Enterprises) to adduce clear and concrete evidence capable of raising serious doubts. The CPVO focused on a comment from the BoA saying "it had not received sufficient or relevant evidence [from WAAA] to raise valid doubts, or call into question, the accuracy of [new] declaration [from an apple grower]."
The Court determined that this was a misunderstanding. The comment was made in the context of an argument about implicit consent: WAAA raised the issue that its officers would not have the power to consent to the disposal of the variety for the purposes of commercial exploitation. Therefore, the BoA merely took account of their arguments while assessing the evidence from the declaration; this was not a reversal of the burden of proof.
Interpreting and applying the novelty provisions
In applying the definition of novelty from the Basic Regulation, WAAA and the CPVO argued that the BoA had not considered that the sale or disposal must be for the "purposes of exploitation," meaning a commercial purpose. However, the General Court found that, in its assessment of the evidence, the BoA did take into account the commercial nature of the exploitation. For instance, the BoA cited various declarations that indicated the disposals had been made with no formal restriction on further planting and commercialisation.
Next, the Court returned to the topic of consent and affirmed that implicit consent could be the basis for "serious doubts" about novelty. In this context, the BoA was correct to consider the circumstances of the sales or disposals identified by the new evidence. In particular, the BoA had appropriately weighed the fact that WAAA had never sought to nor envisaged taking out any patent or other IP protection in Australia: the varieties seemed to be distributed to growers without any restriction, since WAAA was more concerned about benefitting the Australian apple industry.
Finally, the General Court dismissed the claim that the BoA made an incorrect assessment of the facts. Indeed, the CPVO seemed to disregard the important context of certain statements from the new evidence in order to suggest that there were restrictions on the disposals. The BoA had given due regard to the commercial context of the disposals and of the scale of distribution, and found no evidence that these disposals were for "testing purposes" only.
Therefore, the appeal was dismissed.
Final Thoughts
With this decision, the matter is now remitted to the CPVO for full evaluation. It is not clear how long the nullity proceedings will take. 'Cripps Pink' and 'Cripps Red' varieties have already enjoyed the majority of their 30 years of protection in the EU and will be due to expire in the next 2-3 years anyway. This Kat finds it hard to imagine how all the parties would navigate the practical consequences if the CPVO determines that the PVRs lacked novelty this whole time.
In the mean time, we now have the benefit of further clarification about the procedural hurdles for an application for nullity of a PVR, as well as substantive discussion of the novelty requirement and the relevance of implicit consent.
DO YOU WANT TO REUSE THE IPKAT CONTENT? PLEASE REFER TO OUR 'POLICIES' SECTION. IF YOU HAVE ANY QUERIES OR REQUESTS FOR PERMISSION, PLEASE GET IN TOUCH WITH THE IPKAT TEAM.
https://ipkitten.blogspot.com/2025/09/general-court-decision-doesnt-fall-far.html