Plant Breeders' Rights infringement case: Supreme Court of the Netherlands

On November 13th, 2015, the Supreme Court of the Netherlands ruled in favor of AIB (Anti Infringement Bureau) in a case of infringement of Plant Breeders' Rights (PBRs) by the company Novisem company. The Supreme Court set aside earlier order and sentenced the company Novisem to pay the court costs.  

Background of the case:

AIB is petitioner and Novisem is respondent in alleged infringement case. Novisem Company is engaged in development, production and sale of seeds of celery, chicory, gardening and pole beans. AIB represents major companies in the vegetable seed industry, has brought an infringement case against Novisem Company. This infringement case is related to three celery varieties known as Diamond, Brilliant, and Prinz.   It is to note here that the PBRs to all these three varieties are owned by two of AIB’s member companies, Nunhems B.V. and Bejo Zaden B.V.

Sequence of Actions:

1. An infringement cases filed and AIB requested the seizure for Novisem’s alleged infringement on Dutch Plant Variety Rights. On 18 March 2013 a seizure of evidence was carried out at the Novisem in Baarlo, the Netherlands, after court approval.

2. On 25^th  April 2013, the Court issued its judgment in summary proceeding initiated against Novisem by AIB on behalf of Nunhems and Bejo. Court found no basis for plant variety rights infringement by Novisem and   rejected all of AIBs claims.  AIB contended, among other things, that the seizure showed that Novisem was unlawfully reproducing plants of the protected varieties for sale. Novisem defended that it was availing itself of the “breeder’s exemption” to plant variety protection, which permits a breeder to use protected varieties as the sources of initial variations to create new varieties of plants. AIB argued, however, that Novisem possessed significantly more plant material than was required for breeding purposes. Novisem presented to the court statements by its breeders, which contradicted AIB’s assertions. On this point and others, the court agreed with Novisem. The court ordered AIB to return to Novisem all of plant samples and copies of data seized from Novisem, and to pay Novisem €15,575, representing Novisem’s costs and counterclaim damages. The court also directed AIB to place a correction on its website.

3. AIB approached challenged this order in Supreme Court. On Nov 2015, Supreme Court did not favored Navisem in its decision and set aside earlier order by a court. Supreme Court ordered in favor of AIB and sentenced the company Novisem to pay the court costs.

Author's View: 

We don’t have more information related to submissions by the Petitioner and Respondent to express our views on the decision of Supreme Court. But, it may not be appropriate to express that it is almost clear that that Noveisem (respondent) have used provision(s) such as “Breeder’s Exemptions” to defend its position from alleged infringement charges.  Whereas, AIB (Petitioner) have submitted that that use by Novisem is beyond exemption’s purview and it clearly amounts to infringement.

Note: Sources of the above post are AIB’s post and blog post which are provided as link to this post.