§ 6 Abs. 1 SortG must be interpreted as the absence of a uniform system over a shorter period within the European Union there, that a variety is considered as new, when plants or parts of plants of the cultivar with the consent of the claimant or his predecessor before partial order day or only within a period of one year at home country or of four years (in vine and tree species six years) have been cast abroad for commercial purposes to other.
DECISION BGH X ZB 18/12 from 13. January 2014 for grant of variety protection for the forest vine “Fond Memories”
SortG § 6 Abs. 1
BGH, Decision of 13. January 2014 – X ZB 18/12 – Federal Patent Court – 2 –
Der X. Civil Division of the Federal Court on 13. January 2014 Presiding Justice Prof. Dr. Meier-Beck, the judges Dr. Bacher, Hoff-mann, Dr. Dike foot and the judge Dr. Kober Dehm
decided:
On the appeal of the applicant of the decision is the 36. Senate (Complaint Senate for plant variety protection matters) the Federal Patent Court of 6. September 2012 canceled. The matter is remanded for a new decision to the Federal Patent Court. – 3 –
Reasons:
A. The applicant has the 23. April 2008 Application for plant variety protection for the forest vine Clematis florida called “Fond Memories” ge-sets. Here she has given, that the propagating or harvested material of the variety for the first time on 1. June 2004 had been made in the UK for commercial purposes to other. The Federal Plant Variety Office has the Sortenschutzan contract having regard to § § 1, 6 Abs. 1 No.. 1 SortG rejected on the grounds, the variety was not new, because plants or parts of plants of the cultivar with the consent of the claimant previously released as a year before the application is within the European Union for commercial purposes to other wor-to be. The contradiction of the applicant has the Widerspruchsaus Committee of the Federal Plant Variety Office rejected. The complaint of the applicant Complainant patent court is unsuccessful. In contrast, the body authorized by patent court complaint, the applicant is directed, with which it seeks annulment of the contested decision and remand the case to the Patent Court.
B. The force admission instead of exemplary and in other respects permissible legal complaint is justified.
I. The Patent Court in support of the contested decision (BPatGE 53, 277 = GRUR Int. 2013, 243) running substantially: The rejection of the Plant Variety Protection application is consistent with the applicable rules on the filing date of the Plant Variety Protection Act. According to the information of the appli-cation Complainant plant material of the variety registered well before the one-year grace period is in accordance with § 6 Abs. 1 No.. 1 SortG been used in the UK. You therefore no longer applies as New. The said statutory provision was validly, although it against the international obligation ver-bump, the Germany through the signing and ratification of the International-
1
2
3 – 4 –
tional Convention for the Protection of New Varieties of 2. Dezem-ber 1961 (PflZÜ) and the revision of this Convention had been received.
Not Art. 6 of the 19. March 1991 revised text of the International Convention for the Protection of New Varieties of Plants (BlPMZ 1998, 232 ff., hereinafter: Agreement) stand it the required novelty of a variety in, if the filing date already, with the consent of the breeder or his successor for more than a year in the territory of the State of registration or for more than four years – for slow-growing plants for more than six years – offered for sale in the territory of another State or has been commercialized. With the possibility, or the variety before registering four. six years abroad to ver-drive, should be made for allowing the breeder, the species should first be tested abroad and to register with the Inland later. At this Regelungsgefü-ge had carried since the Convention 1991 possibility of existing, that an intergovernmental organization can join as a member, not changed. This was merely an adaptation of the definitions in Art. 1 the Convention requires, after which, the territory in such a case, the area was to be regarded, in the of that intergovernmental organization constituting treaty application find. Art. 6 Abs. 3 of the Convention provides for the possibility of an equality of acts within the territory of a Member State's actions in the territory of all the Member States and the same intergovernmental organization before just in case, that all member states of this organization acted together.
Against this background corresponds to § 6 Abs. 1 SortG in effect at the time of registration applicable, by the Act Amending the varieties Protection Act of 17. July 1997 introduced version not to be observed by the German legislator in the Convention. Entge-
4
5 – 5 –
gen Art. 6 Abs. 1 this Convention is designed to § 6 Abs. 1 SortG for national registration with respect to the territory no longer on Germany, but on the territory of the European Union from. The determination of lead thus to a deprivation of applicants, the – as in the present case – national protection for a variety in Germany coveted and the variety within a period of four (or. six) Were years in the European Union deliv-ered area. You can not type on. 6 Having regard to the Agreement, nor with a reference to the arrangements in Regulation (EG) No.. 2100/94 vom Rates 27. July 1994 on Community plant variety protection (GemSort-VO, ABl. The 227 from 1. September 1994) be justified. By-illustrated version of § 6 Abs. 1 Germany SortG contrary to its international-legal obligation, to provide as a member state of the International Union for the Protection of New Varieties of Plants a same criteria as in the other Contracting underlying plant variety protection available.
This did not, however, result, dass Art. 6 Abs. 1 the Convention was directly applicable and § 6 Abs. 1 SortG verdränge. Above was not a general rule of international law within the meaning of Art. 25 Abs. 2 GG. The standard will come to no primacy, how he'll accorded with the requirements of the European Union. At this the accession of the European Union to the Convention have not changed. Aus Art. 59 Abs. 2 GG is apparent rather, that the Convention is the schemes of the Plant Variety Protection Act passu.
The contradiction between the international obligation of German-lands and § 6 Abs. 1 SortG'll also not by way of international law-friendly interpretation or application of the general rules Kollisionsre solve. For a corrective interpretation must be given clear word-text of § 6 Abs. 1 SortG and the declared intention of the legislature no room. From the general conflict rules, nothing else follows. It should be
6
7 – 6 –
already doubtful, whether a genuine norm conflict between § 6 SortG und Art. 6 the Convention vorliege, because the latter does not contain any nationally directly on-reversible control, but only obliges the state as a subject of international law. Although the Convention of by the Act Approving 25. March 1998 (Gazette. II 1998, S. 258) entered into force and thus younger than § 6 SortG as amended by the Act Amending the Law of Sortenschutzge 17. July 1997 was, in any event § 6 To see SortG as lex specialis and therefore a priority. The violation of the German legislature to fulfill its international obligations under the Convention is founded only one claim of the other Parties to comply with the implementation of compulsory, however, enable the national court, not an interpretation contrary to the clear wording of the statute. A submission to the Federal Constitutional Court on the type. 100 Abs. 1 GG differs from, as a violation of the Constitution is neither asserted nor seen.
II. This assessment does not withstand the attacks of the appeal at a crucial point.
The Patent Court has rightly used as a basis, that the proposal could have on plant breeders' rights according to the wording of the legal regulation no-tions of success. The plant breeders' rights is in accordance with § 1 Abs. 1 SortG ahead, that the variety is new. That § 6 Abs. 1 No.. 1 SortG only constitutes a Sor-te as New, when plants or plant parts with the approval of loading unauthorized or his predecessor have not been issued or before the date of application only within one year within the European Union for commercial purposes to other. After propagating material or harvested material of the variety already on 1. June 2004 has been delivered in the UK commercial purposes to other, was the sort on the application date in this sense, not new. From the meaning and purpose of the provision, however, there considering the commandment of international law compliant interpretation-
8
9 – 7 –
gung, dass § 6 Abs. 1 No.. 1 SortG is close to understand, seems to pretend than the wording.
1. The version of § 6 Abs. 1 SortG by the Act Amending the Plant Variety Protection Act of 17. July 1997 (Gazette. I 1997, S. 1854) should, as is clear from the preamble of the bill, the adaptation of varieties to the new provisions of the Data Protection Act in 1991 serve the revised Convention (BT-Drucks. 13/7038, S. 1, 10).
a) Not Art. 6 Abs. 1 the Convention is seen at-as New a variety, if on the date of filing of the application for grant of a breeding terrechts propagating material or harvested material of the variety in the territory of the Contracting Party, in which the application has been filed, was not earlier than one year and within the territory of another Party no earlier than four years or, in the case of trees and vines, earlier than six years selling by the breeder or with his consent for the purpose of evaluation of the variety or submitted in any other way other. Party is on the nature. 1 vii of the Convention by a Contracting State or intergovernmental organization, is a treaty organization of this Convention. Under the territory is on the nature. 1 viii of the Convention the territory of a State shall be construed, if that Party is. Is it in the Contracting Party is an intergovernmental organization, making it the territory meant, in the place of that intergovernmental organization constituting treaty application. This produces, that when filing an application for national plant variety right as to novelty by type. 6 Abs. 1 the Convention only come into consideration actions, who in the territory of the State concerned taken place more than a year ago. The Convention can not be found, that the territory of a Member State of the Convention, which is a member of an intergovernmental organization, which the Convention also
10
11 – 8 –
joined, different from type. 6 Abs. 1 in conjunction with Article. 1 viii is to deter-mine.
b) The revised Convention opened in kind. 6 Abs. 3 und in Art. 16 Abs. 3 the possibility, that Parties, Member States and the same intergovernmental organization, A shared approach, to respect the rules on the novelty of a variety (Art. 6 Abs. 1) or via the exhaustion effective (Art. 16 Abs. 1) Assimilate acts done on the territories of the Member States of this intergovernmental organization to acts done on their own territories, unless this requires the regulations of that organization. This rule was introduced as a precaution in the event in the Convention, that an intergovernmental organi-zation, about the European Union, the required harmonization shall act.
With reference to this possibility, the legislature has a change of § 6 Abs. 1 No.. 1 and 2 Seen SortG causes. In the explanatory memorandum to the draft law amending the Plant Variety Protection Act it is stated (BT-Drucks. 13/7038, S. 12):
“For the spatial range of novelty-destroying dispensing is in relation to Article 6 Abs. 3 of the Convention and Article 10 Abs. 1 the EC Regulation now turned instead to the domestic market on the territory of the Community.”
c) The required therefor by the revised Convention prerequisites are not currently before. The Union law provisions currently contain any provision, which are equated with the national application for registration of a variety acts in the territory of the Member States of the Uni-on in terms of the novelty acts in the territory of the Union. The Convention also afford the possibility of, that individual
12
13
14 – 9 –
Member States of an intergovernmental organization, the area, that are critical to novelty destroying acts, Notwithstanding determine. After standing for the national plant variety protection laws of other Member States of the European Union – extent known to the Senate – only acts on the territory of the respective state, that occurred more than a year ago, the newness against the variety.
According to the provisions of the Convention, therefore, is far from corresponding one from issuance of plants or parts of plants of a variety whose novelty only, if these actions have occurred within one year before the application for the domestic. If the statutory provision under § 6 Abs. 1 SortG applied according to its terms, would have a less favorable treatment of the breeder result, because in the Federal Republic of Germany, unlike other countries of the European Union, no national plant variety protection he could-long, when the propagating or harvested material were sold within a period of more than a year in another country of the European Uni-on by him or with his consent or otherwise, given in other.
2. The in this version of § 6 Abs. 1 SortG lying deviation from the Convention is based on an apparent oversight by the legislature.
a) The legislative history of the Act amending the Act Sortenschutzge results, that the legislature acted with the intention, adapt the varieties protection law with the provisions of the revised Convention (BT-Drucks. 13/7038, S. 1, 10). There are ersicht-ing no evidence, that the legislature could have made a conscious decision, deviate from the provisions of the Convention.
b) Against such an intention speaks particularly, that of such a scheme also a violation of the Federal Republic of German-
15
16
17
18 – 10 –
country would be received international treaty obligation to implement the Convention. By the conclusion of the Convention, the Federal Republic of Germany has committed, To grant breeders' rights and to protect and to respect the provisions of the Convention. The Bundestag has the revised Convention by the law of 25. March 1998 agreed (Gazette. I 1998, S. 232). Thus, the Convention domestically obtained the rank of ordinary federal statute. The Agreement provides for the parties, though some leeway in implementing a, etwa in Art. 15 Abs. 2 regarding the possibility of the use of crop by farmers. Mostly, however, it contains bind-ing requirements, to ensure a uniform standard for the breeder as rights in the countries involved. Such binding specifi-cation also contains type. 6 Abs. 1 of the Convention as regards the requirements on the novelty of a variety. In implementing the Convention into national law, the Parties may provide neither lower nor higher demands on the novelty of a variety. The conditions, under which a different provision of the territory by type. 6 Abs. 3 is of the Convention admissible, lie – as stated – currently before.
3. Against this background, the wording of § 6 Abs. 1 SortG no-ne crucial importance to be attached, rather a pop u la-kerrechtskonforme interpretation of the standard is required.
a) According to the jurisprudence of the Federal Constitutional Court follows from the law the Basic Law, promotes the operation of govern-cher sovereignty by international treaty law and international cooperation, the obligation of the state bodies, apply national law in so, that conflict with the international obligations of the Federal Republic of Germany does not arise. Once international treaties, which the legislature has agreed, ste the rank of a federal law-
19
20 – 11 –
them, the courts have applied the applicable international treaty law as another Ge laws of the Federal law under methodologically justifiable interpretation to be observed and (Constitutional Court, Decision of 26. March 1987 2 BvR 589/79 u.a., BVerfGE 74, 358, 379; Decision of 14. October 2004 2 BvR 1481/04, BVerfGE 111, 307, 317 f.; Decision of 19. September 2006 – 2 BvR 2115/01 u.a., , A 2007, 499, 501).
b) End The possibilities of international law interpretation favorable-ever, there, where it no longer appears acceptable according to established methods of statutory interpretation and constitutional interpretation (BVerfGE 111, 307, 329; Constitutional Court, Judgment of 4. More 2011 2 BvR 2333/08 u.a., BVerfGE 128, 326, 371). An international law interpretation is especially not possible, if you may prevent the wording and clear intention of the legislature (Bernhardt in honor of Helmut Steinberger, 2002, S. 391, 392). Egg ne such a situation is here but not before, because the legislature, as set out, had the intention, adapt the Plant Variety Protection Act on the provisions of the revised Convention.
4. § 6 Abs. 1 SortG ist mithin – Solange in Art. 6 Abs. 3 are not yet available to the Convention set out conditions for a derogation, the territory – be interpreted as meaning, that a variety is considered as new, when plants or parts of plants of the cultivar with the consent of the claimant or his predecessor before the date of application, or only within a period of one year in Germany or four years (in vine and tree species six years) have been cast abroad for commercial purposes to other.
21
22 – 12 –
III. The contested decision should be repealed, and the thing to a fresh decision to the Patent Court to refer back.
Meier-Beck Bacher Hoffmann
Dike foot Kober Dehm
Lower court:
Federal Patent Court, Decision of 06.09.2012 – 36 The(pat) 1/10 –
Leave a Reply