Agritech Thymes: The Bite of Implied Consent: Lessons from the Pink Lady Case

• Can the supply of a plant variety without clear and defined restrictions on its use be an implicit consent to commercialise it?

This case centres on the evidence required to establish “serious doubts” regarding novelty of the well-known Cripps Pink (“Pink Lady”) and Cripps Red (“Sundowner”) apple varieties. As a reminder, novelty of a plant variety right is assessed using a test of “commercial novelty”, rather than a test of “absolute novelty” as used in patent law.

The EU General Court decision (T-159/24) reaffirms that implicit consent to commercialise a plant variety can undermine its EU plant variety right (CPVR) protection.  The Court decided that the supply of varieties to nurseries without clear restrictions as regards their use long before filing the CPVR applications was enough to provide implicit consent to exploit them commercially, to the detriment of their EU plant variety rights.

The takeaway? Even if the intention is merely to hand out new varieties for testing purposes in commercially relevant field trials, it is best to expressly limit the use of new varieties for testing or research purposes to preserve their novelty in a subsequent CPVR application.

The Court also addressed the role of declarations as evidence. It confirmed that declarations may carry weight even without supporting documentation, provided they’re credible, made by impartial parties, and consistent with other evidence.

In short, record-keeping and express limitations regarding commercial uses in contracts are key. Creators of new varieties should document when varieties are disposed of and retain evidence of any use restrictions placed on those varieties to mitigate the possibility of a third party establishing “serious doubts” regarding the novelty of the variety.

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