Blackcurrant Wars, As Ribena Fends Off Attempt To Get Access To Key Plant Variety Through Compulsory Licence

Author:Mr Joel Smith and Laura Adde
Profession:Herbert Smith Freehills
 
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There has been some debate about whether certain products will cease to be available in the UK market in the event of a no-deal Brexit. It remains unclear whether this would in fact be the case - whether as a matter of practicality or politics. However, if products were to become unavailable, there has been some speculation that where those products are protected by patents or similar rights, companies and individuals in the UK may be able to make, use or dispose of such products by means of the compulsory licensing regime.

Historically, it has been very difficult to obtain a compulsory licence under patent law. More recently it has also proven to be a challenge in respect of other rights, as illustrated by the below case which was the first application for a compulsory licence in respect of Community Plant Variety Rights (“CPVR“).

Background

Smith Kline Beecham Limited (then GSK) was granted a CPVR in July 2013 for the “Ben Starav” variety of blackcurrant species Ribes nigrium L.. The CPVR was subsequently transferred to Lucozade Ribena Suntory Limited (“LRS“). Ben Starav is used by LRS, in combination with other blackcurrant varieties, to produce the well-known branded soft drink “Ribena”.

Pixley Berries (Juice) Ltd (“Pixley“) is a UK company which specialises in processing fruit, including blackcurrants. It is an ingredients suppler of not from concentrate (“NFC“) juice to packers, bottlers and consumer brands across Europe. Pixley's fruit is grown at Pixley farm exclusively for Pixley.

Pixley had sought to obtain a contractual licence for variety Ben Starav from LRS without success for several years. In March 2017 Pixley applied to the Community Plant Variety Office (“CPVO“) for a compulsory licence in respect of the variety.

The legislation

Article 29 of Council Regulation (EC) No 2100/94 provides that the CPVO may grant compulsory licences on the grounds of public interest.

Article 41(2) of the Proceedings Regulation (of Commission Regulation (EC) No 874/2009) provides three (non-exhaustive) circumstances which may constitute a public interest:

the protection of life or health of humans, animals and plants; the need to supply the market with material offering specific features; or the need to maintain the incentive for continued breeding of improved varieties. Pixley's case

Pixley argued that the Ben Starav variety exhibited certain unique features, namely: i) a consistent high yield of good quality fruit; ii) harvest season not...

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