Last week, the Controller of Plant Variety Rights refused the first compulsory licence application lodged under The Plant Varieties Act 1997.
The challenge was to a variety of potato "Lady Rosetta", popularly used in crisp manufacture. Dutch seed breeder, C. Meijer BV owns the UK plant breeders' rights in "Lady Rosetta", with MBM Produce Limited acting as its exclusive agent in the UK. Sacker Potatoes Limited applied (unsuccessfully) for compulsory exploitation rights in the protected variety, arguing that Meijer's refusal to issue a licence was unreasonable and that the rights' holder was failing to satisfy demand in the UK market.
Section 17 of the Act sets out the criteria for a compulsory licence application. The Controller may only grant an application on the basis that the rights' holder has unreasonably refused (or put forward unreasonable terms) to grant a licence if she is satisfied that:
