Andrew Lykiardopoulos QC appeared on behalf of Lucozade Ribena Suntory before the Community Plant Variety Office in its successful resistance of Pixley Berries’ application for a compulsory licence in respect of the blackcurrant plant variety ‘Ben Starav’ used in Ribena. It is the first time an application for a compulsory licence has been made under Article 29 of the Plant Variety Rights Regulation (Council Regulation (EC) 2100/94) and the first contested hearing for a compulsory licence at the Office.
Pixley Berries sought a compulsory licence from LRS so that it could propagate the Ben Starav variety, and produce blackcurrants for their 100% not-from-concentrate (“NFC”) blackcurrant juice. Pixley Berries argued there was a need to supply the NFC market with blackcurrants with the specific features of Ben Starav.
Pixley Berries argued that it fulfilled the criteria under the Regulation, as there was a genuine public interest in the granting of such a licence, in that Ben Starav contains exceptional qualities, was not available for the NFC market, would assist in the promotion of a healthy lifestyle and that it had been developed with public money.
The Office considered the proportionality of granting such a licence in light of the invasive nature of a compulsory licence on the exclusive rights of the titleholder. It was not convinced that Ben Starav provided unique qualities that could not be found with other varieties, nor that there were any specific health benefits of Ben Starav as opposed to other varieties. Further, it held that the fact that the research into the variety was partially publicly funded should not be taken into account when deciding whether to grant a compulsory licence. It emphasised that the interests of a particular grower or even a group of growers ought not to be sufficient for the grant of a compulsory licence. In the circumstances, Pixley Berries did not satisfy the Office that it was in the public interest to grant a compulsory licence.