An article by Sabrina Gale- At the beginning of October, Sabrina Gale, the Junior IP Lawyer of CIOPORA, along with Ingrid Slangen, a CIOPORA Board Member and Director of IP & Legal Affairs at Selecta One, participated in the Ornamental Experts Meeting organized by the Community Plant Variety Office (CPVO). During this meeting, various topics were discussed. The following text summarizes the key discussions and conclusions.
New Confidentiality Framework in the Technical Questionnaire (TQ) Aligned with Transparency Rules:
In processing public access requests, the CPVO adheres to Regulation (EC) No 1049/2001 on public access to EU documents (the "Public Access Regulation" or "PA Regulation"), applicable to all EU agencies. This regulation grants any EU citizen the right to access documents from EU institutions, with transparency being the guiding principle. However, the PA Regulation outlines specific exceptions where access may be restricted to protect legitimate private or public interests, and these exceptions must be interpreted strictly. Consequently, any decision by the CPVO to deny access to documents must be firmly justified.
Each year, the Office handles a significant number of public access requests, many of which concern documents submitted in the context of Community Plant Variety Rights (CPVR) applications. Among the most requested documents is the technical questionnaire (TQ), which includes information on the breeding scheme of the variety.
On several occasions CIOPORA has engaged with the CPVO regarding the confidentiality of breeding scheme information, specifically in Section 04 of the TQ. In 2022, CIOPORA responded to a public consultation, advocating that the CPVO maintain the confidentiality of all information in Section 04.01 (the breeding scheme), except for mono-parental varieties, unless a public interest in disclosure is identified through case-by-case review.
As a result of the past discussions, during the recent EOM, the CPVO announced a new confidentiality pattern in the TQ, effective January 2025. This pattern will introduce a revised question format with two possible types of confidentiality:
1. For hybrids involving repeated use of parental components:
"In accordance with Article 88(3) of Regulation 2100/1994, the Office will treat this section as confidential upon the applicant's request."
IMPORTANT – For this question no justification is required, and the information will be treated as confidential
2. For other cases:
"Please explain why this information should be considered confidential and how its disclosure would harm your commercial interests (e.g., business relations, trade secrets, expertise, strategies, intellectual property) under Article 4(2) of Regulation 1049/2001. As transparency is the default rule, it is in your best interest to provide compelling reasons. The Office will assess your justifications and decide whether to disclose the information if a public access request is made."
IMPORTANT – For this question justification is required if the applicant wishes to keep the information confidential. Detailed explanations must be provided, and these will be reviewed by the Office on a case-by-case basis.
CIOPORA will soon provide members with guidance on possible grounds for confidentiality. The CPVO will issue a general communication to all applicants in December, announcing the new confidentiality procedures.
Rose DNA service:
This service of storage of DNA offered by Naktuinbouw, in the Netherlands, has had very few requests for the DNA sample to be kept over the years. Therefore, this matter was discussed during the OEM 2023. This was followed by a consultation to enquire whether the service was still of interest to applicants.
CIOPORA communicated to members and enquired accordingly whether the continuation of the service was desirable. No reply was received from our members, so CIOPORA did not communicate any request to keep the service to the CPVO.
As breeders in other European Associations e.g. PLANTUM, also did not request to keep the service, CPVO considered as an agreement to stop the service.
As a result, the following information will apply:
In practice:
Garden roses: as from the 2024/2025 trial (applications received between 01.10.23 and 30.09.24) - no service anymore (13 requests received on 36 > Naktuinbouw to inform the applicants).
Pot roses: as from the 2025 trial (applications received between 30.11.23 and 01.12.204) - no service anymore (2 requests received on 16> Naktuinbouw to inform the applicants).
Cut roses: as from the 2025 trial (applications received between 16.10.23 and 15.10.24) - no service anymore (29 requests received on 99 > Naktuinbouw to inform the applicants).
On-going storages:
Cut roses: DNA samples kept by Naktuinbouw.
Garden and pot roses: DNA samples kept until the end of the 5 years of storage included in the service and then Naktuinbouw will contact the applicants.
Finally, document 1.3.2.8.3 with information about the service will be withdrawn from the Vademecum and the documents will be withdrawn from the webpage.
Definition "growing period" and "growing cycle"
A discussion on the terminology used in various documents, such as "growing period", "growing cycle", and "duration of the test", “Establishment Period”, “Examination Period” and “Duration of the Trial’” to enhance clarity and avoid misunderstandings was held among crop experts in 2021.
The following explanation for publication on the S2 Gazette was proposed:
"Growing Period" refers to the vegetation period, typically lasting up to one year but may extend beyond this for certain plants, such as those planted in summer/autumn or tropical crops without a clearly defined dormancy period (e.g. some tropical fruit crops).
“Growing trial” can encompass one or more growing periods.
The number of growing periods equals to the number of examination fees to be paid.
The "Growing Cycle," in contrast, relates to the time during which characteristics of the plant are observed. Growing cycles may be preceded by an establishment period covering one or several growing periods during which normally no formal assessment of the variety takes place.
Parallel growing cycles are treated as separate growing periods.
Technical Protocols:
The meeting addressed updates on the following DUS Test Technical Protocols.
Leucospermum (new)
Weigelia CPVO-TP(new)
Calluna CPVO-TP (full revision)
Oncidium; xOncidesa; xIonocidium, xZelenkocidium (revision)
Limonium Mill., Goniolimon Boiss., Psylliostachys (Jaub. & Spach) Nevski (revision)
Applications for Ornamental Crops - General instructions on the submission of samples
The submission of plant samples for ornamental crops must follow specific guidelines to ensure proper delivery and testing. Applicants are required to provide detailed information about the species, applicant, and CPVO application number, and samples must be delivered free of charge, meeting all phytosanitary and customs requirements. The plant material should be appropriately packaged and clearly labelled to prevent mixing during transit. Samples must meet the specified size, condition, and number requirements and be delivered within the designated period, with no delivery on weekends or holidays. All plants must be in the same developmental stage and free from diseases or chemical treatments unless permitted. Non-compliance with these requirements may result in the rejection of the application. For material sent from outside the EU, applicants should contact CPVO if import restrictions affect the submission, and ensure smooth customs clearance to avoid delays.
Sample keeping procedure:
The CPVO clarified the procedure for determining whether plant samples must be kept after a negative trial report. Upon receiving a negative report, the CPVO informs the Examination Office (EO) via email whether to retain or destroy the plant material. The decision is based on distinctness, uniformity, or stability issues. If the applicant agrees with the trial results, or if uniformity issues are well documented and uncontested, plant retention is generally unnecessary. However, for distinctness issues, the CPVO often requests that samples be kept.
The decision to keep the plant material beyond the end of the DUS trial is taken by the CPVO. The main principles of this decision are the following:
If no retention is needed, the EO may destroy or keep the material for its own collection.
When retention is requested, both candidate and reference variety plants may be required, particularly for distinctness issues.
The CPVO specifies whether the entire sample or just a representative portion should be retained, and the samples must be kept until the CPVO terminates the request, either after an application withdrawal or when the appeal period ends.
A fee of €20 per week is charged starting five weeks after the final report if the samples are kept beyond that point. In some cases, even after a positive report, the CPVO may request sample retention due to objections.
Finally, the vademecum document MEO/10/09 stated that CPVO will confirm after each negative report whether plant material needs to be kept or not. As this statement is now part of the designation agreement, the document MEO/10/09 can be removed from the vademecum.
Still under discussion:
Usefulness of some questions in the Technical Questionnaire:
Discussions revolved around the need to clarify information in the Technical Questionnaire, such as details about propagation and chemical treatments. The aim was to reduce confusion for applicants and minimize back-and-forth communication with the CPVO.
The Examination Offices emphasized that they do not accept treated material, suggesting a disclaimer to highlight this requirement more clearly. The propagation method also requires precise information.
While the group are in favour of the question on tissue culture (9.03) to be removed from the TQ, information about chemical treatments must be retained. A proposal was made to include a signed declaration from applicants to confirm they understand these requirements, similar to what is done in the fruit sector. Further feedback will be collected before the next meeting.
General submission requirements - Update: possibilities to postpone delivery of samples
The Ornamental experts discussed possibilities to postpone delivery of samples. The updated submission requirements for ornamental crops will introduce options for postponing the delivery of plant samples under certain conditions.
Applicants may request a short extension of 1-2 weeks if approved by the examination office and it does not interfere with the technical examination.
Postponements may also be granted in cases of force majeure or quarantine, provided supporting documents are submitted, such as proof from quarantine authorities.
To request a postponement, applicants would need to submit a written request to the CPVO before the end date specified in the plant material request letter, as late requests will be rejected. The CPVO will review each case individually.
Single Observations in multi-annual testing Meeting:
The Working Group on single observations in multi-annual testing, particularly for vegetables and fruits, agreed on a final draft which aims to clarify the practices among Examination Offices (EOs) regarding single observations of characteristics during DUS testing and to provide greater transparency regarding those situations. The document also aims to outline the most frequent situations in which characteristics might be observed only once while maintaining compliance with protocol provisions and ensuring legal certainty. CIOPORA participated in the discussions and can answer any further questions our members may have on this document.
Further meetings to be held in 2024:
CPVO Fruits Experts Meeting
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