Sun World International vs Puglia Export Fruits – Plant Variety Rights (Round II)
On September 8, 2017, the full Court of Bari rejected the appeal brought by the Sun World International LLC against the order issued by the Court of first instance on July 3, 2017 – that had granted Puglia Export Fruits grounds, revoking the “description” measure set forth by articles 128-130 of the Italian Code for Industrial Property (see the previous article) – confirming that, under certain circumstances, a “genetic test” carried out on a grape variety, before and outside of a judicial procedure and thus in absence of a debate between the parties, has to be considered as lacking of probative value. Moreover, no relevance can be attached to the comparison of photographic reproductions concerning the grape varieties.
In fact, Sun World International filed a complaint to the Board against the said order of July 3, 2017, claiming misapplication of the law and misinterpretation of convincing facts and documents which were of decisive importance in the context of the decision (insisting in the statement that the documentation provided was able to demonstrate the breach of patent rights) as well as undue recognition of the legal fees. The Board was demanded to fully reform the contested decision, confirming the inaudita altera parte order obtained by the Bari Court against Puglia Export Fruits.
The Board endorsed the reasoning set out in the order on the lack of probative value of the “expert inspection” (i.e. the “genetic test” on the grape variety) conducted by the plaintiff before and outside the proceeding and used as a basis of its compliant due to gain the inaudita altera parte order. According to the Board’s opinion, the facts and circumstances provided by the applicant to support its grounds (the purchase of a pack of “seedless”, white grape in a supermarket by the applicant that has been sold by the respondent; the receipt of that purchase reporting the word “sweet, seedless grape” and the indication in the report of the genetic exam of the term “Sublima” as grape variety tested) were deemed to be not sufficient in order to reasonably demonstrate that the sample of grape bought in the supermarket was the same that had been tested. On the contrary, it has been considered that those circumstances founded the justified suspicion that the genetic exam could refer to a different grape variety (i.e. “Sublima”).
The Board also stated that, in itself, it was not possible to attach probative value to the mere comparison between the photographic reproductions of the grape varieties (the one bought in the supermarket and the one tested).
Consequently, in the view of the fact that there were no elements able to identify with a certain degree of probability that the grape variety examined was the “Sugraone” variety, the Board entirely rejected the Sun World International’s requests, confirming the contested order.