What is a Sport? The new variety may have the habit of growth of the parent plant and differ only in the color of the bloom or might be a bush rose that has "sported" to a climbing version.
'Peace' is a rose that has sported both ways - to a pinker version of itself in
'Chicago Peace' and to a taller-growing version in
'Climbing Peace.'
In 1971, while he was employed as a Director by Meilland -- one of the world's leading breeders and producers of roses and the breeders of 'Peace' -- René Royon became a sub-licensee to produce under glass cut flowers from Meilland varieties, including the variety 'Sonia,' one of the most widely grown cut roses and a top money earner for Meilland.
Not long afterwards, Monsieur Royon discovered a sport (later called 'Pitica'/'Kyria') on a bush of 'Sonia' in his greenhouse and for the next fifteen years, the legal system wrestled with the question: "Whose sport is it anyway?"
Almost every Meilland cutrose variety is protected by plant patents or breeders rights. Each variety is viewed as a unique creation that is extensively tested over a period of several years to determine its viability in the marketplace. This requires time and a sizeable financial investment. Meilland held protection for its variety called 'Sonia'. But did that mean that this protection should also extend to 'Sonia's sported offspring? Would every sport regardless of who found it belong to the person who holds the rights to its parent? A successful variety like 'Sonia' -- the biggest commercial success in the world with about 40 million plants sold -- could be enormously profitable.
Well, according to French Plant Protection Law at that time, a Plant Breeder's Certificate entitled its owner to the reproductive rights of the named variety. Meilland licensees were obliged to notify the parent company of the existence of a sport within 15 days of its discovery. The new variety was considered the property of Meilland and was required to be surrendered to them for evaluation. After a period of three years and if Meilland decided to market the new variety, they might agree to compensate its discoverer in some fashion dependent upon the profitability of the rose. But if they made no decision about the new rose after three years, Meilland waived its rights to that rose.
In other member countries of the European Union, these same rules did not apply. Take Germany, for instance - there a licensee was required to inform Meilland of a sport when it was discovered. Meilland might even choose to visit the licensee's premises and examine the rose. However, the licensee was considered to be the inventor of the sport.
M. Royon actually reported several sports of 'Sonia' and at the end of October 1971 he sent grafts of all of them to Meilland for evaluation. By the end of 1973, Meilland had not contacted Royon about the 'Sonia' sports. As a precaution and because he felt strongly about the potential of the new rose, Royon filed an application for a breeder's certificate for RR7 (later called 'Pitica') and informed Meilland that he had done so. He wrote to Meilland again a few months later, stressing the importance of the new variety. Meilland thereupon announced its intention to exercise its rights over RR7 and informed Royon that should they reach a favorable decision about the new variety before the end of March 1975, he would be required to sign over whatever protection he had obtained for it. In turn, they would agree to pay him 15% of the gross royalties collected from the sale of this rose. In the event that Meilland reached an unfavorable decision about RR7, they agreed to waive their rights to it.
By November 1974, however, Meilland formally announced its intention to market 'Pitica'. A deed of assignment was drawn up which stipulated that M. Royon sign over his application for a breeder's certificate in France (No. 00730) and his rights to this rose in any other country as well. Meilland agreed to reimburse M. Royon for expenses he incurred in registering it. In addition, they agreed to pay M. Royon a royalty of 15%. Meilland reserved the right to market 'Pitica' wherever and however they chose to.
But by the summer of 1977, Meilland had declared 'Pitica' not suitable for garden use. It was first marketed as a cut rose in 1978 and was sold under the name 'Kyria'. In sales, 'Kyria' ranked 20th out of Meilland's other 60 or so varieties of cutroses - other sports discovered by third parties have done considerably better - 'Carlita' 3rd, 'Carinella' 4th and 'Privé' 5th. Royon maintained that Meilland did not do enough to promote 'Kyria'.
At the time he discovered the mutation, Meilland contended that Royon was in their employ (he resigned the following February) and was therefore not free to carry on business as a plant breeder. In addition, they contended M. Royon violated his agreement with them by applying for a plant breeders' certificate. Since 'Sonia' is known to sport often, and as that rose is their creation, Meilland contended sports were their property. In addition, Meilland maintained they adequately promoted this rose and that M. Royon was in no position to do so.
The Court disagreed and ruled that, in fact, M. Royon would have been able to devote more attention to the promotion of this rose. M. Royon "could have devoted his entire resources, his efforts and his detailed knowledge of the international market to making it a success," they wrote.
Meilland also contended that no one forced M. Royon to sign the original agreement, but that since he did so he was bound by it. The Court, however, ruled that requiring M. Royon to relinquish all rights to a sport was restrictive under French Law. Meilland's arguments could not be accepted. First, any sports M. Royon discovered in his greenhouse were not connected to his administrative responsibilities at Meilland. In fact, it was with Meilland's consent that M. Royon ran his greenhouse business as an independent.
Under French Law, a sport and an intentionally hybridized variety are equally valid for the granting of a plant breeder's certificate. Meilland has since changed its licensing and M. Royon has gone on to work to protect breeders' rights.
Information for this article was obtained from the EUR-Lex site, and references to a Commission Decision made in 1985 Document 385D0561 http://europa.eu.int/eur-lex/en/lif/dat/1985/en_385D0561.html.
http://www.shef.ac.uk/~pip/conrev.htm Rene Royon speaks at a plant breeders conference in 2001 Rene ROYON, Secretary General of CIOPORA, France
http://www.floralretailing.com/MarArticle2.html rose knockoffs in Ecuador
