Nador Cott Protection S.A.S. v (1) ASDA Stores Ltd & or [2026] EWHC 553 (Pat)
This is the very first decision of a UK court regarding the infringement of a plant breeders’ right (“PBR”) granted pursuant to the Plant Varieties Act 1997 (“PVA”). The Claimant is the owner of UK PBR No. 28016 for a variety of mandarin orange known as Nadorcott. The Claimant alleged that its PBR is infringed by the sale of harvested material (i.e. fruit) from a mandarin orange variety known as Tang Gold, which is sourced in the UK and sold to consumers by ASDA.
The case focused on two main issues:
- Whether Tang Gold is an essentially derived variety of Nadorcott within the meaning of s.7(3) PVA; and
- Whether the Claimant has had a reasonable opportunity to exercise its right in relation to the unauthorised use of propagating material, such that it is now entitled to enforce its PBR against unauthorised acts done in respect of harvested material, within the meaning of s.6(3) PVA.
At the trial which was heard by Mellor J over the course of two days, the Defendants successfully argued that Tang Gold is not an EDV of Nadorcott. As such, Mellor J found that the Claimant’s allegation of infringement was not made out.
The judgment represents the first UK authority on the construction of ss.6 and 7 PVA and the assessment of infringement of a plant breeders’ right. The decision includes a detailed analysis of international approaches to plant breeders’ rights stemming from the 1991 UPOV Convention, as well as a consideration of the effect of cross-jurisdictional parallel litigation on the reasonable opportunity requirement in s.6(3) PVA.
Anna Edwards-Stuart KC and Miruna Bercariu appeared on behalf of the Defendants, instructed by Appleyard Lees.