This case considered whether compulsory exploitation rights should be granted in protected variety of potato on grounds that refusal to issue licence was unreasonable and right holder was failing to satisfy demand in UK market.

Facts: On October 31, 2001, the Controller of Plant Variety Rights refused the first compulsory licence application lodged under the Plant Varieties Act 1997 (the "Act"). The challenge was to a variety of potato "Lady Rosetta", popularly used in crisp manufacture. Dutch seed breeder, C. Meijer BV ("Meijer") owns the United Kingdom plant breeders' rights in "Lady Rosetta", with MBM Produce Ltd acting as its exclusive agent in the United Kingdom. Sacker Potatoes Ltd ("Sacker") applied (unsuccessfully) for a compulsory exploitation rights in the protected variety, arguing that Meijer's refusal to issue a licence was unreasonable and that the rights' holder was failing to satisfy demand in the United Kingdom market. The applicant's action was supported by Higgins Agriculture Ltd.

Section 17 of the Act sets out the criteria for a compulsory licence application. The Controller may only grant an application on the basis that the rights' holder has unreasonably refused (or put forward unreasonable terms) under section 17 (1) to grant a licence if she is satisfied under section 17 (2) that:
(a) it is necessary to secure that the variety is: available to the public at reasonable prices; widely distributed; or maintained in quality;
(b) the applicant is financially and otherwise in a position to exploit the variety in a competent and businesslike manner; and
(c) the applicant intends to so exploit those rights.

The Controller must also have regard to the fact that the rights' holder is entitled to secure reasonable remuneration from exploiting its intellectual property rights (in practice, to ensure adequate funding for ongoing or new breeding programmes or to finance the development, trialling and marketing of existing or new plant varieties).

Held: After protracted proceedings of over a year, the matter came for final consideration by the Controller, After acknowledging the evidence cited on both sides, the Controller found that insufficient evidence had been adduced by the applicant to demonstrate that the rights' holder had unreasonably refused to grant a licence to the applicant. The Controller had regard to the general conduct of the parties (especially the applicant's previous import of seed without the rights' holder's permission) and concluded that none of the public interest criteria under section 17 (2) had been met.