MODEL LAW    (UPOV-1991 Convention)

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Content

PART I PURPOSE AND SCOPE OF THE LAW

PART II SUBSTANTIVE LAW

PART III ORGANIZATION AND PROCEDURE

PART IV ENFORCEMENT

PART V FINAL AND TRANSITIONAL PROVISIONS

　

　

　

　

PART I       PURPOSE AND SCOPE OF THE LAW

　

Article 1    Purpose of the Law and Definitions

  1. The purpose of this Law is to recognize and to ensure to the breeder of a new plant variety or to his successor in title a right, to be known as a “breeder's right,” under the conditions hereinafter defined.
  2. For the purposes of this Law:

(i) “Council” means the Plant Breeders' Rights Council referred to in Article 25;

(ii) “Office” means the Plant Breeders' Rights Office referred to in Article 26;

(iii) “Minister” means the Minister for…[the Minister who has responsibility for the protection of new varieties of plants];

(iv) “Regulations” means the implementing regulations made under this Law;

(v) “Convention” means the International Convention for the Protection of New Varieties of Plants;

(vi) “Union” means the International Union for the Protection of New Varieties of Plants;

(vii) “Contracting Party” means a State (other than the State1 ) or intergovernmental organization party to the Convention;

(viii) “Authority of a Contracting Party” means the Authority entrusted with the implementation of the law on the protection of new varieties of plants of the Party;

(ix) “breeder” means the person who has bred, or discovered and developed, a variety;

(x) “applicant” means the person who has filed an application for the grant of a breeder's right;

(xi) “holder” means the holder of a breeder's right;

(xii) “variety” means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, can be

-defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

-distinguished from any other plant trouping by the expression of at least one of the said characteristics and

-considered as a unit with regard to its suitability for being propagated unchanged;

(xiii) “protected variety” means the variety that is the subject of a breeder's right;

it shall be defined by the description established pursuant to Article 37(1)(iii)and by the official sample referred to in Article 49(1)(i), and identified by the denomination referred to in Article 5(1)(v);

(xiv) “notice” means, unless the context requires otherwise, a communication by the Office.

　

Article 2 Scope of the Law

  1. This Law shall be applied to the plant genera and species specified in the Regulations.
  2. This Law shall be applied on the date of its coming into force to at least 15 plant genera and species, and by the expiration of a period of ten years from the said date at the latest, to all plant genera and species.

　

Article 3 Nationality, Place of Residence or Registered Office

  1. The rights conferred by this Law may be acquired by
  1. nationals of the State and persons having their place of residence or registered office [or and establishment] in the State,
  2. nationals of Contracting Parties and persons having their place of residence or registered office[or an establishment] in the territory of a Contracting Party, and
  3. nationals of any State which, without being a Contracting Party, grants effective plant variety protection to the nationals of the State, and persons having their place of residence or registered office[or an establishment] in that State.
  1. For the purposes of paragraph (1)(ii), “nationals” means, where the Contracting Party is a State, the nationals of that State and, where the Contracting Party is an intergovernmental organization, the nationals of the Sates that are members of that organization.
  2. For the purposes of paragraph (1)(iii), the Office shall determine whether the plant variety protection offered by a State is effective.

　

Article 4 Procedural Representative

Persons having neither residence nor a registered office [nor an establishment] in the State may be parties to proceedings instituted pursuant to this Law and assert rights deriving therefrom only if they have a procedural representative who is resident or has an office in the State. The representative shall be given the power to act on his principal’s behalf before the Office and in legal proceedings relating to the protection of new varieties of plants.

　

　

　

　

PART II     SUBSTANTIVE LAW

CHAPTER I      CONDITIONS FOR THE GRANT OF A BREEDER'S RIGHT

Article 5 Conditions of Protection

1.The breeder's right shall be granted where the variety is

  1. new,
  2. distinct,
  3. uniform,
  4. stable and
  5. the subject of a denomination established pursuant to the provisions of Article 44.

2.The grant of a breeder's right shall not be made subject to any further or different conditions provided that the applicant complies with the formalities established by this Law and pays the required fees.

　

Article 6 Novelty

1.The variety is new if, at the date of filing of the application or, where relevant, at the priority date, propagating material or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder or his successor in title, for purposes of exploitation of the variety,

  1. in the territory of the State for longer than one year and,
  2. in a territory other than that of the State for longer than four years or, in the case of trees and grapevine, for longer than six years.

2.Novelty shall not be lost as a result of any sale or disposal to others

  1. that is the result of an abuse to the detriment of the breeder or his successor in title,
  2. that forms part of an agreement for the transfer of the rights in the variety,
  3. that forms part of an agreement under which a person multiplies propagating material of the variety concerned on behalf of the breeder or his successor in title, provided that the property in the multiplied material reverts to the breeder or his successor in title, and provided that the multiplied material is not used for the production of another variety,
  4. that forms part of an agreement under which a person undertakes field tests or laboratory trials, or small-scale processing trials, with a view to evaluating the variety,
  5. that forms part of the fulfillment of a statutory or administrative obligation, in particular concerning biological security or the entry of varieties in an official catalogue of varieties admitted to trade, or
  6. that involves harvested material being a by-product or a surplus product of the creation of the variety or of the activities referred to in items (iii) to (v) of this Article, provided that the said material is sold or disposed of without variety identification for purposes of consumption.

　

Article 7 Distinctness

  1. The variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application or, where relevant, at the priority date.
  2. The filing, in any country, of an application for a breeder's right or for entry in a catalogue of varieties admitted to trade shall be deemed to render the variety being the subject of the application a matter of common knowledge from the date of the application, provided that the application leads to the grant for the breeder's right or the entry in the catalogue, as the case may be.
  3. Common knowledge may also be established by reference to various factors such as: exploitation of the variety already in progress, entry of the variety in the register of varieties kept by a recognized professional association, or inclusion of the variety in a reference collection.

　

Article 8 Uniformity

The variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.

　

Article 9 Stability

The variety is stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

　

　

CHAPTER II          PERSONS ENTITLED

Article 10 Principles

  1. Entitlement to the breeder's right shall vest in the breeder or his successor in title.
  2. Where two or more persons have bred, or discovered and developed, a variety jointly, entitlement to protection shall vest in them jointly. Subject to any agreement to the contrary between the joint breeders, their shares shall be equal.
  3. Where the breeder is an employee, entitlement to the breeder's right shall be determined by the employment relationship in the context of which the variety was bred, or discovered and developed and in accordance with the law applicable to that relationship.

　

Article 11 Presumption of Title

  1. The applicant shall be considered entitled to protection, in the absence of proof to the contrary.
  2. However, where the application is made by a successor in title, it shall be accompanied by sufficient proof of the successor's title.

　

Article 12 Judicial Assignment of the Application for a Breeder's Right or of the Breeder's Right

  1. Where an application for a breeder's right has been filed by a person not entitled to protection , the entitled person may bring an action for the assignment to him of the application or, if already granted, of the breeder's right.
  2. Such action shall be barred after five years from publication of the grant of the breeder's right. An action brought against a defendant who has acted in bad faith shall not be subject to any limitation.
  3. (a)Where the action succeeds, any rights granted by the defendant to third parties [Alternative A, linked to Alternative A for Article 17(2): on the basis of the application or, where relevant, the breeder's right][Alternative B, linked to Alternative B for Article 17(2) : on the basis of the breeder's right] shall become null and void.

(b)However, the holder of any exploitation rights acquired in good faith who has taken genuine and effective measures with a view to exercising his rights before the date of the notification of the action or, failing such notification, of the decision may perform or continue to perform the acts of exploitation resulting from the measures taken, subject to payment of equitable remuneration to the entitled person.

　

　

CHAPTER III          THE RIGHTS OF THE HOLDER

Article 13 Scope of the Breeder's Right

1.Subject to Articles 14 and 15, the following acts in respect of the propagating material of the protected variety shall require the authorization of the holder:

  1. production or reproduction (multiplication),
  2. conditioning for the purpose of propagation,
  3. offering for sale,
  4. selling or other marketing,
  5. exporting,
  6. importing,
  7. stocking for any of the purposes mentioned in (i) to (vii), above.

2.Subject to Articles 14 and 15, the acts referred to in items (i) to (vii) of paragraph (1) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization for the holder, unless the holder has had reasonable opportunity to exercise his right in relation to the said propagating material.

3.[Alternative A] Where so provided in the Regulations in respect of varieties of a specified plant genus or species and subject to Articles 14 and 15, the acts referred to in items (i) to (vii) of paragraph (1) in respect of products made directly from harvested material of the protected variety falling within the provisions of paragraph (2) through the unauthorized use of the said harvested material shall require the authorization of the holder, unless the holder has had reasonable opportunity to exercise his right in relation to the said harvested material.

[Alternative B: no paragraph]

  1. The holder may make any authorization granted pursuant to [paragraph (1), (2) or(3)]3 subject to conditions and limitations.
  2. (a)4 The provisions of [paragraphs (1) to (4)]5 shall also apply in relation to
  1. varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety,
  2. varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and
  3. varieties whose production requires the repeated use of the protected variety.

(b) For the purposes of subparagraph (a)(i), a variety shall be deemed to be essentially derived from another variety(“the initial variety”)when

  1. it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,
  2. it is clearly distinguishable from the initial variety and
  3. except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

(c) Essentially derived varieties may be obtained for example by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering.

　

Article 14 Exceptions to the Breeder's Right

(1) The breeder's right shall not extend to

  1. acts done privately and for non-commercial purposes,
  2. acts done for experimental purposes and
  3. acts done for the purpose of breeding other varieties, and, except where the provisions of [Article 13(5)]6 apply, acts referred to in [Article 13(1) to (3)]7 in respect of such other varieties.

[(2) The legislation may, within reasonable limits and subject to the safeguarding of the legitimate interests of breeders, restrict breeders' rights in relation to varieties of specified plant genera and species in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, a variety of any such plant genus or species that is the subject of a breeder's right or is covered by [Article 13(5)(a)(i)or (ii)8.]

　

Article 15 Exhaustion of the Breeder's Right

1.The breeder's right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of [Article 13(5)]9, which has been sold or otherwise marketed by the holder or with his consent in the territory of the State, or any material derived from the said material, unless such acts.

  1. involve further propagation of the variety in question or
  2. involve an export of material of the variety, which enables the propagation of the variety, into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes.

2.For the purposes of paragraph (1), “material means, in relation to a variety,

  1. propagating material of any kind,
  2. harvested material, including entire plants and parts of plants, and
  3. any product made directly from the harvested material.

　

Article 16 Measures Regulating Commerce

The breeder's right shall be independent of any measure taken by the State to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material.

　

Article 17 Duration of the Breeder's Right: Provisional Protection

  1. The breeder's right shall expire at the end of the [twentieth] calendar year following the grant thereof; for trees and grapevine, it shall expire at the end of the [twenty-fifth] year.
  2. [Alternative A] In respect of the period between [Alternative 1: the filing] [Alternative 2 : the publication] of the application and the grant of the breeder's right, the holder shall be entitled to equitable remuneration from any person who, during the said period, has carried out acts which, once the right has been granted, require the holder's authorization as provided in Article 13.

[Alternative B] The applicant shall enjoy all rights provided for inn this Chapter as from the filing of the application.

　

　

CHAPTER IV         THE BREEDER'S RIGHT AS AN ITEM OF PROPERTY

Article 18 Transfer of Ownership

  1. The right to apply for the grant of a breeder's right, the rights under an application and the breeder's right shall be treated in all respects as items of [intangible personal[ [moveable] [industrial] [intellectual] property, and the general law relating to such property shall, except where otherwise provided in this Law, be applicable thereto.
  2. Such items of property may be transferred to one or more successors in title.

    3. Any transfer by assignment shall be made in writing.

  3. Any act by which the right to apply for the grant of a breeder's right, the rights under an application or the breeder's right are transferred or modified shall not affect the rights acquired by third parties before the date of the act.
  4. Any act by which the rights under an application or a breeder's right are transferred or modified, including judicial assignment, shall not be binding on third parties until it has been entered in the Register of Applications or the Register of Rights, as the case may be.
  5. However, an act shall be binding before such entry on third parties who acquire rights after the date of the act with notice of the act.

　

　

CHAPTER V     EXPLOITATION LICENSES

Article 19 Contractual Licenses

  1. [Alternative A, linked to Alternative A for Article 17(2): The holder] [Alternative B, linked to Alternative B for Article 17(2): The applicant or the holder] may grant an exclusive or non-exclusive license relating to all or any of the rights provided for in Chapter III of this Part to any person
  2. The license contract shall be in writing.
  3. (a) Any exclusive license may be entered in [Alternative A, linked to Alternative A for Article 17(2): the Register of Rights] [Alternative B, linked to Alternative B for Article 17(2): the Register of Applications or the Register of Rights, as the case may be], and a notice concerning it shall be published in the Gazette. A non-exclusive license may also be so entered, and the entry published at the request of either party to the contract.

(b) An exclusive license shall not be binding on a third party who has acquired rights in the breeder's right in good faith unless it was so entered prior to the date of acquisition.

　

Article 20 Compulsory Licenses

1.Any person may, by means of an application filed with the Office, seek the grant of a compulsory license in respect of the breeder's right. The Office shall grant the compulsory license only where this is necessary to safeguard the public interest.

2.A compulsory license shall not be granted unless all the following conditions are fulfilled:

  1. The applicant for the grant of a compulsory license must be financially and otherwise able to exploit the breeder's right in a competent and efficient manner, and also willing to do so;
  2. The holder has refused to grant the applicant a license or is not prepared to grant a license on reasonable terms;
  3. [Three] years have elapsed between the date of the grant of the breeder's right and the date of the application for the grant of a compulsory license;
  4. The applicant for the grant of a compulsory license has paid the fee prescribed in the Regulations for such grant.

3.The compulsory license shall confer on the licensee a non-exclusive right to perform all or any of the acts referred to in Article 13, for the supply of the national market.

4.When granting a compulsory license, the Office shall fix the equitable remuneration which the licensee shall pay to the holder. The licensee shall give the holder adequate security for the payment of the remuneration.

5.The Office may require the holder to provide the licensee with as much propagating material as is necessary for reasonable use to be made of the compulsory license, against payment of adequate remuneration to the holder.

6.The duration of the compulsory license shall be fixed by the Office. Only under exceptional circumstances shall the compulsory license be granted for less than [two] or more than [four] years. The term of the license may be extended where the Office is satisfied, on the basis of a new examination, that the conditions for the grant of the license continue to exist on the expiry of the first term.

7.The Office shall withdraw the compulsory license where its owner has violated the conditions under which it was granted.

8.Before granting a compulsory license, the Office may hear national professional organizations active in the field concerned.

　

　

CHAPTER VI           LAPSE OF THE BREEDER'S RIGHT

Article 21 Premature Termination

[Alternative A, linked to Alternative A for Article 46(1)]

  1. The breeder's right shall terminate before the term provided in Article 17(1) expires
  1. Where the holder surrenders it in a written declaration addressed to the Office, or
  2. Where an annual fee has become due and has not been paid.
  1. In the first case, the date of termination shall be that specified in the declaration or, if none is specified, the date of receipt of the declaration. In the second case, it shall be the due date of the fee.

[Alternative B, linked to Alternative B for Article 46(1)]

The breeder's right shall terminate before the term provided in Article 17(1) expires where the holder surrenders it in a written declaration addressed to the Office. The date of termination shall be that specified in the declaration or, if none is specified, the date of receipt of the declaration.

　

Article 22 Nullity

1.The Office shall declare a breeder's right null and void when it is established

  1. that the variety was not new (Article 6) or distinct (Article 7) at the date of filing of the application or, where relevant, at the date of priority,
  2. that, where the grant of the breeder's right has been essentially based upon information and documents submitted by the applicant, the variety was not uniform (Article 8) or stable (Article 9) at the said date, or
  3. that the breeder's right has been granted to a person who is not entitled to it and the entitled person has not brought an action for judicial assignment under Article 12 or has renounced the right to bring such an action.

2.Subject to any provision to the contrary in this Law, the breeder's right that has been declared null and void shall be deemed never to have been granted.

3.Any person having a legitimate interest may file a request for annulment with the Office.

　

Article 23 Cancellation

1.The Office shall cancel a breeder's right when it is established that the holder has failed to meet his obligation under Article 47(1) and that the variety is no longer uniform or stable.

2.(a)Furthermore, the Office shall cancel a breeder's right when

  1. the holder does not meet a request made by the Office under Article 47(2) for the purpose of verifying the maintenance of the variety, or
  2. the Office proposes to cancel the existing denomination of the variety and the breeder does not propose a suitable denomination within the period prescribed by the Office (Article 45).

(b)A breeder's right may only be canceled after the holder has been given notice of his obligation and allowed a reasonable period, specified in the notice, to comply therewith.

3.The cancellation shall take effect on the date of its entry in the Register of Rights.

　

Article 24 Publication of the Lapse

The premature termination, nullity or cancellation of a breeder's right under Article 21, 22 or 23 and the ground for it shall be entered in the Register of Rights. They shall also be published in the Gazette.

　

　

　

PART III   ORGANIZATION AND PROCEDURE

CHAPTER I        ORGANIZATION, COMPETENCE AND GENERAL RULES OF PROCEDURE

Article 25 Plant breeders' Rights Council

  1. The Minister shall appoint a Plant breeders' Rights Council composed of representatives of the various circles having an interest in the protection of plant varieties.
  2. The Council shall be presided over by a [Magistrate of the Court of Appeal of …][senior official of the Ministry].
  3. The conditions governing the appointment of the members of the Council and the operation of the Council shall be specified in Regulations.
  4. The Council shall give advice and make proposals to the Minister, assist through its advice the Office in the implementation of this Law and carry out the other tasks which are specifically entrusted to it by this Law.

　

Article 26 Plant breeders' Rights Office

  1. The Plant breeders' Rights Office is hereby established [as a public authority with legal personality].
  2. The Office shall be represented by its [President ] who shall be appointed and may be removed from office by the Minister.
  3. Decisions of the Office shall be taken by or under the authority of the [President].

　

Article 27 Right to be Heard by the Office

  1. Any proposed decision of the Office adversely affecting a party to proceedings before it shall be communicated to that party with a statement of the reasons for the proposed decision.
  2. The said party shall be given an opportunity to submit comments orally or in writing within thirty days from the date of receipt of the notice.

　

Article 28 Appeals

[Alternative A]

An appeal shall lie from any decision taken by the Office pursuant to this Law to the [Tribunal].

[Alternative B]

  1. An appeal shall lie from any decision taken by the Office pursuant to this Law.
  2. An Appeal Board shall be set up.
  3. A further appeal shall lie against the decisions of the Appeal Board to the [Tribunal].

　

Article 29 Registers; Preservation of Files

1.The Office shall maintain a Register of Applications and a Register of Breeders Rights. The Registers shall be open to public inspection.

2.Any person having a legitimate interest may inspect.

  1. the documents relating to applications,
  2. the documents relating to breeders' rights already granted, and
  3. the growing tests and other necessary tests under Article 37 or Article 48.

3.In the case of varieties the production of which requires repeated use of other varieties (components), the applicant may, when making his application, request that the documents and tests relating to the components be withheld from inspection.

4.The Office shall preserve the originals or copies of the documents in the files until five years after the withdrawal or rejection of the application, or the lapse of the breeder's right, as the case may be.

　

Article 30 Gazette

The Office shall publish a Gazette at regular intervals. The Gazette shall record the following:

  1. Applications for the grant of breeders' rights;
  2. Applications for variety denominations;
  3. Registrations of new denominations for protected varieties;
  4. Withdrawals of applications for the grant of breeders' rights;
  5. Rejections of applications for the grant of breeders' rights;
  6. Grants of breeders' rights;
  7. Changes in the persons (applicants, holders and procedural representatives);
  8. Lapses of breeders' rights;
  9. Licenses;
  10. Official announcements.

　

Article 31 Fees

The administrative acts of the Office shall give rise to the payment of fees, in amounts and under conditions specified in the Regulations.

　

Article 32 Restitutio in integrum

  1. Where, in spite of having taken all due care in the particular circumstances, the applicant or the holder, or any other party to proceedings before the Office, has been unable to observe a time limit in dealings with the Office, his rights shall, on request, be restored if the loss of any rights or means of redress provided for in this Law is directly attributable to his failure to observe the said time limit.
  2. The request shall be submitted within two months after the cause of noncompliance has ceased to operate and, in any event, within one year following the expiry of the unobserved time limit. The request shall be properly substantiated and shall be accompanied by the fee for restitutio in integrum.
  3. Where the request is granted, the petitioner shall be given a time limit equal to the unobserved time limit, starting on the date of receipt of notice of the decision, within which to perform the omitted act.
  4. Where the rights are restored, the petitioner may not assert his rights against any person who, in good faith, has engaged in, or taken genuine and effective measures with a view to , exploitation in the period between the loss of the rights and the publication of the notice on the restoration thereof.

　

　

CHAPTER II         THE APPLICATION

Article 33 Form and Content of the Application

1.Any person wishing to have a variety protected shall file an application with the Office and pay the application fee.

2.The application shall contain at least the following elements:

  1. the mane and address of the applicant and, where relevant, his procedural representative;
  2. the mane and address of the breeder, if he is not the applicant;
  3. the identification of the botanical taxon (Latin and common mane);
  4. the denomination proposed for the variety, or a provisional designation (breeder's reference);
  5. where the priority of an earlier application is claimed, the Contracting Party with which the application was filed and the filing date;
  6. a technical description of the variety;
  7. proof of payment of the application fee.

3.The detailed form and content of the application, and the documents to be attached, shall be specified in Regulations.

　

Article 34 Priority

1.The applicant may avail himself of a right of priority based upon an earlier application that has been duly filed for the same variety, by himself or by his predecessor in title, with the Authority of a Contracting Party.

(2)(a)Where the application filed with the Office is preceded by several such applications, priority may be based only on the earliest application.

(b)The rights of priority shall be expressly claimed in the application filed with the Office. It may only be claimed within a period of twelve months from the date of filing of the earliest application. The day of filing shall not be included in the said period.

(3)(a)In order to avail himself of the right of priority, the applicant shall submit to the Office, within three months from the filing date referred to in Article 35(4), a copy of the first application, certified to be a true copy by the authority with which that application was filed.

(b)The Office may request that a translation of the first application be produced within three months from the date of receipt of the request.

(4)(a)The effect of priority shall be that, with respect to the conditions of protection attaching to the variety, the application shall be deemed to have been filed at the date of filing of the first application.

(b)The applicant shall moreover be entitled to request that the examination of the variety be deferred by up to two years from the date of expiry of the priority period (three years from the date of filing of the first application). However, where the first application is rejected or withdrawn, the Office shall be entitled to initiate the examination of the variety before the date specified by the applicant; in such case, it shall allow the applicant an appropriate period within which to furnish the information, documents or material required for the purpose of the examination.

　

　

CHAPTER III         PROCESSING OF THE APPLICATION

Article 35 Examination as to Formal Requirements; Filing Date

  1. The Office shall examine whether the application satisfies the formal requirements for applications.
  2. Where the application is clearly unacceptable by reason of the botanical taxon to which the variety belongs (Article 2), the documents constituting the application shall be returned to the applicant, and the application fee shall be refunded.
  3. Where the application is incomplete or incorrect, the Office shall request the applicant to correct it within thirty days from the date of receipt of the request. Any application that is not corrected within the prescribed period shall be deemed not to have been filed.
  4. Any application that is complete and correct shall be given a filing date and shall be recorded in the Register of Applications. The date on which the information referred to in Article 33(2) is received by the Office shall be taken to be the filing date.

　

Article 36 Examination of the Application as to Substance

  1. The Office shall examine the application as to substance in order to verify, on the basis of the information given in the application , that the variety is new (Article 6)and that the applicant is entitled under Article 10.
  2. Where the examination reveals an obstacle to the grant of the breeder's right, the application shall be rejected.

　

Article 37 Technical Examination of the Variety

1.The variety shall undergo a technical examination the purpose of which shall be (i)to verify that the variety belongs to the stated botanical taxon,

(ii)to establish that the variety is distinct (Article 7), uniform (Article 8) and stable (Article 9), and

(iii)where the variety is found to meet the aforesaid requirements, to establish an official description of the variety.

(2)(a)The examination shall be undertaken under the supervision of the Office.

(b)Where growing tests or other necessary tests have been or are being undertaken by the Authority of a Contracting Party, and where the results of those tests may be obtained by the Office and transposed to the agroclimatical conditions of the State, the examination may be based on the said results.

(c)Where the examination is not based on results obtained under subparagraph (b), the examination shall be based upon growing tests and other necessary tests made

by the Office or by another institution on its behalf, or

by the applicant at the request of the Office.

(3)The Office shall specify the practical conditions for the examination.

(4)The official description referred to in paragraph (1)(iii) may be subsequently extended or amended on the basis of developments in agrobotanical knowledge without the subject matter of protection being affected thereby.

　

Article 38 Information, Documents and Material Required for the Examination

  1. The applicant shall submit to the Office all the information, documents or material requested by the Office for the purposes of the technical examination.
  2. Failure to submit the requested information, documents or material shall cause the application to be rejected, unless the applicant produces a valid explanation for his omission.

　

Article 39 Publication of the Application; Objections to the Grant of the breeder's Right

  1. As a minimum, the elements of the application referred to in Article 33(2)(i) to (v) shall be published in the Gazette
  2. As from the publication of the application any person may, within a time limit set by the Office, file objections to the grant of a breeder's right with the Office.
  3. The objections shall be made in writing and substantiated. The documentary evidence shall be attached.
  4. The objections may only be based upon the allegation that the variety is not new (Article 6), distinct (Article 7), uniform (Article 8) or stable (Article 9), or that the applicant is not entitled to protection (Article 10).

　

Article 40 Consideration of Objections

1.Objections to the grant of a breeder's right shall be communicated without delay to the applicant, who shall have a period of not less than three months within which to express his views on the objections and state whether he intends to maintain, amend or withdraw his application; the period may be extended on the basis of a properly substantiated request from the applicant.

2.Where the applicant does not respond within the prescribed period, the application shall be deemed to have been withdrawn. Where he responds and seeks to maintain the application, with or without amendment, his response shall be communicated to the author of the objection, who shall have thirty days within which to express his views on the response and state whether he intends to maintain or withdraw his objection.

3.(a)An objection that has been maintained shall be examined

  1. independently of the normal processing of the application where it is based on the allegation that the variety lacks novelty or that the applicant is not entitled to protection, or
  2. in the course of the technical examination of the variety where it its based on the allegation that the variety lacks distinctness, uniformity or stability.

(b)The Office may modify the conditions of the technical examination of the variety in order to accommodate consideration of the objection.

4.The author of an objection may be required to submit further information and documents in support of his objection, or such plant material as is necessary for the technical examination. Article 38 shall apply mutatis mutandis.

　

Article 41 Grant of the breeder's Right; Rejection of the Application

  1. Where it is satisfied as a result of the examination that the variety fulfills the requirements of Article 5 and that the applicant has fulfilled the other requirements set out in this Law, the Office shall grant the breeder's right.
  2. Where it is not so satisfied, the Office shall reject the application.
  3. The grant of the breeder's right, or the rejection of the application , shall be recorded in the Register of Applications and published in the Gazette.
  4. The grant of the breeder's right shall also be recorded in the Register of breeders' Right. The description of the variety may be included in the Register by reference to the technical files of the Office.

　

　

CHAPTER IV        VARIETY DENOMINATION

Article 42 Purpose of the Denomination and Signs That May Constitute a Denomination

  1. The denomination of a protected variety shall be its generic designation.
  2. The denomination may consist of any word, combination of words, combination of words and figures or combination of letters and figures, with or without an existing meaning, provided that such signs allow the variety to be identified.
  3. Where a denomination has already been use for the variety in the state or a Contracting Party, or proposed or registered in a Contracting Party, only that denomination may be used for the purposes of the procedure before the Office, unless there is a ground for refusal under Article 43. Any synonyms shall be recorded in the Register of Applications and the Register of Rights.
  4. (a ) For as long as a variety is exploited, it shall be prohibited to use, in the territory of the State [or of a contracting Party] ,a designation that is identical or confusingly similar to the denomination of that variety in relation to another variety of the same or a closely related species. The prohibition shall remain in force after the variety has ceased to be exploited where the denomination has acquired particular significance in relation to the variety.

    5. (b)The aforesaid prohibition shall also apply to denominations registered in Contracting Parties.

  5. Any person who offers for sale, sells or otherwise markets propagating material of a protected variety shall be obliged to use the denomination of that variety. This obligation shall also apply to the varieties referred to in [Article 13(5)(a)(ii)]10
  6. The obligation to use a denomination shall not end with the breeder's right that gave rise to it.
  7. Prior rights of third parties shall not be affected.
  8. When a variety is offered for sale or otherwise marketed, the use of the registered variety denomination in association with a trademark, trade name or other similar indication shall be permitted, subject to the denomination remaining easily recognizable.

　

Article 43 Grounds for Refusal

(1)(a)Without prejudice to the provisions of the Convention and the rules established by the Union, registration as the denomination of a variety shall be denied to a designation that

  1. does not conform to the provisions of Article 42,
  2. is not suitable for the identification of the variety, in particular owing to lack of distinctiveness or to linguistic unsuitability,
  3. is contrary to public policy or morality,
  4. consists exclusively of signs or indications that may serve, in the plant varieties and seeds sector, to designate kind, quality, quantity, intended purpose, value, geographical origin or time of production,
  5. is liable to mislead or to cause confusion as to the characteristics, value or geographical origin of the variety, or the links between the variety and persons such as the breeder or applicant, or
  6. is identical with, or confusingly similar to a denomination that designates, in the territory of the State or Contracting Party, an existing variety of the same or a closely related species, unless the existing variety is no longer exploited and its denomination has not acquired any particular significance.

(b)The Office shall name the species that are closely related within the meaning of subparagraph (a)(vi), above.

(2)(a)Without prejudice to the provisions of the Convention and the rules established by the Union, registration as the denomination of a variety shall also be denied to a designation containing an element that hampers or is liable to hamper the free use of the denomination in connection with the variety, in particular an element that under trademark law would be denied registration as a trademark for products bearing some relation to the variety.

(b)Such designations shall be refused if the holder of the rights in the element concerned has lodged with the Office a written objection to the proposed denomination.

　

Article 44 Registration Procedure

(1)(a)The denomination proposed for a variety shall be submitted together with the application for protection.

(b)Subject to payment of the prescribed fee and the inclusion of a provisional designation for the variety in the application, the applicant may have the procedure for the registration of the denomination deferred. In such a case, the applicant shall propose a denomination for the variety within thirty days from the date of receipt of a request addressed to him by the Office. If the applicant fails to submit a proposal within the prescribed period, the application shall be rejected.

(2)If the Office has found no ground for refusal under Article 43(1)(a) and knows of no ground for refusal under Article 43(2)(a) the proposed denomination shall be published in the Gazette. It shall also be communicated to the Authorities of the Contracting Parties.

(3)Any interested person may, in the three months following publication, file an objection to the registration of the denomination based upon any one of the grounds for refusal under Article 43. The Authorities of the Contracting Parties may submit observations.

(4)Objections and observations shall be communicated to the applicant, who shall have thirty days within which to reply.

(5)(a)The applicant may, on the basis of the objections and observations, submit a new proposal.

(b)Where the proposed denomination does not conform to the provisions of Article 43, the Office shall request the applicant to submit a new proposal within thirty days from the date of receipt of the notice. Failure to submit a proposal within the prescribed period shall entail the rejection of the application .

(6)(a)The new proposal shall be subject to the examination and publication procedure provided for in this Article.

(b)Where the new proposal does not conform to the provisions of Article 43, the Office may serve notice on the applicant to propose a denomination that does conform to the said provisions. Failure to respond shall cause the application to be rejected.

(7)Where objections or observations have been received, any decision of the Office shall be accompanied by a statement of its reasons for the decision; it shall be notified to the parties. The refusal of a proposed denomination shall likewise be accompanied by a statement of the reasons for the refusal.

2.The denomination shall be registered at the same time as the breeder's right is granted.

　

Article 45 Cancellation of a Denomination and Registration of a New Denomination

1.The Office shall cancel a registered denomination

  1. when it is established that the denomination has been registered despite the existence of a reason for refusal under Article 43(1)(a),
  2. when the holder so requests and demonstrates a legitimate interest, or
  3. when the holder or any other person produces a judicial decision prohibiting the use of the denomination in connection with the variety.

2.The Office shall inform the holder of the intended cancellation and request him to propose a new denomination within thirty days from the date of receipt of the request. If the variety is no longer protected, the proposal for a new denomination may be made by the Office.

3.The proposed new denomination shall be subject to the examination and publication procedure provided for in Article 44. The new denomination shall be registered and published once approved; the former denomination shall be canceled at the same time.

　

　

　

CHAPTER V         KEEPING THE BREEDER'S RIGHT IN FORCE

Article 46 Annual Fee

  1. The holder shall pay an annual fee [Alternative A: to keep his breeder's right in force] [Alternative B: for the whole period of protection].
  2. The fee shall fall due at the beginning of the calendar year to which it relates. It shall be payable by January 31.

　

Article 47 Maintenance of the Variety

  1. The holder shall be under an obligation to maintain the protected variety or, where relevant, its hereditary components for the whole duration of the breeder's right.
  2. At the request of the Office, he shall provide it or an authority designated by it, within the prescribed period, with the information, documents or material deemed necessary for verifying the maintenance of the variety.

　

Article 48 Verification of the Maintenance of the Variety

  1. The Office shall verify that the variety and, where relevant, its hereditary components are maintained throughout the period of protection.
  2. Where it is suspected that variety is not maintained and the suspicions are not removed by the information and documents submitted by the holder under Article 47(2), the Office shall order the verification of the maintenance of the variety under conditions specified by it. The verification shall include growing tests and other tests in which the material submitted by the holder is compared with the official description and the official sample of the variety.
  3. Where the verification suggests that the holder has failed to maintain the variety, the holder shall be heard before a decision to cancel the breeder's right is taken under Article 23(1).

　

Article 49 Supply of Samples

1.At the request of the Office, the holder shall provide the Office or any authority designated by the latter, within a prescribed period, with reasonable samples of the protected variety or, where relevant, of its hereditary components for the purpose of

  1. establishing or renewing the official sample of the variety, or
  2. undertaking the comparative examination of other varieties for the purposes of protection,

2.At the request of the Office the holder shall maintain or preserve the official sample on behalf of the Office.

　

　

PART IV      ENFORCEMENT

Article 50 Civil Remedies

1.Any person who

  1. without being entitled to do so performs acts that require the authorization of the holder, under Article 13,
  2. uses a designation whose use if prohibited by Article 42(4), or
  3. fails to use a variety denomination whose use is obligatory under Article 42(5)

may be sued by the holder or the holder of an exclusive license and all such relief shall be available to the latter as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

2.Subject to the provisions of this Law, the provisions of the law on the enforcement of rights under a [patent] shall apply mutatis mutandis to the enforcement of rights under a breeder's right.

　

Article 51 Criminal penalties

  1. Any infringing act committed with full knowledge of the infringement shall constitute an offense punishable with a fine of .. or imprisonment for a term of ..
  2. In the case of a second or subsequent offense, the penalties shall be ..
  3. The criminal procedures and penalties provided for in the [Patent Law] shall also available.

　

Article 52 Offenses in Relation to Variety Denominations

  1. Any person who, in full knowledge of the facts, uses a designation whose use is prohibited by Article 42(4), or fails to use a variety denomination whose use is obligatory under Article 42(5), shall be liable to a tine of ..
  2. In the case of a second or subsequent offense, the fine may be doubled.

　

　

PART V   FINAL AND TRANSITIONAL PROVISIONS

Article 53 Regulations

The Minister shall make regulations for the implementation of this Law.

　

Article 54 Cooperation in Examination

The Office shall be entitled to conclude administrative agreements for cooperation in the examination of varieties and the verification of the maintenance of varieties with the authorities of Contracting Parties or with their supervisory authorities.

　

Article 55 Amendment of Other Provisions

…

Article 56 Protection of Known Varieties

1.Notwithstanding Article 6, a breeder's right may also be granted for a variety that is no longer new on the date of entry into force of this Law in respect of the relevant species, subject to the following conditions:

  1. the application shall be filed within the year following the said date; and
  2. the variety must
  1. have been entered in the National Catalogue of Varieties Admitted to Trade or in a register of varieties held by a professional organization recognized by the Office, on the advice of the Council, for the purposes of this Article,
  2. have been the subject of a breeder's right in a Contracting Party, or be the subject of an application in a Contracting Party, provided that the application subsequently leads to the granting of the breeder's right, or
  3. be the subject of proof acceptable to the Office concerning the date on which the variety ceased to be new under the provisions of Article 6.

2.The duration of the breeder's right granted under this article shall be calculated from the date of the entry referred to in paragraph (1)(b)(i) , above, the date of the grant of the breeder's right referred to in paragraph (1)(b)(ii), above, or the date upon which the variety ceased to be new referred to in paragraph (1)(b)(iii) , above. Where relevant, the earliest of those dates shall be used.

3.Where a  right is granted under this Article, the holder shall be under the obligation to grant licenses on reasonable terms in order to allow the continuation of any exploitation initiated in good faith by a third party before the said filing.

　

Article 57 Entry into Force

This Law shall enter into force on …