RoC.,
TAIWAN, 2004
The Plant Variety and Plant Seed Act
Promulgated as “Plant Seed Act” on December 5, 1988 by the Presidential
Order no. Hua-tzung-1-yi-tzu 5591. Enforced on the same day.
Amended & promulgated on May 17, 2000 by the Presidential Order no.
Hua-tzung-1-yi-tzu 8900118390 for Article 2.
Amended & promulgated on January 30, 2002 by the Presidential Order no.
Hua-tzung-1-yi-tzu 09100016990 for Article 3, 4(1), 25(1), 28~30, 34, 35, 37,
41(1), 42~45.
Amended and promulgated as “Plant Variety and Seed Act” on 21 April
2004 by Presidential Order no. Hua-tzung-1-yi-tzu 09300074811. Enforced date as
prescribed by the Executive Yuan.
Chapter I
General Principles (Article 1-11)
Chapter II
Application for a Plant Variety Right (Article 12-21)
Chapter III
Plant Variety Rights (Article 22-32)
Chapter IV
Maintenance of Rights (Article 33-43)
Chapter V
Plant Seed Administration (Article 44-53)
Chapter VI
Penal Provisions (Article 54-60)
Chapter VII
Supplementary Provisions (Article 61-65)
Chapter I General Principles
Article
1
This Act is enacted to protect rights in plant varieties, facilitate
improvements in plant varieties, and implement a plant seed administration
system in order to promote farmers' interests and benefit agricultural
development. With respect to matters not provided for in this Act, other
applicable laws shall govern.
Article
2
"Competent authority" as referred to in this Act shall mean the
Council of Agriculture under the Executive Yuan in the case of the central
government, the special municipality government in the case of a special
municipality, and the county/city government in the case of a county/city.
Article
3
The terms as used in this Act shall have the following meanings:
1. “Variety” shall mean a plant grouping within a botanical taxon of
the lowest rank which expresses its characteristics through a single genotype
or a certain combination of genotypes, which can be distinguished by at least
one characteristic from any other plant grouping, and which remains unchanged
in its main characteristics when undergoing a designated method of
propagation.
2. “Transgenic technology” shall mean the transfer of an exogenous gene
into a plant cell using technologies such as genetic engineering or molecular
biology to cause a gene recombination phenomenon so that the plant expresses
the characteristic of the exogenous gene. Such technology, however, shall not
include traditional hybridization, mutation, in vitro fertilization,
cell and protoplast fusion wherein the cell and protoplast are within the same
family of plant taxonomy, somatic mutation, or chromosome doubling.
3. “Transgenic plant” shall mean a plant or seed that is obtained by
means of transgenic technology, as well as the progeny derived from such plant
or seed.
4. “Breeder” shall mean a person who engages in the work of breeding
plant varieties, or discovering and developing plant varieties.
5. “Plant seed” shall mean an entire plant, or any part thereof, that
is ready for propagating or planting.
[
Note: The Chinese word “種苗”is translated to “plant seed” for the sake of convenience, and refers not only to seeds, but also
to young plants, no matter whether they are sexually reproduced or
asexually reproduced. ]
6. “Plant seed enterprise” shall mean an enterprise that is engaged in
the business of breeding, propagation, importation, exportation, or sale of
plant seeds.
7. “Sale” shall mean the act of selling at a fixed price, or bartering.
8. “Promotion” shall mean the act of introducing or providing plant
seeds to
others for their use.
Article
4
Seed plants, ferns, and other plants designated as botanical taxons as
governed by this Act shall be published by the central competent authority.
Article
5
The “right to apply for a plant variety right” shall mean the right to
apply for a plant variety right in accordance with this Act.
The “holder of the right to apply for a plant variety right” shall mean
the breeder or any of the breeder’s assignees or heirs, unless otherwise
specified in this Act or as otherwise provided in an agreement between the
parties.
Article
6
The plant variety right and/or the right to apply for a plant variety right
may be assigned or inherited.
At the time of filing an application for a plant variety right, an assignee
or heir shall state the breeder’s name and submit supporting documents
concerning such assignment or inheritance.
The assignment or inheritance of a plant variety right or the right to
apply for a plant variety right shall not be binding as against a bona fide
third party, unless it has been recorded.
Article
7
No right to apply for a plant variety right shall be the subject of a
pledge.
If the plant variety right is used as the subject of a pledge, the pledgee
shall not exercise such plant variety right, unless an agreement between the
parties otherwise specifies.
Article
8
Unless otherwise specified in an agreement between the parties, the plant
variety right and the right to apply for a plant variety right for a plant
variety bred by, or discovered and developed by, an employee within the
performance of job duties shall belong to the employer; provided that the
employer gives the employee an adequate reward or remuneration.
A plant variety bred, or discovered and developed, within the performance
of job duties as referred to in the preceding Paragraph shall mean a plant
variety for which work was completed by an employee in an employment
relationship.
Where a funds provider invites another person to engage in the work of
breeding a plant variety, the agreement between the parties shall govern with
respect to the ownership of the plant variety right and the right to apply for
the plant variety right. If such agreement fails to specify the same, the plant
variety right and the right to apply for the plant variety right shall belong to
the breeder of the plant variety, provided that the funds provider shall be
entitled to make use of such plant variety.
In accordance with the requirements of Paragraph 1 or 3 of this Article,
where the plant variety right and the right to apply for the plant variety right
belong to an employer or the funds provider, the breeder shall enjoy the right
to have his or her name indicated as the breeder.
Article
9
Where a plant variety bred by, or discovered and developed by, an employee
is outside the performance of his or her job duties, the employee shall be
entitled to the plant variety right and the right to apply for the plant variety
right, provided that if the employee has made use of the employer’s resources
or experience while working on such plant variety, the employer may make use of
such plant variety in its business after paying reasonable remuneration to the
employee.
Where an employee completes a plant variety outside the performance of his
or her job duties, the employee shall give a written notification to the
employer of such fact; and, if necessary, the employee shall inform the employer
of the breeding process, or the discovery and development process, of the plant
variety.
If the employer fails to raise an objection to the employee within six
months of receipt of the written notification under the preceding Paragraph, the
employer shall not claim that such plant variety is completed within the
performance of the employee’s job duties.
Article
10
If the employer and the employee under the preceding Article have entered
into an agreement which provides that the employee shall not be entitled to the
plant variety right and/or the right to apply for the plant variety right, such
provision shall be null and void.
Article
11
An application for a plant variety right may not be accepted from a
national of a foreign country where such applicant’s country and the Republic
of China (R.O.C.) are not parties to an international treaty or members of an
organization for the protection of plant varieties; where there is no treaty or
agreement for the mutual protection of plant varieties between such foreign
country and the R.O.C.; where no agreement for the mutual protection of plant
varieties has been concluded by and between organizations or institutions of the
foreign country and those of the R.O.C. and has been approved by the central
competent authority; or where the applicant’s country does not accept
applications for protection of plant variety
rights from nationals of the R.O.C.
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Chapter II
Application for a Plant Variety Right
Article
12
A plant variety that has the characteristics of novelty, distinctness,
uniformity, and stability, as well as an appropriate plant variety denomination,
may be the subject of an application for a plant variety right in accordance
with this Act.
“Novelty” as referred to in the preceding Paragraph shall mean that
prior to the date of filing of the application for a plant variety right, no
plant seeds and no harvested material of such plant variety have been sold or
promoted solely by, or with the consent of, the holder of the right to apply for
the plant variety right either inside the R.O.C. for longer than one year or
outside the R.O.C. for longer than six years in the case of trees or perennial
vine plants, or for longer than four years in the case of all other plant
species.
“Distinctness” as referred to in Paragraph 1 shall mean that a plant
variety can be distinguished on the basis of one or more recognizable and
articulable characteristics from any other plant varieties that have been in
general circulation, or that have obtained a plant variety right either inside
or outside the R.O.C., prior to the date of filing the application for the plant
variety right.
“Uniformity” as referred to in Paragraph 1 shall mean that, with the
exception of predictable natural variations, the characteristics of individual
plants of the plant variety exhibit uniformity in comparison with each other.
“Stability” as referred to in Paragraph 1 shall mean that the main
characteristics of the plant variety are able to remain unchanged after repeated
propagation, or after a number of cycles of propagation, through a designated
method of propagation.
Article
13
A plant variety denomination under the preceding Article shall not consist
of the following:
1. such denomination is expressed solely in the form of a number or
numbers,
2. such denomination is identical with or similar to the denomination of
another plant variety within the same species or a closely related species,
3. such denomination is likely to cause confusion or false identification
as to the characteristics of the plant variety or the identity of the breeder,
or
4. such denomination is contrary to public order and good custom.
Article
14
To apply for a plant variety right, the applicant shall submit to the
central competent authority a duly completed application form together with a
written description of the plant variety and relevant supporting documents.
The written description of the variety shall state the following:
1. the name of the applicant, the applicant’s permanent and temporary
residences, or in the case of a juristic person or organization, its name, its
office location or place of business, and the name of its legal representative
or manager and his or her permanent and temporary residences;
2. the botanical taxon of the plant variety,
3. the denomination of the plant variety,
4. the source of the plant variety,
5. the characteristics of the plant variety,
6. the process of breeding and discovery of the plant variety,
7. a test report on the cultivation of the plant variety,
8. matters to which one must pay attention when cultivating the plant
variety, and
9. other related matters.
A plant variety denomination shall be written in Chinese, together with the
denomination in Roman letters. For varieties bred in foreign countries, the
plant variety denomination shall be written in Roman letters and Chinese.
Article
15
Where two or more persons jointly own the right to apply for a plant
variety right, the application shall be jointly filed by such persons.
Article
16
The filing date of an application for a plant variety right shall be the
day on which a duly completed application form, a written description of the
plant variety, and the relevant supporting documents are submitted.
If not all required documents are submitted for an application for a plant
variety right, or if such documents are incomplete or deficient in their
statements of information, the central competent authority shall notify the
applicant to remedy such deficiency within a specified time limit stating the
reasons for such deficiency. If a deficiency fails to be remedied within such
time limit, the application shall not be accepted. If a deficiency is remedied
within such time limit, the date of remediation shall be deemed to be the filing
date.
Article
17
An applicant for a plant variety right in the R.O.C. may claim a priority
right on the basis of the applicant’s first application for a plant variety
right duly filed in a foreign country as long as the foreign country and the
R.O.C. mutually recognize priority rights, and the R.O.C. application is filed
within twelve months from the day immediately following the filing date of the
first application for the same plant variety.
An applicant claiming the priority right in accordance with the
requirements of the preceding Paragraph shall state such claim at the time of
filing the application in the R.O.C., and shall submit the documents issued by
the government of the foreign country certifying the government’s acceptance
of such foreign application within four months from the date immediately
following the filing date in the R.O.C.
Applicants who fail to comply with the above requirements shall lose the
right to claim priority in the R.O.C.
The priority date of an applicant who claims a priority right shall govern
with respect to examination of whether the plant variety right application meets
the requirements for a plant variety right.
Article
18
Where two or more persons separately file applications for a plant variety
right with respect to the same plant variety, the first to file the application
shall prevail, provided that this provision shall not apply where the priority
date claimed by a latter applicant precedes the filing date of the first
applicant.
If a filing date and a priority right date under the preceding Paragraph
are the same date, the applicants shall be notified to reach an agreement on
this issue. If the applicants fail to reach an agreement on this issue, none of
these applicants shall be granted a plant variety right.
Article
19
When accepting an application for a plant variety right, the central
competent authority shall make public the following information within one month
from the day immediately following the filing date of such application:
1. the serial number and filing date of the application,
2. the applicant’s name or title, and address;
3. the denomination of the plant variety, and the botanical taxon to which
the plant variety that is the subject of the application belongs; and
4. other required matters.
After obtaining a plant variety right, the applicant may claim appropriate
remuneration from any persons whom the applicant has notified in writing after
his or her application for a plant variety right has been made public and who
continue to make commercial use of such plant variety after such notification
and before approval and publication of the plant variety right.
The applicant also may claim appropriate remuneration under the preceding
Paragraph from any persons who continue to make commercial use of such plant
variety prior to approval and publication of the plant variety right when aware
that the application for a plant variety right has been made public.
The right to claim appropriate remuneration under the preceding two
Paragraphs shall lapse if not exercised within two years of publication of the
plant variety right.
Article
20
If necessary, during the examination of the applications for plant variety
rights, the central competent authority may notify the applicants to submit
within a specified time limit the materials necessary for examining plant
variety characteristics, as well as other relevant information or materials.
After examination of an application for the plant variety right, the
central competent
authority shall use the examination results to produce a written
decision clearly stating the reasons for the decision, and shall notify the
applicant of such decision. Plant varieties that are examined and determined to
meet the requirements for a plant variety right shall be approved and published
as plant variety rights.
Article
21
The central competent authority shall organize a plant variety evaluation
committee to examine applications, as well as nullification and cancellation
actions concerning plant variety rights.
The evaluation committee under the preceding Paragraph shall be made up of
five to seven members. The central competent authority shall invite experts or
specialists who have extensive researches or experiences concerning plant
variety examination regulations, plant cultivating techniques, or other fields,
to serve as members of the committee. The organization regulations of this
committee and the examination procedures shall be prescribed by the central
competent authority.
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Chapter III
Plant Variety Rights
Article
22
With respect to an application for a plant variety right, the plant variety
right shall take effect as of the date of approval and publication of the plant
variety right.
Article
23
The term of a plant variety right for a tree or a perennial vine plant
shall be twenty-five years from the date of approval and publication of the
plant variety right. The term of the plant variety right for all other plant
species shall be twenty years from the date of approval and publication of the
plant variety right.
Article
24
The holder of a plant variety right shall have the exclusive right to
preclude others from engaging, without the consent of the holder, in the
following acts with respect to plant seeds to which the holder has the plant
variety right:
1. production or propagation,
2. conditioning for the purpose of propagation,
3. offering for sale,
4. selling or otherwise marketing,
5. importing or exporting, or
6. holding for any of the purposes in the preceding five Subparagraphs.
The holder of a plant variety right shall have the exclusive right to
preclude others from
engaging, without the consent of the holder, in the acts as set forth in the
Subparagraphs of the preceding Paragraph with respect to the harvested
material obtained through use of plant seeds of such plant variety.
The holder of a plant variety right shall have the exclusive right to
preclude others from engaging, without the consent of the holder of the plant
variety right, in the acts as set forth in the Subparagraphs of Paragraph 1 with
respect to products obtained directly through use of the harvested material
under the preceding Paragraph, provided that this provision shall apply only to
plant species published by the competent authority.
The exercise of the rights as referred to in the preceding two Paragraphs
shall be limited to where the holder of the plant variety right has had no
reasonable opportunity to exercise his or her rights with respect to the acts in
the Subparagraphs of Paragraph 1.
Article
25
The protection of plant variety rights under the preceding Article shall
extend to the following dependent varieties:
1. a variety essentially derived from a variety protected by the plant
variety right, and where such protected variety is not essentially derived
from another variety,
2. a variety not clearly distinguishable in comparison with a variety
protected by the plant variety right, and
3. a variety which requires repeated use of a variety protected by the
plant variety right in order to be produced.
The protection of a plant variety right shall not extend to a dependent
variety whose existence was a matter of common knowledge before the amendment to
this Act takes effect.
A “variety essentially derived” from another variety as referred to in
Subparagraph 1 of Paragraph 1 shall meet the following requirements:
1. the variety is derived from an initial variety, or from a variety that
is essentially derived from an initial variety;
2. the variety is clearly distinguishable in comparison with the initial
variety, and
3. the variety, except for differences as a result of the act of
derivation, retains the characteristics expressed by the genotype or
combination of genotypes of the initial variety.
Article
26
The protection of a plant variety right shall not extend to any of the acts
in the following Subparagraphs:
1. acts by an individual for non-profit purposes,
2. acts for experimental or research purposes,
3. acts for the purpose of breeding other varieties, but not including acts
for the
purpose of breeding dependent varieties set forth in Paragraph 1 of the
preceding Article;
4. acts by farmers of keeping, for the farmer’s own use, plant seeds of a
variety protected by a plant variety right or of the harvested material
obtained from plant seeds of dependent varieties as set forth in Subparagraph
1 and Subparagraph 2 of Paragraph 1 of the preceding Article;
5. acts, at a farmer’s request and for the purpose of providing the
farmer with propagating material, of engaging in the conditioning and nursing
of harvested material obtained from the propagating material of a variety
protected by a plant variety right, or of its dependent variety;
6. acts of domestically selling or otherwise circulating any material of a
variety protected by a plant variety right, or its dependent variety, as
undertaken voluntarily by or with the consent of the holder of the plant
variety right, but not including acts of further propagation of such protected
variety; or
7. acts with respect to any material derived from the material set forth in
the preceding Subparagraph, but not including acts of further propagation of
such protected variety.
Subparagraphs 4 and 5 of the preceding Paragraph shall apply only to plant
species published by the central competent authority for the purposes of
ensuring food security.
The “material” as referred to in Paragraph 1 shall mean any propagating
material, any harvested material, and any products made directly from the
harvested material, of a plant variety. Such harvested material shall include
entire plants or parts of plants.
Acts under Subparagraphs 6 and Subparagraphs 7 of Paragraph 1 shall not
include acts of exporting propagating material of such protected variety to a
country that does not protect the plant genus or species to which the plant
variety belongs, provided that this provision shall not apply where the purpose
is for final consumption.
Article
27
A plant variety right may be licensed to a third party to exercise the
same.
The license of a plant variety right to others or the creation of a pledge
on a plant variety right shall not be binding as against a bona fide third
party, unless it has been recorded with the central competent authority.
Article
28
Without the consent of the holders of two-thirds or more of the interested
shares in a plant variety right, no joint owner shall assign his or her own
share, license others to exercise such share, or create a pledge on such share;
provided, however, that if the parties have agreed otherwise, the terms of such
agreement shall govern.
Article
29
No holder of a plant variety right shall abandon his or her rights without
the consent of his or her licensees or pledgees.
Article
30
In order to cope with substantial national situations, or to make
non-profit use for the enhancement of the public interest, or in the case of an
applicant's failure to reach a licensing agreement with the holder of a plant
variety right under reasonable commercial terms within a considerable period of
time, the central competent authority may grant a compulsory license to exercise
such plant variety right upon request, provided that such license shall be
exercised mainly for the purposes of satisfying domestic market demand.
Compulsory licenses shall be nonexclusive and nontransferable licenses
only. The term of a compulsory license shall be clearly specified in the
license; however, in no event shall the term exceed four years.
In the absence of the conditions set forth in Paragraph 1, the central
competent authority still may grant a compulsory license for the exercise of a
plant variety right to the person applying for a compulsory license upon receipt
of an request from the person in the event that the holder of such plant variety
right has engaged in restricting competition or in unfair competition as
confirmed by a court decision or by a decision of the Fair Trade Commission of
the Executive Yuan.
Upon receipt of a written request for a compulsory license, the central
competent authority shall serve a copy of the request on the holder of the plant
variety right, requesting the holder of the plant variety right to make a
defense within three months. If no defense is filed within the specified time
limit, the central competent authority may decide the matter by its authority.
A compulsory license with respect to a plant variety right shall not
preclude other persons from obtaining a right to exercise such plant variety
right.
The compulsory licensee shall give the holder of the plant variety right
appropriate remuneration. In the case of a dispute over the amount of such
remuneration, the amount shall be decided by the central competent authority.
The compulsory license shall be transacted together with the business
pertaining to the compulsory license for assignment, inheritance, license, or
pledge creation.
When the reason for the compulsory license ceases to exist, the central
competent authority may cancel the compulsory license upon request.
Article
31
When the compulsory licensee, having obtained the right to exercise a plant
variety right in accordance with the requirements of the preceding Article,
violates the purpose of the compulsory license, the central competent authority
may, upon an request filed by the holder of the plant variety right or ex
officio, nullify such compulsory license.
Article
32
Regardless of whether the term for a plant variety right has expired, any
person who sells or otherwise markets a plant variety that currently is
protected by, or at one time was protected by a plant variety right, shall be
required to use the denomination
of the plant variety for which the corresponding plant variety right
was obtained.
Where such plant variety denomination is to be indicated together with a
trade name or a trademark, such denomination shall be clearly recognizable as
the plant
variety denomination.
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Chapter IV
Maintenance of Rights
Article
33
In order to perform follow-up testing to determine whether the plant
variety protected by a plant variety right still maintains its original
characteristics, the central competent authority may require the holder of the
plant variety right to provide an adequate quantity of plant seeds of such
variety or other necessary information.
Article
34
The central competent authority may appoint its subordinate agencies or
entrust other agencies or institutions to conduct the examination and follow-up
testing of plant variety characteristics set forth in Article 20 and the
preceding Article. The regulations governing such appointment or entrustment
shall be prescribed by the central competent authority.
Article
35
If the denomination of the plant variety fails to meet the requirements of
Article 13, the central competent authority may require the holder of the plant
variety right to propose a suitable denomination within a specified time period.
Article
36
A plant variety right shall expire under any of the following
circumstances:
1. in the case of the final date of the term of a plant variety right, on
the day immediately following the final date of the term;
2. in the case of voluntary abandonment of the plant variety right, on the
date that the central competent authority receives a written declaration from
the holder of a plant variety right to such effect, unless another date of
abandonment is specified in writing; then in that case, on such date; or
3. in the case the holder of a plant variety right fails to pay the annual
fee within a time period for remedial payment, on the date immediately
following the final date of the annual payment term.
In the case of death of the holder of a plant variety right without a
person claiming to be an heir, the plant variety right shall pass to the
ownership of the national treasury in accordance with the requirements of
Article 1185 of the Civil Code.
Article
37
The
central competent authority shall nullify a plant variety right, either upon
request or ex officio, under either of following circumstances:
1. the plant variety protected by a plant variety right fails to meet the
requirements of Article 12, or
2. the plant variety right was obtained by a person who is not entitled to
the right to apply for the plant variety right.
The central competent authority may cancel a plant variety right, either
upon request or ex officio, under any of the following circumstances:
1. after the right is obtained, such plant variety protected by the plant
variety right no longer meets the requirements of uniformity or stability
under Article 12;
2. the holder of a plant variety right fails to fulfill his or her
obligations in accordance with the requirements of Article 33 without good
cause, or
3. the holder of a plant variety right fails to propose a suitable
denomination under Article 35 without good cause.
Upon nullification or cancellation of a plant variety right, the plant
variety right certificate shall be returned within a specified time limit. If
such certificate fails to be returned upon demand, such certificate shall be
recorded and published as invalid.
Article
38
Any person who believes that a plant variety right falls within any of the
circumstances set forth under Paragraph 1 or Paragraph 2 of the preceding
Article may submit to the central competent authority a request for
nullification or cancellation of such plant variety right together with a
written statement explaining the reasons for the request and any supporting
evidence, provided that only the holder of the right to apply for such plant
variety right may request nullification under Subparagraph 2 of Paragraph 1 of
the preceding Article.
If a plant variety right is nullified in accordance with Paragraph 1 of the
preceding Article, such plant variety right shall be deemed to be nonexistent
from its beginning.
Article
39
The central competent authority shall publish any amendments to, compulsory
license or license to, creation of pledges on, and expiration, nullification, or
cancellation of, a plant variety right.
Article
40
In the event of an infringement on a plant variety right, the holder of the
plant variety right or his or her exclusive licensee may demand the removal of
the infringement and the prevention of any threat of infringement. In addition,
the holder of the plant variety right or his or her exclusive licensee may claim
damages against any persons who intentionally or negligently infringe on the
plant variety right.
When a holder of the plant variety right or an exclusive licensee of the
plant variety
right seeks remedies in accordance with the requirements of the
preceding Paragraph, he or she may request the destruction of any products
infringing on the plant variety right or any material or equipment involved in
the commission of the infringement, or request other necessary measures.
In the case of an infringement of the right to have the breeder’s name
indicated, the breeder may request that his or her name be indicated as the
breeder, or may request other measures necessary for restoring his or her
reputation.
The rights to seek remedies provided for in this Article shall lapse if not
exercised within two years of the date on which the claimant becomes aware of
the infringing act and the identity of the person required to give remuneration,
or if longer than ten years have elapsed from the time the infringing acts.
Article
41
When claiming damages in accordance with the requirements of the preceding
Article, either of the options under the following Subparagraphs may be used to
calculate the amount of damages:
1. In accordance with the requirements of Article 216 of the Civil Code, if
no evidentiary methods can be provided to prove the damage, the holder of a
plant variety right or his or her exclusive licensee may use the difference
between the profits actually made by the right holder after the infringement
on the plant variety from profits normally expected from exercise of such
variety or its dependent variety.
2. Profits that the infringer actually earned as a result of the infringing
activities; where the infringer is unable to produce proof of costs and/or
necessary expenses, the entire income derived from the infringer’s sales of
the infringing articles may be deemed to be the infringer’s profits.
In addition to the requirements set forth in the preceding Paragraph, the
holder of the plant variety right or his or her exclusive licensee may claim
separately for an appropriate amount of remuneration corresponding to losses to
his or her respective business reputation as a result of the infringement.
Article
42
Prior to the final decision on the nullification or cancellation actions of
a plant variety right, the adjudication on all civil proceedings concerning such
plant variety right shall be suspended.
Article
43
An unrecognized foreign juristic person or organization may institute civil
proceedings in respect of the matters governed by this Act provided that the
juristic person or organizations of the R.O.C. are entitled to the same rights
under treaties, agreements, national laws, or customary practices of the
applicant’s home country. The above provision also shall apply to plant
variety right protection agreements that are concluded by and between the
organizations or institutions of the R.O.C. and those of the foreign country and
that are approved by
the central competent authority.
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Chapter V Plant
Seed Administration
Article
44
Unless a plant seed enterprise has obtained approval from the special
municipality or county/city competent authority and has been issued a plant seed
enterprise registration certificate, such enterprise shall be prohibited from
engaging in business operations.
The qualification requirements and facility standards for plant seed
enterprises shall be prescribed by the central competent authority.
Article
45
The plant seed enterprise registration certificate shall indicate the
following matters:
1. the registration certificate number and the date, month, and year of
registration;
2. the name and address of the plant seed enterprise, and the name of the
person responsible for such enterprise;
3. the scope of operations of, and the categories of plant seeds involved
in, the enterprise’s business;
4. the amount of capitalization of the enterprise,
5. in the case of persons engaged in propagation work, the address of any
related location where the propagation work takes place;
6. the term of validity of the registration certificate, and
7. other related matters.
If a change occurs with respect to the matters under Subparagraph 2 or
Subparagraph 3 of the preceding Paragraph, an application for amendment to the
enterprise’s registration shall be filed with the government authority agency
that approved and issued the original registration certificate within thirty
days of the date of such change. The competent authority may order an enterprise
that has failed to apply for an amendment to its registration within such time
limit to amend its registration within a new time limit.
Article
46
The following information shall be marked, mainly in Chinese together with
the denomination of the plant variety in Roman letters, on the packaging,
containers, or labels of a plant seed sold by a plant seed enterprise:
1. the name and address of the plant seed enterprise,
2. the botanical taxons of the plant seeds and the Chinese variety
denomination of the plant seed, or the plant variety right registration
certificate number;
3.
the place of production,
4. weight and quantity, and
5. any other matters required by the central competent authority.
With respect to seeds under Subparagraph 2 of the preceding Paragraph,
information concerning the germination percentage and testing date shall be
marked; in the case of grafted plants, information concerning the botanical
taxons and denominations of the scion as well as the stock shall be marked.
Article
47
Where a plant seed enterprise fails to start business operations within one
year after its registration is approved, or where an enterprise, after having
started business operations, has ceased business operations for a period of one
year without good cause, the special municipality or county/city competent
authority may cancel the registration of the enterprise.
Article
48
The registration certificate shall be effective for a term of ten years.
Plant seed enterprises that need to continue their business operations after the
end of such term shall file an application for re-issuance of the registration
certificate, together with the original registration certificate, within three
months prior to the final date of such term. If a plant seed enterprise fails to
file such application or otherwise fails to meet the requirements of this Act,
the enterprise’s original registration certificates shall be published by the
competent authority as invalid.
Article
49
Within thirty days of ceasing business operations, a registered enterprise
shall file with the special municipality or county/city competent authority an
application to record the cessation of its business operations, and shall submit
the enterprise’s invalid registration certificate for cancellation. If such
enterprise fails to file such application or make such submission, its
registration shall be cancelled by the competent authority ex officio.
Article
50
The competent authority may send inspectors to inspect whether a plant seed
enterprise meets the qualification requirements and facility standards, as well
as the labeling of plant seeds sold by the enterprise. No enterprise shall
refuse to allow, avoid, or obstruct the inspection. If the inspection results
reveal any inconformity with the requirements and standards set forth in
Paragraph 2 of Article 44, the competent authority shall notify the enterprise
to correct the noncompliance within a specified time limit.
Inspection personnel shall present official identification when performing
official duties.
Article
51
Generally the free importation and exportation of plant seeds, their
harvested material, and products made directly from their harvested material is
permitted; certain plant seeds, however, may be subject to import and/or export
restrictions and/or prohibitions under international treaties or trade
agreements, or for the purpose
of protecting rights in such plant varieties, or due to public safety,
sanitation, environmental protection, ecological protection, or policy
needs.
With respect to plant seeds that are subject to the import and/or export
restrictions and/or prohibitions under the preceding Paragraph, the regulations
governing botanical taxons, quantities, areas or regions, time periods,
importation and exportation of plant seeds, their harvested material, and
products made directly from their harvested material shall be published by the
central competent authority after consulting with relevant authorities.
Article
52
Without the approval of the central competent authority, the importation or
exportation of transgenic plants is prohibited. The regulations governing
approval for the importation or exportation of transgenic plants shall be
prescribed by the central competent authority.
Unless the applicant has obtained approval from the central competent
authority to conduct field testing, has passed the field examination, and has
submitted the documentation of the approval as issued by the central competent
authority concerning the main purposes as declared in the application, a
transgenic plant imported from abroad or bred domestically is prohibited from
domestic promotion or sale.
The testing methods, application and examination procedures, relevant
administrative regulations, and the standard rates of the testing fees of the
field testing referred to in the preceding Paragraph shall be prescribed by the
central competent authority.
Due to food safety and environmental safety, transgenic plants shall be
appropriately packaged and labeled for import, export, transport, marketing, and
sale. The packaging and labeling regulations shall be prescribed by the central
competent authority.
Article
53
No imported plant seed shall be used for any purposes other than the
declared purpose of importation.
In order to prevent any imported plant seeds from being used for purposes
other than the declared one, the central competent authority may order the
importer to undertake any necessary procedures such as chemical treatment prior
to importation.
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Chapter VI
Penal Provisions
Article
54
Any person in any of the following circumstances shall be fined up to five
million New Taiwan Dollars but not less than one million New Taiwan Dollars:
1. importing or exporting in violation of the mandatory requirements
governing approval under Paragraph 1 of Article 52,
2. promoting and sale without prior field testing in violation of Paragraph
2 of Article 52, or
3. conducting field testing in violation of the mandatory requirements
governing administrative regulations of Paragraph 3 of Article 52.
Any plant illegally imported or exported, promoted, sold, or field-tested
as set forth in the preceding Paragraph may be confiscated or destroyed.
Article
55
Any person who imports or exports plant seeds, their harvested material, or
products made directly from their harvested material in violation of the
regulations published in accordance with Paragraph 2 of Article 51 shall be
fined up to one million five hundred thousand New Taiwan Dollars but not less
than three hundred thousand New Taiwan Dollars; and such plant seeds, their
harvested material, and products made directly from their harvested material may
be confiscated.
Article
56
Any person in either of the following circumstances shall be fined up to
three hundred thousand New Taiwan Dollars but not less than sixty thousand New
Taiwan Dollars:
1. violating the requirements of Article 32 by failing to use the
denomination for a variety for which a plant variety right has been obtained,
or
2. violating of the requirements of Paragraph 1 of Article 44 by engaging
in business operations without prior registration.
When imposing a fine set forth in Subparagraph 2 of the preceding
Paragraph, the competent authority may also order an enterprise to cease its
business operations. Any enterprise that fails to cease its business operations
shall be fined based on the number of months of such violation.
Article
57
Any enterprise that fails to meet the qualification requirements or
facility standards for plant seed enterprises under Paragraph 2 of Article 44
within the time limit for correction as specified by the competent authority
under the requirements of Paragraph 1 of Article 50 shall be fined up to one
hundred fifty thousand New Taiwan Dollars but not less than thirty thousand New
Taiwan Dollars. Any enterprise in gross violation may be ordered to cease all
business activities
for up to six months. If a violating enterprise fails to correct its
violation within three months after resuming its business operations, the
matter may be reported to the higher competent authority for approval of the
nullification of the enterprise’s registration.
Article
58
Any person in any of the following circumstances shall be fined up to one
hundred thousand New Taiwan dollars but not less than twenty thousand New Taiwan
dollars:
1. violating the requirements of Article 46 for unclear, incomplete, or
false labeling, or failure to label;
2. refusing to allow inspection, avoiding inspection, or obstructing the
work of the inspectors under Paragraph 1 of Article 50; or
3. violating Paragraph 1 of Article 53.
Article
59
Any enterprise that fails to file an application for an amendment to its
registration within the time limit specified by the competent authority under
the requirements of Paragraph 2 of Article 45 shall be fined up to fifty
thousand New Taiwan Dollars but not less than ten thousand New Taiwan Dollars.
Article
60
Except for fines set forth in Article 54 and Article 55, which shall be
imposed by the central competent authority, all other fines under this Act shall
be imposed by the special municipality or county/city competent authority.
If a fine under this Act fails to be paid within the time limit for
payment, such fine shall
be submitted for compulsory enforcement in accordance with this Act.
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Chapter VII
Supplementary Provisions
Article
61
An applicant for a plant variety right shall pay the application fee at the
time of filing such application. Upon approval of a plant variety right, the
holder of the plant variety right shall pay the certificate fee and the annual
fee. No plant variety right shall be published, nor shall any plant variety
certificate be issued, until the annual fee for the first year and the
certificate fee are paid.
The annual fee for the second year and subsequent years shall be paid prior
to the end of the term. If such annual fee fails to be paid within the time
period for payment, a remedial payment of the annual fee may be made within six
months of the final date of the term; provided that the annual fee shall be paid
at a rate of twice of what is otherwise required for timely payment of the
annual fee.
The examination fee required for examination of characteristics under
Paragraph 1 of Article 20 shall be paid by the applicant. The examination fee
required for the follow-up testing of characteristics under Article 33 shall be
paid by the holder of
the plant variety right.
The applicant or the person making a request shall pay the registration fee
as well as any application or request fee at the time of filing an application
or request under Paragraph 2 of Article 27, Paragraph 1 of Article 44, and
Article 38.
The standard rates for the various application or request fees, certificate
fees, annual fees, and examination or testing fees with respect to plant variety
rights shall be prescribed by the central competent authority.
Article
62
An application for a plant variety right that has not been examined and
approved
prior to the date on which this amended Act takes effect shall be processed
in
accordance with the requirements of this amended Act.
Plant variety rights already in effect on the date this amended Act takes
effect
shall be treated in accordance with the requirements of this amended Act.
Article
63
A plant seed enterprise that has obtained a plant seed enterprise
registration certificate prior to the date on which this amended Act takes
effect shall reapply for a plant seed enterprise registration certificate within
two years of the date on which a publication is made by the central competent
authority notifying such enterprise to reapply for the same. If such enterprise
fails to file a reapplication within such time period, its registration
certificate shall become invalid, and its registration certificate shall be
recorded as invalid by the central competent authority. Moreover, if such
enterprise fails to apply for a re-issuance of its registration certificate and
yet continues to engage in business operations, such enterprise shall be fined
in accordance with the requirements of Subparagraph 2 of Paragraph 1 under
Article 56.
Article
64
The Enforcement Rules for this Act shall be prescribed by the central
competent authority.
Article
65
The effective date of this Act shall be prescribed by the Executive Yuan.
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Translated
by Kirsten GULLIXSON, Warren H.J. KUO and Ming-Yan SHIEH
October
25, 2004
kgullixson@hotmail.com
whjkuo@ntu.edu.tw
shieh@ntu.edu.tw