3. Plant Variety Protection in the Seed Industry Law
3.1 The Enactment of the Law
The Law enacted on December 6, 1995 was entered into force on December 31, 1997 and last amended on January 21, 1999. Plant varieties of 27 botanical genera and species have been protected under the Law and the list is attached in Table 1 and recently 30 plant genera and species are entitled to plant variety protection and also the list is attached in continuous table. The Law of 1997 provides plant variety protection along the 1991 UPOV Act. The Law was composed of 9 Chapters, 176 Articles, 13 Addenda, and major provisions are protection for the new variety of plant, registration of variety denomination, management of variety performance, certification of the seed and control of the market seed.
Table 1. Plant Entitled to Variety Protection under the Seed Industry Law in 31 December 1997.
Crops |
Botanical names |
|
1 |
Rice |
Oryza sativa L. |
Table 1. [continued] Plant Entitled to
Variety Protection under the Seed Industry Law in May 1, 2000.
Crops |
Botanical names |
|
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 |
Oats Sweet potato Sesame Perilla Groundnut Rape Melon Broccoli Cauliflower Grapevine Yuzu(Citrus) Forsythia Hibiscus Lycoris Ajuga multiflora Lisianthus Petunia Godetia Impatiens Cyclamen Snapdragon Pansy Daisy Alstromeria Hyacinth Angelica gigas Astragalus membranaceus Ginseng Mushroom Orchardgrass |
Avena sativa L. Ipomoea batatas (L.) Lam. Sesamum indicum L. Perilla frutescens Brit. var. japonica Hara Arachis hypogaea L. Brassica napus L. Cucumis melo L. var. reticulatus Naud Brassica oleracea L. var. italica Plen. Brassica oleracea L. var. botrytis (L.) Alef. var. botrytis Vitis spp. Citrus junos Sieb ex Tanaka Forsythia spp. Hibiscus spp. Lycoris spp. Ajuga multiflora Bunge Eustoma grandiflorum Shinn Petunia hybrida Hort. Godetia grandiflora Lindl. Impatiens spp. Cyclamen persicum Mill. Antirrhinum majus L. Viola tricolor L. var. hortensis DC. Bellis perennis L. Alstroemeria spp. Hyacinthus spp. Angelica gigas Nakai Astragalus membranaceus Bunge Panax ginseng C.A.Meyer Pleurotus spp. Dactylis glomerata L. |
3.2 The Procedure of Plant Variety Protection
3.2.1 Filing of Application
According to the Law, the persons entitled to variety protection are breeder or his successor and if two or more persons have bred jointly, the entitlement shall be vested in them jointly. Where two or more applications relating to the same variety are filed on different dates, only the first applicant shall be entitled to the variety protection for the variety. Where two or more applications relating to the same variety are filed on the same date, only one person after agreed upon by all the applicants upon consensus shall be entitled to variety protection for the variety and, if no agreement is reached or no consensus is possible, none of the applicants shall be entitled to variety protection for the variety. Where a variety protection application is invalidated or withdrawn, such application shall be deemed never to have been filed. An applicant can file an application to the Minister of MAF comprising the following elements: the name and address of the applicant (agent); the name and address of the person who bred, or discovered and developed of variety; the identification of the botanical taxon (Latin and common name); the denomination of the variety; the filing date; technical description of the variety and a procedural description of the variety breeding; photographs and seed samples of a variety; and the proof of payment of the application fee. The procedure of filing application is attached on figure 2.
Figure 2. The Procedure of PVP from application to registration
and examination in particular.
3.2.2 Capacity of Foreigners to Enjoy Rights
Foreigners who have neither a domicile nor a place of business in the Republic of Korea shall not enjoy variety protection rights or other rights relating to a variety, except as provided for in any one of the following items:
where their country allows nationals of the Republic of Korea to enjoy variety protection rights or other rights relating to a variety under the same conditions as its own nationals;
where their country allows nationals of the Republic of Korea to enjoy variety protection rights or other rights relating to a variety under the same conditions as its own nationals in the case that the Republic of Korea allows their country's nationals to enjoy variety protection rights ; or
where they may enjoy variety protection rights or other rights relating to a variety according to a treaty or equivalents of a treaty.
3.2.3 Examination
The Examination by Examiner
The conditions for the protection of new variety of plant, oppositions to the grant of variety protection and applications for the registration of variety denomination under this Law shall be examined by examiner.
Publication of the Application
The Office shall publish the variety protection application, which has been registered in the register of variety protection applications in accordance with the provisions by publishing the application in the Variety Protection Gazette which is published every month (hereinafter referred to as an "Official Gazette"). Any person may, when the application is published, furnish the examiner with information, together with evidence, that the variety concerned can not protect under the Law.
Examination of Application
An examiner shall examine whether an applied variety meets the requirements for the variety protection, which are the Novelty, Domination and DUS (Distinctness, Uniformity and Stability). The examination shall be carried out by investigating database and documents and DUS testing of the applied variety with standard and similar variety in the field for two years in one location of National Seed Management Office (hereinafter referred to as an "NSMO"). The examiner may entrust a research institute, university, or any appropriate person with DUS testing to perform the examination.
Rejection Ruling
The examiner shall render a ruling to reject a variety protection application where it falls under reason for rejection which can not protect under the conditions of variety protection, first-to-file rule, public official, joint breeder, a person entitled to obtain a variety protection right, violation of a treaty. An examiner shall, when he intends to render a ruling on rejection, notify the applicant of the reasons and give him an opportunity to submit a written opinion designating a time limit for such submission.
Publication of the Application for Public Inspection
Where an examiner finds no reason for rejecting a variety protection application, he shall render a decision that the application is to be published. Where a decision to publish the application is made, it shall be transmitted a certified copy of the decision of publication of the application to the applicant and published the application in the Official Gazette. After publication of his application for public inspection, the applicant for variety protection shall have the right of provisional protection. Within sixty (60) days from the date of publication of an application, any person can file an opposition to the grant of variety protection with the Office, if an application falls under reason of opposition.
Decision on Grant of Variety Protection
Where no grounds for rejecting a variety protection application are established, the examiner shall render a decision that variety protection is to be granted for the application. When the decision on grant of variety protection has been rendered, it shall be transmitted a certified copy of the decision to the applicant, and published the decision in the Official Gazette.
3.3 The Variety Protection Right
3.3.1 The effect of Variety Protection Right
A variety protection right holder shall have an exclusive right to exploit the protected variety commercially and industrially such as propagating, producing, processing, assigning, leasing, exporting, importing, or offering for sale of the seeds to be protected. Also, a variety protection right holder has an exclusive right to exploit the harvested material of the protected variety and the product, which has been produced directly from the same material. A variety shall be deemed to be a protected variety: when the variety is essentially derived from the protected variety; and when the production of the seed requires the repeated use of the protected variety.
3.3.2 Scope of No Effect of the Variety Protection Right
The effects of the variety protection right shall not extend to exploitation of the protected variety for self-consumption and for non-commercial purposes; exploitation of the protected variety for experimental and research purposes; and exploitation of the protected variety for the purpose of breeding other varieties.
The Minister of the MAF may restrict a variety protection right for a variety, if a farmer collects the seeds of the variety for himself for the purpose of self-production. The scope of limiting the variety protection right when a farmer himself gathers seeds for the purpose of self-production shall be up to the maximum amount of seeds that can be planted on the land cultivated by the corresponding farmer.
3.3.3 Duration of the Variety Protection Right
The variety protection right shall expire at the end of the twentieth (20th) calendar year following the registration of its establishment; for trees and fruit trees, it shall expire at the end of the twenty-fifth (25th) year.
3.3.4 The Fees
Any person wish to have a variety protection right shall file an application on NSMO with the payment of the application fee. Application fee is 30,000 won (around $25 US). After passing the examination of the formal requirement, an applicant shall pay the growing test fee. Document test fee is 50,000won(around $42 US), and growing test fee is 500,000 won (around $420 US). A variety protection right holder shall pay an annual variety protection fee as attached in Table 2 for the entire duration of the protection right.
Table 2. Fees of application
and protection during protection period under the Seed Industry Law
Application : 30,000won
Examination : 50,000 won for document test
500,000 won for DUS test/1 year
Date from Registration of Establishment of the Variety Protection Right |
|
||
Class 1** |
Class 2 |
Class 3 |
|
Year 1 - 5 |
100,000 |
50,000 |
30,000 |
Year 6 - 10 |
150,000 |
75,000 |
45,000 |
Year 11- 15 |
225,000 |
112,000 |
67,000 |
Year 16 - 20 |
337,000 |
168,000 |
101,000 |
Year 21 - 25 |
506,000 |
253,000 |
151,000 |
* 1,100won/1 dollar
** Class 1 : Rice, Radish, Chinese cabbage, Pepper, Water melon, Apple, Pear
Class 2 : Tomato, Cucumber, Oriental melon, Carrot, Peach Lettuce, Onion, Welsh onion, Squash, Cabbage, Spinach Italian rye grass, Tall fescue, Red clover
Class 3 : Soybean, Maize, Potato, Barley, Wheat, Plain cactus
3.4 The Claims of Plant Variety Protection
The Variety Protection Appeal Committee was established in the MAF in order to conduct appeal processing on variety protection. In the Appeal Committee, there shall be the Chairman of the Variety Protection Appeal Committee and Committee Members of which one member is a standing member. The Variety Protection Appeal Committee shall be composed of eight or less members including the Chairman of the Committee. The Minister of the MAF nominates the Chairman of Appeal Committee.
Any person who is dissatisfied with a decision of the Variety Protection Appeal Committee may appeal to the Patent Court. A person objecting to a judgement of the Patent Court may appeal to the Supreme Court.
3.5 Advice of PVP for Minister of MAF
The Seed Council was established in the MAF to advise the Minister of the MAF on the matters concerning development of the seed industry, protection of the variety protection right, national list system, etc. The Seed Council is composed of eight or less council members including professional experts in each seed industry field and one lawyer.