To be presented in the 3rd Asian regional technical meeting for plant variety protection organized by UPOV in cooperation with MAF of government of Korea, from July 2-5 in Seoul. Korea.       Ó Dr. K.J. Choi

 

The Status of the Protection of New
Varieties of Plants in Korea

 Dr. Choi, Keun Jin

Examination Officer/National Seed Management Office/MAF, The Republic of Korea

Tel. +82-343-467-0190, Fax. +82-343-448-1216, E-mail : kjchoi@seed.go.kr

THE OUTLINE OF PLANT VARIETY PROTECTION IN KOREA
PLANT VARIETY PROTECTION SYSTEM
PROCEDURE OF APPLICATION AND REGISTRATION FOR PVP
EXAMINATION
THE VARIETY PROTECTION RIGHT
APPEAL
THE IMPORTANCE OF PVP IN KOREA
REFERENCES
LISTS OF PROTECTED SPECIES/GENUS

 

THE OUTLINE OF PLANT VARIETY PROTECTION IN KOREA

 1. Seed Industry Law

  The plant variety protection system along with the 1991 UPOV Act was introduced in Korea with the enactment of Seed Industry Law of 1997. This Law was composed 9 Chapter, 176 Article, 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, which was established and published on December 6, 1995, and last revised on January 26, 2001. The purpose of the Law is to develop seed industry and to contribute to stability of agriculture, forestry, and fishery by enacting provisions on protection of the breeder's right, management of variety performance of major crops and seed certification.

  The National Seed Management Office(NSMO)/MAF has been set up as an implementing agency for the Plant Variety Protection in Korea, which was established as National Seed production and Distribution Office in 1974, and  reorganized and renamed as National Seed Management Office in 1998.

 2. Plant Patent

   Plant patents are available only for asexually reproduced or reproducible varieties that are new and distinct under the "The Korean Industrial Property Laws". It is prescribed in the rules of legislation of the article 31 that any person who invents a new and distinct variety of plant which reproduces itself asexually may obtain a plant patent therefor. The executing agency is division of agriculture, forestry and fishery of Korean Industrial Property Office (KIPO) located in Daejeon.

 

[Table 1] Difference between plant variety protections enacted with Seed Industry Law and plant patent enacted with Industrial Property Law for the protection of new varieties of plant in Korea.

 

PVP law

Patent law

Purpose

Agricultural development

   Industrial development

Object

Plant variety

   Industrial invention

Scope of plant

Sexual and Asexual

   Asexual

Examination

Document, Field test

   Document

Conditions

Novelty, Denomination

Distinctness, Uniformity,

Stability

   Applicability for Industry

   Novelty, Inventive Step

Grant scope

Experiment

Farmers use

By scope of law

Exception of Rights

Exception of Rights

   By scope of application

   Exception of Rights

   Require the authorization

Period

2025 years

   20 years      

 

 

 

3. 50th UPOV Member Country

  In 1999, the Government of Korea asked the UPOV Council to advise in respect of the conformity of Korean Seed Industry Laws with the Article 34 of 1991 UPOV Convention. UPOV Council sent to the Government of Korea of positive advice that the instrument of accession may be deposited. Korean government submitted amended Law to the parliament, and the Law was passed in January 2001. Subsequently, the Korean government deposited the instrument of accession of the 1991 UPOV Convention on December 7th, 2001 and was joined on January 7th, 2002 as a 50th member country of UPOV.

 

PLANT VARIETY PROTECTION SYSTEM

1. Plants to be protected

   Species or genus of the plants entitled to variety protection under this Law shall be determined in accordance with an Ordinance of the MAF. Now, there are 88 plant genera and species designated as plant variety protection by the Ordinance by the end of 2001, which was started from 27 plant genera and species in 1997, extended more 30 plant genera and species in May 1, 2000, and extended 31 plant genera and species on July 1, 2001. The specific list of plant genera and species is attached in appendix table 1 to 3.

 

2. Conditions of Variety Protection

   Protection shall be granted for a variety, provided such variety is: new, distinct, uniform, stable, and suitable denomination.

  Novelty

   The variety is new at the date of filing of the application, propagating material or harvested material of the variety has not been assigned, by or with the consent of the breeder, for the purposes of exploitation of the variety, in the territory of the Republic of Korea for longer than one (1) year and in a territory other than that of the Republic of Korea for longer than four (4) years (or, in case of trees and fruit trees, for longer than six (6) years).

 

  DUS

   Distinctness is that the variety shall be 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.

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

   Stability is that the variety shall be stable if its basic characteristics remain unchanged after repeated propagation (or, in case of a particular cycle of propagation such as F1 hybrid, at the end of each such cycle). 

  Variety Denomination

   A variety shall have its unique variety denomination, which are involved in a variety for which an application for variety protection, a variety for which an application for the entry in a catalogue of varieties, a variety for which a declaration to produce and sell its seed. Where a denomination has already been registered, or its registration has been applied, in the Republic of Korea or in another country, that denomination alone shall be used; however, a denomination which is contrary to ordre public or morality shall not be used. 

  There are some requirements that a variety denomination can be registered under the Seed Industry Law.

 

3. Fees for procedure

   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 30,000won (around 23 US$). After passing the examination as to the formal requirement, an applicant shall pay the test fee. Document test fee is 50,000won (around 40 US$), and growing test fee is 200,000won (around 155US$). A variety protection right holder shall pay an annual variety protection fee for the entire duration of the protection right.

 

4. Persons Entitled to Variety Protection

   The entitlement to the breeder's right shall be vested in the breeder or his successor in accordance with this Law. Where two or more persons have bred, or discovered and developed, a variety jointly, the entitlement to protection shall be vested in them jointly. 

 

5. Non-residents and Foreigners

 

  Variety Protection Agent for Non-residents

   A person who has neither a domicile nor a place of business in the Republic of Korea (Non-residents) may not initiate any procedure relating to variety protection. He shall be represented by an variety protection agent with respect to his variety protection who has an address or place of business in the Republic of Korea.

 

  Capacity of Foreigners to Enjoy Rights

   Foreigners from the non-residents shall not enjoy variety protection rights or other rights relating to a variety, except as (i) where their country allows nationals of the Republic of Korea to enjoy variety protection rights under the same conditions as its own nationals; (ii) where their country allows nationals of the Republic of Korea to enjoy variety protection rights 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 (iii) where they may enjoy variety protection rights according to a treaty or equivalents of a treaty.

 

6. Current Situation of PVP in Korea

  Since the enactment with the Seed Industry Law, the number of applications is 224, 72, 94, 221 and 215 in 1998, 1999, 2000, 2001 and 2002 respectively. However, in 1998, there were large number of varieties filed by interim measures for known varieties at the time of enactment of the Law, which was developed before enactment of the Law. From 1999 to 2002, total number of applications increased every year steadily. Applications of varieties that are bred in foreign countries have recently filed in particular with rose in 2002. Total 90 varieties are applied from foreign breeder which is 77, 11 and 2 in rose, impatiens and dendrobium, respectively. Number of applications and registration for plant variety protection are seen below table.

 

Table 2. Number of applications and registration for plant variety protection on May 31, 2002

Crops

No. of species

No. of application

No. of Registration

1998

1999

2000

2001

2002

Total

Food crops

7

178

27

30

41

38

314

251

Vegetables

11

17

24

27

45

24

 137

38

Fruits

5

26

11

9

19

2

67

26

Ornamental

12

3

9

21

46

161

240

9

Grasses

2

-

1

2

1

-

4

1

Industrial crops

11

-

-

5

69

13

87

-

Total

48

224

72

94

221

238

849

325

 


 

 

PROCEDURE OF APPLICATION AND REGISTRATION FOR PVP

 1. Application for Variety Protection

   A variety protection applicant shall file to the NSMO an application with the examiner. The application shall comprise the elements such as the name and address of the applicant, the name and address, or place of business, of the agent, if any; the name and address of the breeder of variety, if that person is not the applicant; the identification of the botanical taxon (Latin and common name); the denomination proposed for the variety, or a provisional designation; the filing date; where the priority of an earlier application is claimed; a 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. 

 

Application
New Variety (Breeder)
Laying Open
Documentation
DUS Test
Public Inspection
Ruling of Registration
Publication
Examination
Publication
Applicant
Rejection
Applicant
Appeal Committee
Patent Court
Demanding Trial
Information
Opposition
Certificate of PVPR

[Fig. 1] The Procedure from application to registration for PVP in Korea.

 

2. Processing of the Application

  The documents constituting the application should be received, where the applied variety belongs to the species or genus of the plants entitled to variety protection. Any application that is complete and correct or any application that is amended shall be given a filing date and shall be recorded in the register of applications. The filing date shall be taken to be the day on which the documents constituting the application have been received.

 

3. Correction

  An applicant may correct the application before the transmittal of a certified copy of the decision of publication, if the correction does not change the main points of the original application. An applicant may, after the transmittal of a certified copy of the decision of publication, amend the application under any of the items, provided that such correction does not change the main points of the original application

 

EXAMINATION

 1. Examination by Examiner

  The NSMO shall have applications for variety protection, oppositions to the grant of variety protection, and applications for the registration of variety denomination, which will be examined by an examiner.

 

2. Publication of the Application

  NSMO publish the variety protection application, which has been registered in the register of variety protection applications by publishing the application in the Variety Protection Gazette without delay. Any person may, when the application is published, furnish the examiner with information, together with evidence, that the variety concerned is unprotectable because of lack of condition of protection.

 

3. Examination of Applied Variety

  An examiner shall examine whether an applied variety meets the requirements of conditions of protection. The examiner may entrust a DUS testing Div. of NSMO, research institute, university, or any appropriate person with investigation or testing to perform the examination. 

 

4. Submission of Materials

  The examiner may order the applicant to furnish all materials, if              necessary, for the purposes of the examination. The applicant who has been ordered to furnish the materials shall comply with the order, unless the applicant has a legitimate reason for his failure. 

 

5. Rejection Ruling and Notification of Reasons Therefor

  The examiner shall render a ruling to reject a variety protection application where it is not protectable under provision. An examiner should notify the applicant of the reasons and give him an opportunity to submit a written opinion designating a time limit for such submission when he intends to render a ruling on rejection.

 

6. 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, the examiner shall transmit a certified copy of the decision of publication of the application to the applicant and publish the application in the Official PVP Gazette that published in every month. The examiner shall make the application files and their attachments available for public inspection for sixty (60) days following the date of publication of the application. 

 

7. Right to Provisional Protection

  After publication of his application for public inspection, the applicant for variety protection shall have an exclusive right to commercially and industrially exploit the variety claimed in the variety protection application. For this provisional protection, the MAF considering amend the law that provisional protection from publication for public inspection after examination to publication of application when the variety applied.

 

8. Opposition to Grant of Variety Protection

  During the publication of an application for public inspection, where the variety in the variety protection application does not comply with the requirements of variety protection and where the variety protection application is filed by a person other than the one entitled to variety protection, any person can file an opposition to the grant of variety protection with the examiner.

 

9. Decision on Grant of Variety Protection

  Where no grounds for rejecting a variety protection application are established, the examiner makes a decision that variety protection is to be granted for the application. The decision on grant of variety protection should be in written form and state the reasons. When the decision on grant of variety protection has been, it should be transmit a certified copy of the decision to the applicant, and publish the decision in the Official PVP Gazette.

 

 

THE VARIETY PROTECTION RIGHT

1. 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.

 

2. Effects of the Variety Protection Right

  A variety protection right holder shall have an exclusive right to exploit the protected variety commercially and industrially. However, where the variety protection right is subject to an exclusive license, this provision shall not apply to the extent that the exclusive licensee has the exclusive right to exploit the protected variety.

  A variety protection right holder shall also have an exclusive right to exploit harvested material and the product which has been made directly from harvested material of the seed of the protected variety commercially and industrially. However, this provision shall not apply where the product is made directly by a person who has no knowledge of the right when producing the product. The variety right shall also apply in relation to varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety, varieties which are not clearly distinguishable from the protected variety and varieties whose production requires the repeated use of the protected variety.

 

3. 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. A variety protection right shall be restricted when a farmer collects the seeds of the variety for himself for the purpose of self-production. 

 

4. Exhaustion of the Variety Protection Right

  The variety protection right shall not extend to acts concerning any material of the protected variety which has been sold or otherwise marketed in the Republic of Korea by the holder of the variety protection right, or an exclusive or non-exclusive license, or its harvested material, or any material directly made from said material, unless such an act falls under either of the following items; 1) an act of propagating the seed of the protected variety by using the seeds of the protected variety which has been sold or otherwise marketed, its harvested material, or any material directly made from said material; 2) an act of exporting the seeds of the protected variety, its harvested material, or any material directly made from said material for the purpose of propagation. 

 

5. Protection of the Variety Protection Right Holder

  There are many ways to prevent from infringement of the variety protection right holder by such as injunction and prevention against infringement, right to claim compensation for damage, presumption of negligence and recovery of reputation of variety protection right holder or exclusive licensee.

 

APPEAL

 

  The Variety Protection Appeal Committee was established in the MAF in order to conduct trial and retrial proceedings on variety protection. The person, objecting to a trial decision or a decision to quash an amendment of a variety protection application, written trial demand, or written retrial demand, may appeal to the Patent Court. An appeal shall be submitted within thirty (30) days from the date of receipt of a certified copy of the trial decision or ruling. Any person objecting to a judgment of the Patent Court may appeal to the Supreme Court. 

 

 

THE IMPORTANCE OF PVP IN KOREA

 The number of varieties applied for PVP in UPOV member countries were increased steadily after introduce the PVP system to their own countries. The purpose of the PVP system in Korea is to develop seed industry and to contribute to stability of agriculture, forestry, and fishery by enacting provisions on protection of the breeder's right. This system will stimulate breeding activities and consequently, widens the spectrum of varieties available to farmers and increase the genetic variability for breeder to develop new varieties. This system also balances benefits between farmers and breeders as well as amongst breeders, so farm saved seed and any act for the purpose of breeding new varieties are excluded from the scope of the breeder' right, which is so called, farmer's privilege and breeder's exemption, respectively.

 

REFERENCE

 

Choi, Keun Jin and Ryu Hae-Yeong. 2000. Plant Variety Protection and its Implications on Rice in the Republic of Korea. Workshop of the effect PVP on Rice research. IRRI/Phippline. p 7783.

Choi, Keun Jin. 2002. Plant Variety System of Seed Industry Law in Korea./Training on Rice Seed Production for Lao Officials. KOICA/RDA. p 161199.

Government of Korea. Korean Intellectual Property Office. 1997. Patent Law. KIPO. p269

National Seed Management Office. 2001. Korean-English version of UPOV '91 Act and Seed Industry Law. National Seed Management Office. p112253.

National Seed Management Office. 2001. Rep. of Korea Seed Industry Law(Law No. 6,374). National Seed Management Office/MAF. p93

 


 

Appendix table 1. The List of 27 Plants Genera and Species designated as Plant Variety Protection under the Seed Industry Law on December 31, 1997.

  Crops Botanical names
1 Rice Oryza sativa L.
2 Barley Hordeum vulgare L.
3 Soybean Glycine max (L.) Merrill
4 Maize Zea mays L.
5 Potato Solanum tuberosum L.
6 Wheat Triticum aestivum L.
7 Radish Raphanus sativus L.
8 Chinese cabbage Brassica campestris L. spp. pekinensis (Lour.) Rupr.
9 Cabbage Brassica oleracea L. var. capitata
10 Pepper Capsicum annuum L.
11 Tomato Lycopersicum esculentum Mill.
12 Cucumber Cucumis sativus L.
13 Oriental melon Cucumis melo L. var. makuwa Makino
14 Water melon Citrullus vulgaris Schrad.
15 Squash Cucurbita spp.
16 Welsh onion Allium fistulosum L.
17 Onion Allium cepa L.
18 Carrot Daucus carota L.
19 Lettuce Lactuca sativa L.
20 Spinach Spinacia oleracea L.
21 Plain cactus Gymnocalycium mihanovichii Br. & R.
22 Apple Malus domestica Borkh.
23 Pear Pyrus pyrifolia (Durm f.) Nakai
24 Peach Prunus persica (L.) Batsch.
25 Rye grass Lolium spp.
26 Tall fescue Festucaelatior var. arundianacea (Schreb.) Wimm.
27 Red clover Trifolium pratense L.

 


 

 

Appendix table 2. The List of 30 Plants Genera and Species designated as Plant Variety Protection under the Seed Industry Law on May 1, 2000.

  Crop Botanical name
1 Oats Avena sativa L.
2 Sweet potato Ipomoea batatas (L.) Lam.
3 Sesame Sesamum indicum L.
4 Perilla Perilla frutescens Brit. var. japonica Hara
5 Groundnut Arachis hypogaea L.
6 Rape Brassica napus L.
7 Melon Cucumis melo L. var. reticulatus Naud
8 Broccoli Brassica oleracea L. var. italica Plen.
9 Cauliflower Brassica oleracea L. var. botrytis (L.) Alef. var. botrytis
10 Grapevine Vitis spp.
11 Yuzu(Citrus) Citrus junos Sieb ex Tanaka
12 Forsythia Forsythia spp.
13 Hibiscus Hibiscus spp.
14 Lycoris Lycoris spp.
15 Ajuga multiflora Ajuga multiflora Bunge
16 Lisianthus Eustoma grandiflorum Shinn
17 Petunia Petunia hybrida Hort.
18 Godetia Godetia grandiflora Lindl.
19 Impatiens Impatiens spp.
20 Cyclamen Cyclamen persicum Mill.
21 Snapdragon Antirrhinum majus L.
22 Pansy Viola tricolor L. var. hortensis DC.
23 Daisy Bellis perennis L.
24 Alstromeria Alstroemeria spp.
25 Hyacinth Hyacinthus spp.
26 Angelica gigas Angelica gigas Nakai
27 Astragalus membranaceus Astragalus membranaceus Bunge
28 Ginseng Panax ginseng C.A.Meyer
29 Mushroom Pleurotus spp.
30 Orchardgrass Dactylis glomerata L.


 

 

Appendix table 3. The List of 31 Plants Genera and Species designated as Plant Variety Protection under the Seed Industry Law on July 1, 2001

  Crop

Botanical name

1 Dendrobium Dendrobium Sw.
2 Aerides japonicum Aerides japonicum Lindemb. et Reichb.
3 Neofinettia falcata Neofinettia falcata Hu.
4 Calanthe discolor Calanthe discolor Lindl.
5 Rose Rosa spp.
6 Lily Lilium spp.
7 Chrysanthemum Dendranthema spp.
8 Iris Chrysantuemum morifolium Ramat.
9 Gladiolus Iris spp.
10 Tulip, Gladiolus gandavensis van Houtte
11 Poinsettia Tulipa gesneriana L.
12 Celosia Emphorbia pulcherrima Willd. ex Klot
13 Stock Celosia cristata L.
14 Zinnia Matthiola incana R.Br.
15 Myosotis alpestris Zinnia elegans Jacq.
16 Senecio cruentus Myosotis alpestris F.W. Shmidt
17 Nasturitium Senecio cruentus DC.
18 Pot marigold Tropaeolum majus L.
19 Lobularia maritama Calendula officinalis L.
20 Ageratum, Lobularia maritama Desv.
21 Hemerocallis Ageratum houstonianum Mill
22 Rehmannia glutinosa Hemerocallis hybrida Hort
23 Lycium Rehmannia glutinosa
24 Dioscorea Lycium chinensis Millor
25 Bupleurum falcatum Bupleurum falcafum L.
26 Platycodon grandiflorum Platycon grandiflorum DC. 
27 Cassia Cassia tora L.
28 Cnidium Cnidium officinale Makino
29 Liriope platyphylla Liriope graminifolia Baker
30 Anglica dahurica, Angelica dahurica (Fischer) Bentham et Hooker
31 Saposhnikovia Saposhinikovia seseloides (Hoffm.) Kitagawa