plant variety protection · ipomoea batatas sweet potato fam. pedaliaceae sesamum indci um sesame...

PLANTVARIETYPROTECTIONGAZETTE AND NEWSLETTER

No. 103 July 2010

INTERNATIONAL UNION

FOR THE PROTECTION

OF NEW VARIETIES OF PLANTS

No. 103 - SEPTEMBER 2009

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TABLE OF CONTENTS

GAZETTE

NEW MEMBERS OF UPOVOman .................................................................................................................................................... 2

ACCESSION TO THE 1991 ACT OF THE UPOV CONVENTIONSlovak Republic ..................................................................................................................................... 3

EXTENSION OF PROTECTION TO FURTHER GENERA AND SPECIESLithuania ................................................................................................................................................ 4Republic of Moldova .............................................................................................................................. 6Republic of Korea .................................................................................................................................. 6South Africa ........................................................................................................................................... 6Viet Nam................................................................................................................................................ 8

LEGISLATIONEUROPEAN UNION

Commission Regulation (EC) 874/2009 establishing implementing rulesfor the application of Council Regulation (EC) No 2100/94 as regardsproceedings before the Community Plant Variety Office (recast) ................................................ 9

HUNGARYACT XXXIII of 1995 on the Protection of Inventions by Patents,as last amended by Act XXVII of 2009 ...................................................................................... 39

KYRGYZSTANLaw of the Kyrgyz Republic on the legal protection of selection achievementsLaws of the Kyrgyz Republic, February 27, 2003, No. 46, March 31, 2005, No. 58,August 8, 2006, No. 155) .......................................................................................................... 53

REPUBLIC OF MOLDOVALaw on the protection of plant varieties N39-XVI of February 9, 2008 ....................................... 71

NETHERLANDSAct of 19 February 2005, containing new regulations governing the approvalof varieties of plants, the marketing of propagating material, and the grantingof breeder's rights (Seeds and Planting Material Act, 2005) .................................................... 102

OMANRoyal Decree 49/2009 promulgating the Law on the protection of breeders' rightsin new varieties of plants ........................................................................................................ 128

URUGUAYExecutive - Law No. 18.467* of February 27, 2009 ................................................................. 135

CASE LAWLemon Symphony .............................................................................................................................. 140

NEWSLETTER

UPOV Council appoints new Vice Secretary-General ........................................................................ 144UPOV Open Day ............................................................................................................................... 144UPOV Distance Learning Course DL-205.......................................................................................... 144Electronic links for members, PVP offices and Index of legislation .................................................... 145Calendar of Events 2010/2011 ........................................................................................................... 146

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PLANT VARIETY PROTECTION

GAZETTE

NEW MEMBERS OF UPOV

OMAN*

On October 22, 2009, the Government of Omandeposited its instrument of accession to theInternational Convention for the Protection of NewVarieties of Plants of December 2, 1961, as revisedat Geneva on November 10, 1972, on October 23,1978, and on March 19, 1991, with the Secretary-General of UPOV.

The Convention entered into force for Oman onemonth after the deposit of its instrument ofaccession, i.e. on November 22, 2009. On that date,

Oman became the sixty-eighth member of theUnion.According to the notification deposited withthe Secretary-General together with the instrumentof accession, protection is available to the generaand species listed below:

* Pursuant to Article 34(3) ofthe 1991 Act of the UPOV Convention, any State which is not a member of the Union and anyintergovernmental organization shall, before depositing its instrument of accession, ask the Council of UPOV to advise it inrespect of the conformity of its laws with the provisions of the UPOV Convention. If the decision embodying the advice ispositive, the instrument of accession may be deposited. The positive advice of the Council of UPOV concerning the Sultanateof Oman is contained in paragraph 8 of document C/43/17 based on document C/43/14 (http://www.upov.int/en/documents/c/index_c43.htm).

SCIENTIFIC NAMES ENGLISH NAMES Fam. Gramineae Triticum aestivum Triticum turgidum var. durum Hordeum vulgare Avena sativa Zea mays Sorghum bicolor Pennisetum purpureum Pennisetum typhoides Saccharum officinarum

Bread Wheat Durum Wheat Barley Oat Corn or Maize Sorghum Elephant Grass Pearl Millet Sugarcane

Fam. Leguminosae Medicago sativa Vigna unguiculata var. sinensis Phaseolus radiatus Cicer arietinum Trigonella foenum graecum Prosopis cineraria

Alfalfa Fodder cowpea Mungbean Chickpea Fenugreek Ghaf

Fam. Alliaceae Allium cepa Allium sativum

Onion Garlic

Fam. Palmaceae Phoenix dactylifera Cocus nucifera

Date palm Coconut

Fam. Rutaceae Citrus aurantifolia Citrus limettoides Citrus sinensis

Lemon (Key lime) Sweet Lime Citrus


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ACCESSION TO THE 1991 ACT OF THE UPOV CONVENTION

SLOVAK REPUBLIC

On May 12, 2009, the Government of the SlovakRepublic deposited its instrument of accession tothe 1991 Act of the International Convention for theProtection of New Varieties of Plants.

The Slovak Republic has been a member of UPOVsince January 1, 1993.

The 1991 Act entered into force for the SlovakRepublic on June 12, 2009, one month after thedeposit of its instrument of accession.

According to the notification deposited with theSecretary-General together with the instrument ofaccession, protection is available to all genera andspecies.

SCIENTIFIC NAMES ENGLISH NAMES Fam. Anacardiacea Mangifera indica Mango Fam. Musacea Musa spp. Banana Fam. Malvaceae Gossypium spp. Cotton Fam. Solanaceae Lycopersicum esculentum Solanum tuberosum Nicotiana tabaccum

Tomato Potato Tobacco

Fam. Convolvulaceae Ipomoea batatas Sweet Potato Fam. Pedaliaceae Sesamum indicum Sesame Fam. Umbellifera Daucus carota Carrot Fam. Cucurbituceae Cocumis sativus Cucumis melo var. chito Lagenaria vulgaris

Cucumber Melon Lagenaria

Fam. Moraceae Ficus carica Common Fig Fam. Puniceaceae Punica granatum Pomegranate Fam. Rha mnaceae Zizyphus spinachristi Nabka or Christ-thorn Fam. Bursraeceae Boswellia sacara Fluenck Frankincense Fam. Vitaccae Vitis spp. Grape Fam. Rosaceae Prunus armeriaca Prunus amygdalus Prunus spp.

Apricot Almond Peach

Fam. Rubiaceae Coffea arabica Arabian Coffee Fam. Iridaceae Crocus sativa Saffron

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EXTENSION OF PROTECTION TO FURTHER GENERA AND SPECIES

Pla nt Spec ies (Com mo n na me)

No . P lant Genera (Botanic al nam e)

in Lati n in E nglish 1 2 3 4

A gricu ltu ra l P lants Cereals 1. Av ena L. Avena s ativ a L. Oat 2. Fagopy rum M ill. Fagopy rum es cul entum M oenc h Buc k wheat 3. H ord eum L . Hordeum v ulg are L. Barley 4. Panicum L. Pani cum m iliaceum L. Com mon millet 5. Secale L. Secale c ereale L. Ry e 6. Trit icum L. Tritic um aest iv um L. Wheat 7. x Trit icos ec ale Wit tm. x Tritic osec ale W ittm. Tric ale Potato 8. Solanum L. Solanum tuberosum L . Potato Beet 9. Beta L. Beta v ulgaris L. Fodder be et Oil an d Fibre P lant s 10. Brass ica napus L. Bras sic a nap us L . (part im ) Swede rap e 11. Brass ica rapa L . Bras sic a rap a L. v ar. silv es t ris

(La m). Briggs Turnip rap e

12. C artham us L. Carth am us tinc tori us L. Saff lower 13. C arum L. Carum ca rv i L. Caraw ay 14. Linum L. Linum us itatiss im um L. Flax, li nseed 15. Sinapis L. Sinapis al ba L. White m us ta rd Fo dd er plants

Agros tis capillaris L. Brown top Agros tis giga ntea Roth. Red top

16. Agrost is L.

Agros tis stolo nifera L . Creeping bent 17. Alopecu rus L. Alopec urus pratens is L. Meadow foxtai l 18. Brass ica L. Bras sic a nap us L . var. napobras sic a

(L. ) R c hb . Swede

19. Brom us L. Brom us inerm es ( Ley ss .) Ho lub Smoo th brom e 20. D ac ty lis L. Dactylis gl omerata L. Coc ksfo ot

Festuca arundinac ea Sc hreber Tall fes cue Festuca ov ina L. Sheep’s fesc ue Festuca pratens is H uds o n Meadow fesc ue

21. Fes tuc a L.

Festuca rubra L. Red fes cue 22. x Fes tulolium X Fes tulolium Festulolium

Lolium x b ouc heanum K unth Hy brid rye gras s Lolium m ult iflorum Lam Italia n rye gra ss

23. Lolium L.

Lolium pe ren ne L. Pere nnial ry eg ras s 24. Lotus L. Lotus cor ni culatus L. B ird’s fo ot trefo il 25. Lupinus L. Lupin us a ngu st ifolius L. B lue Lupin

Medic ago lupulina L. Tefoil Medic ago s at iv a L. Luc erne

26. Medic ago L.

Medic ago x va ria T . M arty n Luc erne

LITHUANIA

The Office of the Union received a notificationconcerning the extension of the list of genera andspecies eligible for protection approved by the OrderNo. 3D-466 of the Minister of Agriculture of the

Republic of Lithuania of 29 June 2009 (OfficialJournel, 2009, No. 80-3353).


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Plant Spec ies (C omm on nam e) N o. P lant G enera

(B otani cal name) in Lat in in Englis h

1 2 3 4 27. O nobry ch is M ill. O nobryc his v iciifoli a Sc op. Co mmo n s a i nfo in 28. P isum L . Pis um sat ivum L . (P arti m) Fie ld pea 29. P hac elia J uss . Phac elia tanacetifo lia B enth. Ca lif orn ia b luebe ll 30. P halaris L . Phalaris arund inac ea L. Reed C a nary gras s 31. P hleum L. Phleum pratense L . T imothy

Poa com pr essa L . F lat te ned meado wgrass Poa nem ora lis L . Wo od m eado wgrass Poa pa l ustris L. Swam p m eadlow gras s

32. P oa L.

Poa pr atens is L . Smo oth-sta lked meado wgrass 33. R aphanus L. R apha nus sativ us L . v ar. olei form es

Pers . Fodder radis h

T rifolium hy bridum L. A lsi ke c lo ver T rifolium pratens e L . Red clov er

34. T rifo lium L.

T rifolium repens L . Whit e c lover Vic ia fab a L. Fie ld bean 35. V icia L. Vic ia s ativa L. Co mmo n v etc h

Vegetab les Allium c epa L. O nion Allium f istu losum L. Wels h O nio n Allium s ativ um L . G arlic

36. A llium L .

Allium s choenopras um L. Ch iv es 37. P ium L. Apium grav eole ns L . Ce lery 38. B eta L . Beta vu l garis L. v ar. c onditiv a A lef . Beetroo t 39. B ras sic a L. Bras sica o lerac ea L . c onv ar. c apita ta

(L.) A lef . Var. al ba DC Whit e C abbage

40. C apsic um L. C apsicum a nnu um L . Pepper

41. C oriandrum L. C ori an drum sat ivum L. Co riander 42. C ucum is L . C ucum is sativ us L . Cuc umber, gherk in 43. D aucus L. D aucus c ar ota L . Carrot

44. Ly copers icon Mill. Ly copersic on e sc ulentum M ill. T omato 45. P has eol us L . Phas eol us vulgaris L . Frenc h bean 46. R aphanus L. R apha nus sativ us L . Radis h

F ru it T rees 47. C ydo nia Mil l. C ydonia ob l ong a M ill. Q uince

F ra gari a ananas sa D uc h. S tra wberry 48. F ragari a L. F ra gari a ves c a L. Wild s t rawberry

49. M alus M i ll. M alus dom est ic a Bor kh. Apple Prunus avium L . Sweet c herry Prunus c er asus L . Cherry

50. P runus L .

Prunus dom es tic a L . P lum 51. P yrus L. Py rus c omm unis L. Pear

R ibes n i grum L . B lack c urrant R ibes r ubr um L . Red curra nt R ibes s ylv es tre Lam. Whit e c urrant

52. R ibes L.

R ibes uv a-c rispa L. G oos eberry 53. R ubus L. R ubus i dae us L . Ras pberry 54. V ac cinium L. Vac cin ium angust ifolium A ito n Swam p blueberry 53. R ubus L. R ubus i dae us L . Ras pberry 54. V ac cinium L. Vac cin ium angust ifolium A ito n Swam p b lueberry

G r apev ine 55. V itis L . Vit is L. s p. G rapevi ne

O r nam en ta ls 56. A sarina L. As arina erubes cens L . Creep i ng s na pdrago n 57. B egonia L. Begonia x tuberhyb rida V o ss Hy brid tuberous begonia

D ianthus ca ryophy llus L. Car nat ion 58. D ianthus L . D ianthus chi nens is L . Car nat ion

59. G ladio lus L. G ladiolus c om m unis L. G ladiolus 60. P aeonia L. Paeonia lac tif lora Pa ll. Peony

61. T ulipa L . T ulip a ges nerana L . T ulip

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REPUBLIC OF KOREA

According to Ordinance No. 2009-28 of May 1, 2009,the protection provided by the Law on Seed Industryextends to all genera and species, with the exceptionof the following six groups:

COMMON NAME BOTANICAL NAME Strawberry Fragaria spp. Raspbery Rubus allegheniensis Porter

Rubus coreanus Miq. Rubus lociniatus Willd Rubus thyrsoideus

Mandarin Citrus unshiu Marc. Blueberry Vaccinium angustifolium Aiton

Vaccinium corymbosum L. Vaccinium formosum Andrews Vaccinium myrtilloides Michx. Vaccinium myrtillus L. Vaccinium simulatum Small Vaccinium virgatum Aiton

Cherry Prunus avium L. Prunus cerasus L. Prunus x gondouinii (Poit. & Turpin) Rehder.

Seaweed All crops

SOUTH AFRICA

On April 15, 2009, the Office of the Union receiveda notification concerning the extension of the list ofgenera and species eligible for protection and

administered by the Directorate:Genetic Resourcesof the Department of Agriculture.

1 2 3 4 Kind of Plant Botanical Name Common Name

Category Period of Plant Breeder’s Right

(Year)

Period of sole Right (Year)

Allium sativum L. Garlic A 20 5 Cyperus L. (All spp.) Sedge A 20 5 Draceana. (All spp.) Draceana A 20 5 Hermannia L. (All spp.) Doll’s roses B 25 8 Polygala L. (All spp.) Milkwort ; snakeroot B 25 8 Verbascum L. (All spp.) Mullein A 20 5

REPUBLIC OF MOLDOVA

According to Governmental Decision of July 3, 2007,protection is extended to all genera and species,including hybrids between genera and species.


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BOTANICAL NAME COMMON NAMEAbelmoschus Medik. (All spp.) Gumbo, Lady's fingersAcorus L. (All spp.) Sweet flagAgeratina Spach (All spp.) AgeratinaAllium sativum L. GarlicArtemisia L. (All spp.) ArtemisiaBauhinia L. (exclud. B. purpurea and B. variegata) Bauhinia; Orchid treeCarex brunnea Thunb. Greater brown sedgeColeostephus Cass. (All spp.) ColeostephusCrambe abyssinica Hochst. Ex R.E.Fr. Abyssinian-kale; CrambeCrium L. (All spp.) Cape lilyCyperus L. (All spp.) SedgeDelosperma N.E.Br. (All spp.) DelospermaDierama C.Kch (All spp.) WandflowerDietes Salisb. ex Klatt (All spp.) Fortnight lily; African IrisDraceana L. (All spp.) DraceanaEucomis L'Her. (All spp.) Pineapple lilyFerraria Burm. ex Mill. (All spp.) FerrariaGaillardia x grandiflora hort. ex Van Houtte Blanket FlowerGlandularia J.F.Gmel (All spp.) GlandulariaGoniolimon Boiss. (All spp.) GoniolimonHermannia L. (All spp.) Doll's rosesHeteranthemis Schott (All spp.) HeteranthemisHeuchera L. (All spp.) Coral bellsHypoxis L. (All spp.) Yellow star; Star lily; African potatoIlex dimorphophylla Koidz HollyKniphofia Moench (All spp.) Poker plantKunzea Reichb. (All spp.) Burgan, White tea treeLedebouria Roth. [including Drimiopsis Lindl. &Paxton and Resnova Van der Merwe (All spp.) LedebouriaLeucanthemum Mill. Leucanthemum

SOUTH AFRICA (continued)

On April 22, 2009, the Office of the Union receiveda notification concerning the extension of the list ofgenera and species eligible for protection and

administered by the Directorate:Genetic Resourcesof the Department of Agriculture.

BOTANICAL NAMEActinidia Lindley (All spp).Crocosmia Planchon (All. spp.)Dahlia Cav. (All spp.)Lagerstroemeria indica L..

Searsia F.A. Barkley (All spp.)

On December 17, 2009, the Office of the Unionreceived a notification concerning the extension ofthe list of genera and species eligible for protection

and administered by the Directorate:GeneticResources of the Department of Agriculture.

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VIET NAM

On October 4, 2008, the Office of the Union receiveda notification concerning the extension of the list ofgenera and species eligible for protection and

administered by the Plant Variety Protection Officeof the Ministry of Agriculture and Rural Development(MARD).

ENGLISH LATIN NAME1. Ficus Ficus L. (Ficus costata Ait.; Ficus Benjamina L.; Ficus carica L.)2. Grass Pennisetum americanum (L.) Leeke; Pennisetum purpureum Schumach)3. Fiber Tea (Ampelopsis cantoniensis (hook. et Arn.) Planch.4. Sweet Potato Ipomoea batatas L.5. Apricot Prunus arminiaca L.6. Guava Psidium guava L.7. Euphorbia Euphorbia pulcherrima Willd. ex Klotzsch and the varieties are crossed

between them8. Lotus Lotus corniculatus L.; Lotus pedunculatus Cav.; Lotus uliginosus Schkuhr.;

Lotus tenuis Waldst. et Kit. ex Willd.; Lotus subbiflorus Lag.)9. Longan Dimocartpus Longan L.10. Litchee Litche Chinensis L.11. Cymbidium Cymbidium Sw.12. Amaranth Amaranthus L.13. Lettuce Lactuca sativa L.14. Radish Raphanus sativus L.

15. Peach Prunus persica (L.) Batsch

BOTANICAL NAME COMMON NAMEMoraea Mill. (All spp.) Butterfly irisPolygala L. (All spp.) Milkwort; snakerootPsyilliostachys (Jaub. & Spach) Nevsk (All spp.) PsylliostachysRhodohypoxis Nel. (All spp.) Rose grassScadoxus Raf. (All spp.) Blood lilySchizocarphus Van der Merwe (All spp.) SchizorcaphusSelago L. (All spp.) SelagoSideroxylon ineme L. MilkwoodStachytarpheta Vahl. (All spp.) StachytarphetaTanecetum L. (All spp.) TanecetumVeltheimia Gled. (All spp.) VeltheimiaVerbascum L. (All spp.) Mullein

SOUTH AFRICA (continued)


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LEGISLATION

EUROPEAN UNION

COMMISSION REGULATION (EC) 874/2009*of 17 September 2009

establishing implementing rules for the application of Council Regulation (EC) No 2100/94as regards proceedings before the Community Plant Variety Office

* Text provided by the European Union. As published in Official Journal L 251, 24/09/2009 P. 0003-0028

THE COMMISSION OF THE EUROPEANCOMMUNITIES,

Having regard to the Treaty establishing theEuropean Community,

Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights[1], and in particular Article 114 thereof,

Whereas:

(1) Commission Regulation (EC) No 1239/95 of 31May 1995 establishing implementing rules for theapplication of Council Regulation (EC) No 2100/94as regards proceedings before the Community PlantVariety Office [2] has been substantially amendedseveral times [3]. Since further amendments are tobe made, it should be recast in the interests of clarity.

(2) Regulation (EC) No 2100/94 (the basicRegulation) creates a new Community system ofplant variety rights, whereby a plant variety right isvalid throughout the Community.

(3) Such a system should be carried out in aneffective manner by the Community Plant VarietyOffice (the Office), which is assisted by ExaminationOffices in conducting the technical examination ofthe plant varieties concerned and which may availitself of the services of designated national agenciesor one of its own sub-offices established for thatpurpose. In that regard, it is indispensable to definethe relationship between the Office and its own sub-offices, the Examination Offices and nationalagencies.

(4) A fee for the conduct of the technical examinationshould be paid by the Office to the ExaminationOffices on the basis of full recovery of costs incurred.Uniform methods for the calculation of the costsshould be established by the Administrative Council.

(5) Decisions of the Office may be appealed againstbefore its Board of Appeal. Provisions on theprocedure of the Board of Appeal should beadopted. Further Boards of Appeal may beestablished, if necessary, by the AdministrativeCouncil.

(6) Examination reports made under theresponsibility of authorities of a Member State or athird country which is a member of the InternationalUnion for the Protection of New Varieties of Plants(UPOV) should be considered a sufficient basis fordecision.

(7) The use of electronic means for the filing ofapplications, objections or appeals and the serviceof documents by the Office should be permitted.Moreover, the Office should be given the possibilityto issue certificates for Community plant varietyrights in electronic form. Publication of informationregarding Community plant variety rights should alsobe possible by electronic means. Finally, theelectronic storage of files relating to proceedingsshould be allowed.

(8) The President of the Office should beempowered to determine all necessary details withrespect to the use of electronic means ofcommunication or storage.

European Union Commission Regulation (EC) No 874/2009

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(9) Certain provisions of Articles 23, 29, 34, 35, 36,42, 45, 46, 49, 50, 58, 81, 85, 87, 88 and 100 of thebasic Regulation already explicitly provide thatdetailed rules shall or may be drawn up for theirimplementation. Other detailed rules should bedrawn up for the same purpose if clarification isrequired.

(10) The entry into effect of a transfer of aCommunity plant variety right or a transfer of anentitlement thereto should be defined in the rulesrelating to the entries in the Registers.

(11) The Administrative Council of the CommunityPlant Variety Office has been consulted.

(12) The rules provided for in this Regulation are inaccordance with the opinion of the StandingCommittee on Plant Variety Rights,

HAS ADOPTED THIS REGULATION:

TITLE IPARTIES TO PROCEEDINGS, OFFICE AND

EXAMINATION OFFICES

CHAPTER IParties to proceedings

Article 1Parties to proceedings

1. The following persons may be party toproceedings before the Community Plant VarietyOffice, hereinafter referred to as “the Office”:

(a) the applicant for a Community plant variety right;

(b) the objector referred to in Article 59(2) ofRegulation (EC) No 2100/94, hereinafter referredto as “the basic Regulation”;

(c) the holder or holders of the Community plantvariety right, hereinafter referred to as “the holder”;

(d) any person whose application or request is aprerequisite for a decision to be taken by the Office.

2. The Office may allow participation in theproceedings by any person other than those referredto in paragraph 1 who is directly and individuallyconcerned, upon written request.

3. Any natural or legal person as well as any bodyqualifying as a legal person under the law applicableto that body shall be considered a person within themeaning of paragraphs 1 and 2.

Article 2Designation of parties to proceedings

1. A party to proceedings shall be designated by hisname and address.

2. Names of natural persons shall be indicated bythe person’s family name and given names. Namesof legal persons as well as companies or firms shallbe indicated by their official designations.

3. Addresses shall contain all the relevantadministrative information, including the name ofthe State in which the party to proceedings isresident or where his seat or establishment islocated. Only one address should preferably beindicated for each party to proceedings; whereseveral addresses are indicated, only the addressmentioned first shall be taken into account, exceptwhere the party to proceedings designates one ofthe other addresses as an address for service.

The President of the Office shall determine thedetails concerning the address including anyrelevant details of other data communication links.

4. Where a party to proceedings is a legal person, itshall also be designated by the name and addressof the natural person legally representing the partyto proceedings by virtue of the relevant nationallegislation. The provisions of paragraph 2 shall applymutatis mutandis to such natural person.

The Office may permit derogations from theprovisions of the first sentence of the firstsubparagraph.

5. Where the Commission or a Member State isparty to proceedings, it shall communicate arepresentative for each proceeding in which it takespart.



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Article 3Languages of parties to proceedings

1. A language, being an official language of theEuropean Union, chosen by a party to proceedingsfor use in the document first submitted to the Officeand signed for the purpose of submission shall beused by the party to proceedings until a final decisionis delivered by the Office.

2. If a party to proceedings files a document signedfor that purpose by him in any other official languageof the European Union than that to be used pursuantto paragraph 1, the document shall be deemed tohave been received when the Office holds atranslation thereof, provided by other services. TheOffice may permit derogations from thisrequirement.

3. If, in oral proceedings, a party uses a languageother than the official language of the EuropeanUnion used by the competent members of the staffof the Office, by other parties to proceedings, or byboth, being the language to be used by him, he shallmake provision for simultaneous interpretation intothat official language. If no such provision is made,oral proceedings may continue in the languagesused by the competent members of the staff of theOffice and by other parties to the proceedings.

Article 4Languages in oral proceedings and in the

taking of evidence

1. Any party to proceedings and any witness orexpert who gives evidence in oral proceedings mayuse any of the official languages of the EuropeanUnion Communities.

2. Should the taking of evidence referred to inparagraph 1 be allowed at the request of a party toproceedings, then, should a party to proceedings,a witness or expert be unable to express himselfadequately in any of the official languages of theEuropean Union, he may be heard only if the partywho made the request makes provision forinterpretation into the languages used jointly by allparties to proceedings or, in the absence thereof,by the members of the staff of the Office.

The Office may permit derogations from the firstsubparagraph.

3. Statements made by the members of the staff ofthe Office, by parties to proceedings, witnesses orexperts in one of the official languages of theEuropean Union during oral proceedings or takingof evidence shall be entered in the minutes in thelanguage used. Statements made in any otherlanguage shall be entered in the language used bythe members of the staff of the Office.

Article 5Translation of documents of parties to

proceedings

1. If a party to proceedings files a document in alanguage other than an official language of theEuropean Union, the Office may require a translationof the documents received to be made by the partyto the proceedings into the language to be used bythat party or by the competent members of the staffof the Office.

2. Where a translation of a document is to be filedor is filed by a party to proceedings, the Office mayrequire the filing, within such time as it may specify,of a certificate that the translation corresponds tothe original text.

3. Failure to file the translation referred to inparagraph 1 and the certificate referred to inparagraph 2 shall lead to the document beingdeemed not to have been received.

CHAPTER IIThe Office

Section 1Committees of the Office

Article 6Qualification of members of the Committees

1. The Committees referred to in Article 35(2) ofthe basic Regulation shall, at the discretion of thePresident of the Office, be composed of technicalor legally qualified members, or both.

2. A technical member shall hold a degree, or shallbe qualified by recognised experience, in the fieldof plant science.


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3. A legally qualified member shall be a graduate inlaw or qualified by recognised experience in the fieldof intellectual property or plant variety registration.

Article 7Decisions of the Committee

1. A Committee shall, besides taking the decisionsreferred to in Article 35(2) of the basic Regulation,deal with:

- the non-suspension of a decision pursuant toArticle 67(2) of the basic Regulation,

- interlocutory revision pursuant to Article 70 of thebasic Regulation,

- the restitutio in integrum pursuant to Article 80 ofthe basic Regulation, and

- the award of costs pursuant to Article 85(2) of thebasic Regulation and Article 75 of this Regulation.

2. A decision of the Committee shall be taken by amajority of its members.

Article 8Power of individual members of the Committees

1. The Committee shall designate one of itsmembers as rapporteur on its behalf.

2. The rapporteur may in particular:

(a) perform the duties under Article 25 and monitorthe submission of reports by the ExaminationOffices, referred to in Articles 13 and 14;

(b) pursue the procedure within the Office, includingthe communication of any deficiencies to beremedied by a party to proceedings and the settingof time limits; and

(c) ensure a close consultation and exchange ofinformation with the parties to the proceedings.

Article 9Role of the President

The President of the Office shall ensure theconsistency of decisions taken under his authority.

He shall in particular lay down the conditions underwhich decisions on objections lodged pursuant toArticle 59 of the basic Regulation, and also decisionspursuant to Articles 61, 62, 63 or 66 of thatRegulation, are taken.

Article 10Consultations

Members of the staff of the Office may use, free ofcharge, the premises of national agenciesdesignated pursuant to Article 30(4) of the basicRegulation, and those of Examination Officesreferred to in Articles 13 and 14 of this Regulation,for holding periodical consultation days with partiesto proceedings and third persons.

Section 2Boards of Appeal

Article 11Boards of Appeal

1. For the purpose of deciding on appeals from thedecisions referred to in Article 67 of the basicRegulation, a Board of Appeal is established. Ifnecessary, the Administrative Council may, on aproposal from the Office, establish more Boards ofAppeal. In that event, it shall determine the allocationof work between the Boards of Appeal thusestablished.

2. Each Board of Appeal shall consist of technicaland legally qualified members. Article 6(2) and (3)shall apply mutatis mutandis. The chairman shallbe a legally qualified member.

3. The examination of an appeal shall be assignedby the chairman of the Board of Appeal to one of itsmembers as rapporteur. Such assignment mayinclude, where appropriate, the taking of evidence.

4. Decisions of the Board of Appeal shall be takenby a majority of its members.

Article 12Registry attached to a Board of Appeal

1. The President of the Office shall attach a registryto the Board of Appeal; members of the staff of theOffice shall be excluded from the registry if they



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have participated in proceedings relating to thedecisions under appeal.

2. The employees of the registry shall in particularbe responsible for:

- drawing up the minutes of oral proceedings andtaking evidence pursuant to Article 63 of thisRegulation,

- apportioning costs pursuant to Article 85(5) of thebasic Regulation and Article 76 of this Regulation,and

- confirming any settlement of costs referred to inArticle 77 of this Regulation.

CHAPTER IIIExamination Offices

Article 13Designation of an Examination Office referred to

in Article 55(1) of the basic Regulation

1. When the Administrative Council entrusts thecompetent office in a Member State withresponsibility for technical examination, thePresident of the Office shall notify the designationto such office, hereinafter referred to as “theExamination Office”. It shall take effect on the dayof issue of the notification by the President of theOffice. This provision shall apply mutatis mutandisto the cancellation of the designation of anExamination Office, subject to Article 15(6) of thisRegulation.

2. A member of the staff of the Examination Officetaking part in a technical examination shall not beallowed to make any unauthorised use of, ordisclose to any unauthorised person, any facts,documents and information coming to theirknowledge in the course of or in connection withthe technical examination. They shall continue tobe bound by this obligation after the termination ofthe technical examination concerned, after leavingthe service and after the cancellation of thedesignation of the Examination Office concerned.

3. Paragraph 2 shall apply mutatis mutandis tomaterial of the plant variety which has been madeavailable to the Examination Office by the applicant.

4. The Office shall monitor compliance withparagraphs 2 and 3 and shall decide on theexclusion of or objections raised to members of thestaff of Examination Offices in accordance withArticle 81(2) of the basic Regulation.

Article 14Designation of an Examination Office referred to

in Article 55(2) of the basic Regulation

1. Where the Office intends to entrust agencies withresponsibility for the technical examination ofvarieties in accordance with Article 55(2) of the basicRegulation, it shall transmit an explanatorystatement on the technical suitability of suchagencies as an Examination Office to theAdministrative Council for consent.

2. Where the Office intends to establish its own sub-office for the technical examination of varieties inaccordance with Article 55(2) of the basicRegulation, it shall transmit an explanatorystatement on the technical and economicappropriateness of establishing such a sub-officefor that purpose and on the siting of such sub-officeto the Administrative Council for consent.

3. When the Administrative Council gives its consentto the explanatory statements referred to inparagraphs 1 and 2, the President of the Office maynotify such designation to the agencies referred toin paragraph 1, or may publish the designation of asub-office as referred to in paragraph 2 in the OfficialJournal of the European Union. It may be cancelledonly with the consent of the Administrative Council.Article 13(2) and (3) shall apply mutatis mutandisto the members of the staff of the agency referredto in paragraph 1 of this Article.

Article 15Procedure for designation

1. The designation of an Examination Office shallbe effected by a written agreement between theOffice and the Examination Office providing for theperformance of the technical examination of plantvarieties by the Examination Office and for thepayment of the fee referred to in Article 58 of thebasic Regulation. In the case of a sub-office referredto in Article 14(2) of this Regulation, the designation


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shall be by internal rules on working methods issuedby the Office.

2. The effect of the written agreement shall be suchthat acts performed or to be performed by membersof the staff of the Examination Office in accordancetherewith shall be considered, as far as third partiesare concerned, to be acts of the Office.

3. Where the Examination Office intends to availitself of the services of other technically qualifiedbodies in accordance with Article 56(3) of the basicRegulation, such bodies shall be named in thewritten agreement with the Office. Article 81(2) ofthe basic Regulation and Article 13(2) and (3) ofthis Regulation shall apply mutatis mutandis to thestaff members concerned, who shall sign a writtenundertaking to observe confidentiality.

4. The Office shall pay the Examination Office a feefor the conduct of the technical examination, on thebasis of full recovery of costs incurred. TheAdministrative Council shall determine uniformmethods for calculating the costs and the uniformconstituents of the costs, which shall apply to alldesignated Examination Offices.

5. The Examination Office shall periodically submitto the Office a breakdown of the costs of thetechnical examination performed and of themaintenance of the necessary reference collections.In the circumstances set out in paragraph 3, aseparate auditing report of the bodies shall besubmitted to the Office by the Examination Office.

6. Any cancellation of designation of an ExaminationOffice may not take effect prior to the day on whichrevocation of the written agreement referred to inparagraph 1 takes effect.

TITLE IISPECIFIC PROCEEDINGS BEFORE THE

OFFICE

CHAPTER IApplication for a Community plant variety right

Section 1Actions of the applicant

Article 16Filing of the application

1. An application for a Community plant variety rightshall be filed at the Office, at the national agenciesdesignated or the sub-offices established pursuantto Article 30(4) of the basic Regulation.

Where the application is filed at the Office it maybe filed in paper format or by electronic means.Where it is filed at the national agencies or sub-offices it shall be filed in paper format in duplicate.

2. The information sent to the Office in accordancewith Article 49(1)(b) of the basic Regulation shallcontain:

- particulars for identifying the applicant and, whereappropriate, his procedural representative,

- the national agency or sub-office at which theapplication for a Community plant variety right wasfiled, and

- the provisional designation of the varietyconcerned.

3. The Office shall make available the followingforms free of charge:

(a) an application form and a technicalquestionnaire, for the purposes of filing anapplication for a Community plant variety right;

(b) a form for forwarding the information referred toin paragraph 2, indicating the consequences of anyfailure of the forwarding.

4. The applicant shall fill in and sign the formsprovided for in paragraph 3. Where the applicationis submitted by electronic means it shall comply with



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the second subparagraph of Article 57(3) as regardsthe signature.

Article 17Receipt of the application

1. Where a national agency designated pursuant toArticle 30(4) of the basic Regulation or a sub-officeestablished thereunder, receives an application, itshall forward to the Office, together with theapplication to be forwarded in accordance withArticle 49(2) of the basic Regulation, a confirmationof receipt. The confirmation of receipt shall includethe file number of the national agency or sub-office,the number of forwarded documents and the dateof receipt at the national agency or sub-office. Acopy of the forwarded receipt shall be issued to theapplicant by the national agency or sub-office.

2. Where the Office receives an application fromthe applicant direct or via a sub-office or a nationalagency, it shall, without prejudice to other provisions,mark the documents making up the application witha file number and the date of receipt at the Officeand shall issue a receipt to the applicant. The receiptshall include the file number of the Office, thenumber of documents received, the date of receiptat the Office and the date of application within themeaning of Article 51 of the basic Regulation. A copyof the receipt shall be issued to the national agencyor sub-office via which the Office has received theapplication.

3. If the Office receives an application via a sub-office or national agency more than one month afterits filing by the applicant, the “date of application”within the meaning of Article 51 of the basicRegulation may not be earlier than the date of receiptat the Office, unless the Office establishes on thebasis of sufficient documentary evidence that theapplicant has forwarded an information to it inaccordance with Article 49(1)(b) of the basicRegulation and Article 16(2) of this Regulation.

Article 18Conditions laid down in Article 50(1) of

the basic Regulation

1. If the Office finds that the application does notcomply with the conditions laid down in Article 50(1)of the basic Regulation, it shall notify to the applicantthe deficiencies it has found, stating that only such

date as sufficient information remedying thosedeficiencies is received shall be treated as the dateof application for the purposes of Article 51 of thatRegulation.

2. An application complies with the condition laiddown in Article 50(1)(i) of the basic Regulation onlyif date and country of any first disposal within themeaning of Article 10(1) of that Regulation areindicated, or if, in the absence of such disposal adeclaration is made that no such disposal hasoccurred.

3. An application complies with the condition laiddown in Article 50(1)(j) of the basic Regulation onlyif the date and the country given in any earlierapplication for the variety are, to the best of theapplicant’s knowledge, indicated in respect of:

- an application for a property right in respect of thevariety, and

- an application for official acceptance of the varietyfor certification and marketing where officialacceptance includes an official description of thevariety,

in a Member State or a Member of the InternationalUnion for the Protection of New Varieties of Plants.

Article 19Conditions referred to in Article 50(2)

of the basic Regulation

1. If the Office finds that the application does notcomply with the provisions of paragraphs 2, 3 and4 of this Article or with Article 16 of this Regulation,it shall apply Article 17(2) hereof, but shall requirethe applicant to remedy the deficiencies it has foundwithin such time limit as it may specify. Where thosedeficiencies are not remedied in good time the Officeshall without delay refuse the application, pursuantto Article 61(1)(a) of the basic Regulation.

2. The application shall contain the following details:

(a) the nationality of the applicant, if he is a naturalperson, and his designation as party to proceedingsreferred to in Article 2 of this Regulation and, if he isnot the breeder, the name and address of thebreeder;


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(b) the Latin name of the genus, species or sub-species to which the variety belongs, and thecommon name;

(c) the characteristics of the variety which, in theapplicant’s opinion, are clearly distinguishable fromother varieties, such other varieties being named(if appropriate) as reference varieties for testing;

(d) breeding, maintenance and propagation of thevariety, including information on:

- the characteristics, the variety denomination or, inthe absence thereof, the provisional designation,and the cultivation of any other variety or varietiesthe material of which has to be used repeatedly forthe production of the variety, or

- characteristics which have been geneticallymodified, where the variety concerned representsa genetically modified organism within the meaningof Article 2(2) of Directive 2001/18/EC of theEuropean Parliament and of the Council [4];

(e) the region and the country in which the varietywas bred or discovered and developed;

(f) date and country of any first disposal of varietalconstituents or harvested material of the variety, forthe purposes of assessing novelty in accordancewith Article 10 of the basic Regulation, or adeclaration that such disposal has not yet occurred;

(g) the designation of the authority applied to andthe file number of the applications referred to inArticle 18(3) of this Regulation;

(h) existing national plant variety rights or any patentfor the variety operating within the Community.3. The Office may call for any necessary informationand documentation, and, if necessary, sufficientdrawings or photographs for the conduct of thetechnical examination within such time limit as itshall specify.

4. Where the variety concerned represents agenetically modified organism within the meaningof Article 2(2) of Directive 2001/18/EC, the Officemay require the applicant to transmit a copy of thewritten attestation of the responsible authoritiesstating that a technical examination of the variety

under Articles 55 and 56 of the basic Regulationdoes not pose risks to the environment accordingto the norms of that Directive.

Article 20Claiming priority

If the applicant claims a right of priority for anapplication within the meaning of Article 52(2) ofthe basic Regulation, which is not the earliest ofthose to be indicated pursuant to the first indent ofArticle 18(3) of this Regulation, the Office shall statethat a priority date can only be given to such earlierapplication. Where the Office has issued a receiptincluding the date of filing of an application which isnot the earliest of those to be indicated, the prioritydate notified shall be considered void.

Article 21Entitlement to a Community plant variety right

during proceedings

1. When the commencement of an action againstthe applicant in respect of a claim referred to inArticle 98(4) of the basic Regulation has beenentered in the Register of Applications forCommunity plant variety rights, the Office may staythe application proceedings. The Office may set adate on which it intends to continue the proceedingspending before it.

2. When a final decision in, or any other terminationof, the action referred to in paragraph 1 has beenentered in the Register of Applications forCommunity plant variety rights, the Office shallresume proceedings. It may resume them at anearlier date, but not prior to the date already setpursuant to paragraph 1.

3. Where entitlement to a Community plant varietyright is validly transferred to another person for thepurposes of the Office, that person may pursue theapplication of the first applicant as if it were his own,provided that he gives notice to this effect to theOffice within one month of the entry of final judgmentin the Register of Applications for Community plantvariety rights. Fees due pursuant to Article 83 ofthe basic Regulation and already paid by the first



17

applicant shall be deemed to have been paid by thesubsequent applicant.

Section 2Conduct of the technical examination

Article 22Decision on test guidelines

1. Upon proposal of the President of the Office, theAdministrative Council shall take a decision as totest guidelines. The date of the decision and thespecies concerned by it shall be published in theOfficial Gazette referred to in Article 87.

2. In the absence of a decision of the AdministrativeCouncil as to test guidelines, the President of theOffice may take a provisional decision thereon. Theprovisional decision shall lapse on the date of thedecision of the Administrative Council. Where theprovisional decision of the President of the Officedeviates from the decision of the AdministrativeCouncil, a technical examination started prior to thedecision of the Administrative Council shall not beaffected The Administrative Council may decideotherwise, if circumstances so dictate.

Article 23Powers vested in the President of the Office

1. Where the Administrative Council takes a decisionon test guidelines, it shall include a power wherebythe President of the Office may insert additionalcharacteristics and their expressions in respect ofa variety.

2. Where the President of the Office makes use ofthe power referred to in paragraph 1, Article 22(2)shall apply mutatis mutandis.

Article 24Notification by the Office of

the Examination Office

In accordance with Article 55(3) of the basicRegulation, the Office shall transmit copies of thefollowing documents relating to the variety to theExamination Office:

(a) the application form, the technical questionnaireand each additional document submitted by the

applicant containing information needed for theconduct of the technical examination;

(b) the forms filled out by the applicant pursuant toArticle 86 of this Regulation;

(c) documents relating to an objection based on thecontention that the conditions laid down in Articles7, 8 and 9 of the basic Regulation have not beenmet.

Article 25Cooperation between the Office and

the Examination Office

The staff of the Examination Office responsible forthe technical examination and the rapporteurdesignated in accordance with Article 8(1) shallcooperate in all phases of a technical examination.Cooperation shall cover at least the followingaspects:

(a) the monitoring of the conduct of the technicalexamination, including the inspection of thelocations of the test plots and the methods used forthe tests by the rapporteur;

(b) without prejudice to other investigations by theOffice, information from the Examination Officeabout details of any previous disposal of the variety;and

(c) the submission by the Examination Office to theOffice of interim reports on each growing period.

Article 26Form of the examination reports

1. The examination report referred to in Article 57of the basic Regulation shall be signed by theresponsible member of the staff of the ExaminationOffice and shall expressly acknowledge theexclusive rights of disposal of the Office under Article57(4) of that Regulation.

2. The provisions of paragraph 1 shall apply mutatismutandis to any interim reports to be submitted tothe Office. The Examination Office shall issue a copyof each interim report direct to the applicant.


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Article 27Other examination reports

1. An examination report on the results of anytechnical examination which has been carried outor is in the process of being carried out for officialpurposes in a Member State by one of the officesresponsible for the species concerned pursuant toArticle 55(1) of the basic Regulation may beconsidered by the Office to constitute a sufficientbasis for decision, provided that:

(a) the material submitted for the technicalexamination has complied, in quantity and quality,with any standards that may have been laid downpursuant to Article 55(4) of the basic Regulation;

(b) the technical examination has been carried outin a manner consistent with the designations by theAdministrative Council pursuant to Article 55(1) ofthe basic Regulation, and has been conducted inaccordance with the test guidelines issued, ongeneral instructions given, pursuant to Article 56(2)of that Regulation and Articles 22 and 23 of thisRegulation;

(c) the Office has had the opportunity to monitorthe conduct of the technical examination concerned;and

(d) where the final report is not immediatelyavailable, the interim reports on each growing periodare submitted to the Office prior to the examinationreport.

2. Where the Office does not consider theexamination report referred to in paragraph 1 toconstitute a sufficient basis for a decision, it mayfollow the procedure laid down in Article 55 of thebasic Regulation, after consulting the applicant andthe Examination Office concerned.

3. The Office and each competent national plantvariety office in a Member State shall giveadministrative assistance to the other by makingavailable, upon request, any examination reportson a variety, for the purpose of assessingdistinctiveness, uniformity and stability of that variety.A specific amount shall be charged by the Office orthe competent national plant variety office for thesubmission of such a report, such amount beingagreed by the offices concerned.

4. An examination report on the results of a technicalexamination which has been carried out or is in theprocess of being carried out for official purposes ina third country which is Member of the InternationalUnion for the Protection of New Varieties of Plantsmay be considered by the Office to constitute asufficient basis for decision, provided the technicalexamination complies with the conditions laid downin a written agreement between the Office and thecompetent authority of such third country. Suchconditions shall at least include:

(a) those related to the material, as referred to inpoint (a) of paragraph 1;

(b) that the technical examination has beenconducted in accordance with the test guidelinesissued, or general instructions given, pursuant toArticle 56(2) of the basic Regulation;

(c) that the Office has had the opportunity to assessthe suitability of facilities for carrying out a technicalexamination for the species concerned in that thirdcountry and to monitor the conduct of the technicalexamination concerned; and

(d) those related to the availability of reports, as laiddown in point (d) of paragraph 1.

Section 3Variety denomination

Article 28Proposal for a variety denomination

The proposal for a variety denomination shall besigned and shall be filed at the Office, or, if theproposal accompanies the application for aCommunity plant variety right filed at the nationalagency designated or the sub-office establishedpursuant to Article 30(4) of the basic Regulation, induplicate.

The Office shall make available, free of charge, aform for the purposes of proposing a varietydenomination.

Where the proposal for a variety denomination issubmitted by electronic means it shall comply withthe second subparagraph of Article 57(3) of thisRegulation as regards the signature.



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Article 29Examination of a proposal

1. Where the proposal does not accompany theapplication for a Community plant variety right orwhere a proposed variety denomination cannot beapproved by the Office, the Office shall without delaycommunicate this to the applicant, shall require himto submit a proposal or a new proposal and shallindicate the consequences of failure to do so.

2. Where the Office establishes at the time of receiptof the results of the technical examination pursuantto Article 57(1) of the basic Regulation that theapplicant has not submitted any proposal for avariety denomination, it shall without delay refusethe application for a Community plant variety rightin accordance with Article 61(1)(c) of thatRegulation.

Article 30Guidelines for variety denomination

The Administrative Council shall adopt guidelinesestablishing uniform and definitive criteria fordetermining impediments to the generic designationof a variety denomination referred to in Article 63(3)and (4) of the basic Regulation.

CHAPTER IIObjection

Article 31Filing of objections

1. Objections under Article 59 of the basicRegulation shall contain:

(a) the name of the applicant and the file number ofthe application to which the objection is lodged;

(b) the designation of the objector as a party toproceedings as set out in Article 2 of this Regulation;

(c) if the objector has appointed a proceduralrepresentative, his name and address;

(d) a statement on the contention referred to inArticle 59(3) of the basic Regulation on which theobjection is based, and on particulars, items ofevidence and arguments presented in support ofthe objection.

2. If several objections in respect of the sameapplication for a Community plant variety right arefiled, the Office may deal with those objections inone set of proceedings.

Article 32Rejection of objections

1. If the Office finds that the objection does notcomply with Article 59(1) and (3) of the basicRegulation or Article 31(1)(d) of this Regulation orthat it does not provide sufficient identification ofthe application against which objection is lodged, itshall reject the objection as inadmissible unlesssuch deficiencies have been remedied within suchtime limit as it may specify.

2. If the Office notes that the objection does notcomply with other provisions of the basic Regulationor of this Regulation, it shall reject the objection asinadmissible unless such deficiencies have beenremedied prior to the expiry of the objection periods.

CHAPTER IIIMaintenance of Community plant variety rights

Article 33Obligations of the holder under Article 64(3)


1. The holder shall permit inspection of material ofthe variety concerned and of the location where theidentity of the variety is preserved, in order to furnishthe information necessary for assessing thecontinuance of the variety in its unaltered state,pursuant to Article 64(3) of the basic Regulation.

2. The holder shall be required to keep writtenrecords in order to facilitate verification ofappropriate measures referred to in Article 64(3) ofthe basic Regulation.


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Article 34Technical verification of the protected variety

Without prejudice to Article 87(4) of the basicRegulation, a technical verification of the protectedvariety shall be conducted in accordance with thetest guidelines duly applied when the Communityplant variety right was granted in respect of thatvariety. Articles 22 and 24 to 27 of this Regulationshall apply mutatis mutandis to the Office, theExamination Office and to the holder.

Article 35Other material to be used for a

technical verification

When the holder has submitted material of thevariety in accordance with Article 64(3) of the basicRegulation, the Examination Office may, with theconsent of the Office, verify the submitted materialby inspecting other material which has been takenfrom holdings where material is produced by theholder, or with his consent, or taken from materialbeing marketed by him, or with his consent, or takenby official bodies in a Member State by virtue oftheir powers.

Article 36Amendments of the variety denominations

1. Where the variety denomination has to beamended in accordance with Article 66 of the basicRegulation, the Office shall communicate thegrounds thereof to the holder, shall set up a timelimit within which the holder must submit a suitableproposal for an amended variety denomination, andshall state that, should he fail to do so, theCommunity plant variety right may be cancelledpursuant to Article 21 of that Regulation.

2. Where the proposal for an amended varietydenomination cannot be approved by the Office, theOffice shall without delay inform the holder, shallagain set a time limit within which the holder mustsubmit a suitable proposal, and shall state that,should he fail to comply, the Community plant varietyright may be cancelled pursuant to Article 21 of thebasic Regulation.

3. Articles 31 and 32 of this Regulation shall applymutatis mutandis to an objection lodged pursuantto Article 66(3) of the basic Regulation.

4. Where the proposal for an amendment of a varietydenomination is submitted by electronic means itshall comply with the second subparagraph of Article57(3) as regards the signature.

CHAPTER IVCommunity licences to be granted by the Office

Section 1Compulsory licences pursuant to Article 29 of the

basic Regulation

Article 37Applications for a compulsory licence

1. The application for a compulsory licence pursuantto Article 29(1), (2) and (5) of the basic Regulationshall contain:

(a) the designation of the applicant and the opposingholder of the variety concerned as parties toproceedings;

(b) the variety denomination and the plant speciesof the variety or varieties concerned;

(c) a proposal for the type of acts to be covered bythe compulsory licence;

(d) a statement setting out the public interestconcerned, including details of facts, items ofevidence and arguments presented in support ofthe public interest claimed;

(e) in the case of an application referred to in Article29(2) of the basic Regulation, a proposal for thecategory of persons to which the compulsory licenceshall be granted, including, as the case may be, thespecific requirements related to that category ofpersons;

(f) a proposal for an equitable remuneration andthe basis for calculating the remuneration.

2. The application for a compulsory licence referredto in Article 29(5a) of the basic Regulation shallcontain:

(a) the designation of the applicant holding a patentright and the opposing holder of the varietyconcerned as parties to proceedings;



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(c) a certified copy of the patent certificate showingthe number and claims of the patent for abiotechnological invention and the granting authorityof the patent;

(d) a proposal for the type of acts to be covered bythe compulsory licence;

(e) a proposal for an equitable remuneration andthe basis for calculating the remuneration;

(f) a statement setting out why the biotechnologicalinvention constitutes significant technical progressof considerable economic interest compared withthe protected variety, including details of facts, itemsof evidence and arguments in support of the claim;

(g) a proposal for the territorial scope of the licence,which may not exceed the territorial scope of thepatent referred to in point (c).

3. The application for a cross-licence referred to inthe second subparagraph of Article 29(5a) of thebasic Regulation shall contain:

(a) the designation of the applicant holding a patentright and the opposing holder of the varietyconcerned as parties to proceedings;


(c) a certified copy of the patent certificate showingthe number and claims of the patent for abiotechnological invention and the granting authorityof the patent;

(d) an official document showing that a compulsorylicence for a patented biotechnological invention hasbeen granted to the holder of the plant variety right;

(e) a proposal for the type of acts to be covered bythe cross-licence;

(f) a proposal for an equitable remuneration andthe basis for calculating the remuneration;

(g) a proposal for the territorial scope of the cross-licence, which may not exceed the territorial scopeof the patent referred to in point (c).

4. The application for a compulsory licence shall beaccompanied by documents evidencing that theapplicant has applied unsuccessfully to obtain acontractual licence from the holder of the plantvariety right. Should the Commission or a MemberState be the applicant for a compulsory licencepursuant to Article 29(2) of the basic Regulation,the Office may waive this condition in the case offorce majeure.

5. A request for a contractual licence shall beconsidered unsuccessful within the meaning ofparagraph 4 if:

(a) the opposing holder has not given a final replyto the person seeking such right within a reasonableperiod; or

(b) the opposing holder has refused to grant acontractual licence to the person seeking it; or

(c) the opposing holder has offered a licence to theperson seeking it, on obviously unreasonablefundamental terms including those relating to theroyalty to be paid, or on terms which, seen as awhole, are obviously unreasonable.

Article 38Examination of the application for a

compulsory licence

1. Oral proceedings and the taking of evidence shallin principle be held together in one hearing.

2. Requests for further hearings shall beinadmissible except for those requests based oncircumstances which have undergone changeduring or after the hearing.

3. Before taking a decision, the Office shall invitethe parties concerned to come to an amicablesettlement on a contractual licence. If appropriate,the Office shall make a proposal for such anamicable settlement.


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Article 39Tenure of a Community plant variety right

during the proceedings

1. If the commencement of an action in respect of aclaim referred to in Article 98(1) of the basicRegulation against the holder has been entered inthe Register of Community Plant Variety Rights, theOffice may suspend the proceedings on the grantof a compulsory licence. It shall not resume themprior to the entry in the same Register of the finaljudgment upon, or any other termination of, suchaction.

2. If a transfer of the Community plant variety rightis binding on the Office, the new holder shall enterthe proceedings as a party thereto, upon request ofthe applicant, if that applicant has unsuccessfullyrequested the new holder to grant him a licencewithin two months of receipt of communication fromthe Office that the name of the new holder has beenentered in the Register of Community Plant VarietyRights. A request from the applicant shall beaccompanied by sufficient documentary evidenceof his vain attempt and, if appropriate, of the conductof the new holder.

3. In the case of an application referred to in Article29(2) of the basic Regulation, the new holder shallenter the proceedings as a party thereto. Paragraph1 of this Article shall not apply.

Article 40Contents of the decision on the application

The written decision shall be signed by the Presidentof the Office. The decision shall contain:

(a) a statement that the decision is delivered by theOffice;

(b) the date when the decision was taken;

(c) the names of the members of the committeehaving taken part in the proceedings;

(d) the names of the parties to the proceedings andof their procedural representatives;

(e) the reference to the opinion of the AdministrativeCouncil;

(f) a statement of the issues to be decided;

(g) a summary of the facts;

(h) the grounds on which the decision is based;

(i) the order of the Office; if need be, the order shallinclude the stipulated acts covered by thecompulsory licence, the specific conditionspertaining thereto and the category of persons,including where appropriate the specificrequirements relating to that category.

Article 41Grant of a compulsory licence

1. The decision to grant a compulsory licencepursuant to Article 29(1), (2) and (5) of the basicRegulation shall contain a statement setting out thepublic interest involved.

2. The following grounds may in particular constitutea public interest:

(a) the protection of life or health of humans, animalsor plants;

(b) the need to supply the market with materialoffering specific features;

(c) the need to maintain the incentive for continuedbreeding of improved varieties.

3. The decision to grant a compulsory licencepursuant to Article 29(5a) of the basic Regulationshall contain a statement setting out the reasonswhy the invention constitutes significant technicalprogress of considerable economic interest. Thefollowing grounds may in particular constitutereasons why the invention constitutes significanttechnical progress of considerable economicinterest compared to the protected plant variety:

(a) improvement of cultural techniques;

(b) improvement of the environment;

(c) improvement of techniques to facilitate the useof genetic biodiversity;

(d) improvement of quality;



23

(e) improvement of yield;

(f) improvement of resistance;

(g) improvement of adaptation to specificclimatological and/or environmental conditions.

4. The compulsory licence shall be non-exclusive.

5. The compulsory licence may not be transferredotherwise than together with that part of anenterprise which makes use of the compulsorylicence, or, in the circumstances set out in Article29(5) of the basic Regulation, together with theassignment of the rights of an essentially derivedvariety.

Article 42Conditions pertaining to the person to whom a

compulsory licence is granted

1. Without prejudice to the other conditions referredto in Article 29(3) of the basic Regulation, the personto whom the compulsory licence is granted shallhave the appropriate financial and technical capacityto make use of the compulsory licence.

2. Compliance with the conditions pertaining to thecompulsory licence and laid down in the decisionthereon shall be considered a “circumstance” withinthe meaning of Article 29(4) of the basic Regulation.

3. The Office shall provide that the person to whoma compulsory licence is granted may not bring alegal action for infringement of a Community plantvariety right unless the holder has refused orneglected to do so within two months after being sorequested.

Article 43Category of persons satisfying specificrequirements pursuant to Article 29(2)


1. Any person intending to make use of acompulsory licence who comes under the categoryof persons satisfying specific requirements referredto in Article 29(2) of the basic Regulation shalldeclare his intention to the Office and to the holderby registered letter with advice of delivery. Thedeclaration shall include:

(a) the name and address of that person as laiddown for parties to proceedings pursuant to Article2 of this Regulation;

(b) a statement on the facts meeting the specificrequirements;

(c) a statement setting out the acts to be effected;and

(d) an assurance that that person has theappropriate financial resources as well asinformation about his technical capacity, to makeuse of the compulsory licence.

2. Upon request, the Office shall enter a person inthe Register of Community Plant Variety Rights ifsuch person has fulfilled the conditions relating tothe declaration referred to in paragraph 1. Suchperson shall not be entitled to make use of thecompulsory licence prior to the entry. The entry shallbe communicated to that person and the holder.

3. Article 42(3) shall apply mutatis mutandis to aperson entered in the Register of Community PlantVariety Rights pursuant to paragraph 2 of this Article.Any judgment, or other termination, of the legalaction in respect of the act of infringement shallapply to the other persons entered or to be entered.

4. The entry referred to in paragraph 2 may bedeleted on the sole ground that the specificrequirements laid down in the decision on the grantof a compulsory licence or the financial and technicalcapacities established pursuant to paragraph 2 haveundergone change more than one year after thegrant of the compulsory licence and within any timelimit stipulated in that grant. The deletion of the entryshall be communicated to the person entered andthe holder.

Section 2Exploitation rights pursuant to Article 100(2)


Article 44Exploitation rights pursuant to Article 100(2)


1. A request for a contractual non-exclusiveexploitation right from a new holder, as referred toin Article 100(2) of the basic Regulation, shall be


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made, in the case of the former holder within twomonths, or in the case of a person having enjoyedan exploitation right within four months, of receiptof notification from the Office that the name of thenew holder has been entered in the Register ofCommunity Plant Variety Rights.

2. An application for an exploitation right to begranted pursuant to Article 100(2) of the basicRegulation shall be accompanied by documentssupporting the unsuccessful request referred to inparagraph 1 of this Article. The provisions of Article37(1)(a), (b), (c) and (5), Article 38, Article 39(3),Article 40 except letter (f), Article 41(3) and (4) andArticle 42 of this Regulation shall apply mutatismutandis.

TITLE IIIPROCEEDINGS BEFORE THE BOARD OF

APPEAL

Article 45Contents of the notice of appeal

The notice of appeal shall contain:

(a) the designation of the appellant as a party toappeal proceedings in accordance with Article 2;(b) the file number of the decision against whichthe appeal is lodged and a statement as to the extentto which amendment or cancellation of the decisionis sought.

Article 46Receipt of the notice of appeal

Where the Office receives a notice of appeal, it shallmark it with a file number of the appeal proceedingsand the date of receipt at the Office and shall notifythe appellant of the time limit for setting out thegrounds of the appeal; any omission of such noticemay not be pleaded.

Article 47Participation as a party to the appeal proceedings

1. The Office shall promptly transmit a copy of thenotice of appeal marked with the file number andthe date of its receipt to the parties to proceedingshaving participated in the proceedings before theOffice.

2. The parties to proceedings referred to inparagraph 1 may intervene as parties to the appealproceedings within two months of transmission ofa copy of the notice of appeal.

Article 48Role of the Office

1. The body of the Office referred to in Article 70(1)of the basic Regulation and the chairman of theBoard of Appeal shall ensure by internal preparatorymeasures that the Board of Appeal can examinethe case immediately after its remittal; the chairmanshall in particular select the two other members inaccordance with Article 46(2) of that Regulation andshall designate a rapporteur, prior to the remittal ofthe case.

2. Prior to the remittal of the case, the body of theOffice referred to in Article 70(1) of the basicRegulation shall promptly transmit a copy of thedocuments received by a party to the appealproceedings to the other parties to the appealproceedings.

3. The President of the Office shall provide for thepublication of the information referred to in Article89, prior to the remittal of the case.

Article 49Rejection of the appeal as inadmissible

1. If the appeal does not comply with the provisionsof the basic Regulation and in particular Articles 67,68 and 69 thereof or those of this Regulation and inparticular Article 45 thereof, the Board of Appealshall so inform the appellant and shall require himto remedy the deficiencies found, if possible, withinsuch period as it may specify. If the appeal is notrectified in good time, the Board of Appeal shallreject it as inadmissible.

2. Where an appeal is lodged against a decision ofthe Office against which an action under Article 74of the basic Regulation is likewise lodged, the Boardof Appeal shall forthwith submit the appeal as anaction to the Court of Justice of the EuropeanCommunities, with the consent of the appellant; ifthe appellant does not consent, it shall reject theappeal as inadmissible. In the case of thesubmission of an appeal to the Court of Justice,



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such an appeal shall be deemed to have beenlodged with the Court of Justice as at the date ofreceipt at the Office under Article 46 of thisRegulation.

Article 50Oral proceedings

1. After the remittal of the case, the chairman of theBoard of Appeal shall, without delay, summon theparties to the appeal proceedings to oralproceedings as provided for in Article 77 of the basicRegulation and shall draw their attention to thecontents of Article 59(2) of this Regulation.

2. The oral proceedings and the taking of evidenceshall in principle be held in one hearing.

3. Requests for further hearings shall beinadmissible except for requests based oncircumstances which have undergone changeduring or after the hearing.

Article 51Examination of appeals

Unless otherwise provided, the provisions relatingto proceedings before the Office shall apply toappeal proceedings mutatis mutandis; parties toproceedings shall in that regard be treated as partiesto appeal proceedings.

Article 52Decision on the appeal

1. Within three months after closure of the oralproceedings, the decision on the appeal shall beforwarded in writing, by any means provided for inArticle 64(3), to the parties to the appealproceedings.

2. The decision shall be signed by the chairman ofthe Board of Appeal and by the rapporteurdesignated pursuant to Article 48(1). The decisionshall contain:

(a) a statement that the decision is delivered by theBoard of Appeal;

(b) the date when the decision was taken;

(c) the names of the chairman and of the othermembers of the Board of Appeal having taken partin the appeal proceedings;

(d) the names of the parties to the appealproceedings and their procedural representatives;

(e) a statement of the issues to be decided;

(f) a summary of the facts;

(g) the grounds on which the decision is based;

(h) the order of the Board of Appeal, including, wherenecessary, a decision as to the award of costs orthe refund of fees.

3. The written decision of the Board of Appeal shallbe accompanied by a statement that further appealis possible, together with the time limit for lodgingsuch further appeal. The parties to the appealproceedings may not plead the omission of thatstatement.

TITLE IVGENERAL PROVISIONS RELATING TO

PROCEEDINGS

CHAPTER IDecisions, communications and documents

Article 53Decisions

1. Any decision of the Office is to be signed by andto state the name of the member of staff dulyauthorised by the President of the Office inaccordance with Article 35 of the basic Regulation.

2. Where oral proceedings are held before theOffice, the decisions may be given orally.Subsequently, the decision in writing shall be servedon the parties to proceedings in accordance withArticle 64.

3. Decisions of the Office which are open to appealunder Article 67 of the basic Regulation or to directaction under Article 74 thereof shall be accompaniedby a statement of that appeal or direct action ifpossible, together with the time limits provided for


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lodging such appeal or direct action. The parties toproceedings may not plead the omission of thatstatement.

4. Linguistic errors, errors of transcription and patentmistakes in decisions of the Office shall becorrected.

Article 54Certificate for a Community plant variety right

1. Where the Office grants a Community plantvariety right, it shall issue, together with the decisionthereon, a certificate for the Community plant varietyright as evidence of the grant.

2. The Office shall issue the certificate for theCommunity plant variety right in whichever officiallanguage or languages of the European Union isrequested by the holder.

3. On request, the Office may issue a copy to theperson entitled if it establishes that the originalcertificate has been lost or destroyed.

Article 55Communications

Unless otherwise provided, any communication bythe Office or an Examination Office shall includethe name of the competent member of the staff.

Article 56Right of audience

1. If the Office finds that a decision may not beadopted in the terms sought, it shall communicatethe deficiencies noted to the party to the proceedingsand shall require him to remedy those deficiencieswithin such time limit as it may specify. If thedeficiencies noted and communicated are notremedied in good time, the Office shall proceed totake its decision.

2. If the Office receives observations from a partyto proceedings, it shall communicate thoseobservations to the other parties to the proceedingsand shall require them, if it considers it necessary,to reply within such time limit as it may specify. If areply is not received in good time, the Office shalldisregard any document received later.

Article 57Documents filed by parties to proceedings

1. Any documents filed by a party to proceedingsshall be submitted by post, personal delivery orelectronic means.

The details concerning electronic submissions shallbe determined by the President of the Office.

2. The date of receipt of any document filed byparties to proceedings shall be deemed to be thedate on which a document is in fact received on thepremises or in the case of a document filed byelectronic means, when the document is receivedelectronically by the Office.

3. With the exception of annexed documents, anydocuments filed by parties to proceedings must besigned by them or their procedural representative.

Where a document is submitted to the Office byelectronic means, it shall contain an electronicsignature.

4. If a document has not duly been signed, or wherea document received is incomplete or illegible, orwhere the Office has doubts as to the accuracy ofthe document, the Office shall inform the senderaccordingly and shall invite him to submit the originalof the document signed in accordance withparagraph 3, or to retransmit a copy of the original,within a time limit of one month.

Where the request is complied with within the periodspecified, the date of receipt of the signed documentor of the retransmission shall be deemed to be thedate of the receipt of the first document. Where therequest is not complied with within the periodspecified, the document shall be deemed not tohave been received.

5. Such document as must be communicated toother parties to proceedings as well as to theExamination Office concerned, or documentsrelating to two or more applications for a Communityplant variety right or an exploitation right, shall befiled in a sufficient number of copies. Missing copiesshall be provided at the expense of the party to theproceedings.



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The first subparagraph shall not apply to documentssubmitted by electronic means.

Article 58Documentary evidence

1. Evidence of final judgments and decisions, otherthan those of the Office, or other documentaryevidence to be submitted by parties to proceedings,may be furnished by submitting an uncertified copy.

2. Where the Office has doubts as to the authenticityof the evidence referred to in paragraph 1, it mayrequire submission of the original or a certified copy.

CHAPTER IIOral proceedings and taking of evidence

Article 59Summons to oral proceedings

1. The parties to proceedings shall be summonedto oral proceedings provided for in Article 77 of thebasic Regulation and their attention shall be drawnto paragraph 2 hereof. At least one month’s noticeof the summons dispatched to the parties toproceedings shall be given unless the parties toproceedings and the Office agree on a shorterperiod.

2. If a party to proceedings who has duly beensummoned to oral proceedings before the Officedoes not appear as summoned, the proceedingsmay continue without him.

Article 60Taking of evidence by the Office

1. Where the Office considers it necessary to hearthe oral evidence of parties to proceedings or ofwitnesses or experts, or to carry out an inspection,it shall take a decision to that effect, stating themeans by which it intends to obtain evidence, therelevant facts to be proved and the date, time andplace of hearing or inspection. If oral evidence fromwitnesses and experts is requested by a party toproceedings, the decision of the Office shall statethe period of time within which the party toproceedings filing the request must make known to

the Office the names and addresses of thewitnesses and experts whom the party toproceedings wishes to be heard.

2. At least one month’s notice of a summonsdispatched to a party to proceedings, witness orexpert to give evidence shall be given unless theOffice and they agree to a shorter period. Thesummons shall contain:

(a) an extract from the decision referred to inparagraph 1, indicating in particular the date, timeand place of the investigation ordered and settingout the facts regarding which parties to proceedings,witnesses and experts are to be heard;

(b) the names of the parties to proceedings andparticulars of the rights which the witnesses orexperts may invoke under the provisions of Article62(2), (3) and (4);

(c) a statement that the party to proceedings,witness or expert may ask to be heard by thecompetent judicial or other authority in his countryof domicile and a request that he inform the Officewithin a time limit to be fixed by the Office whetherhe is prepared to appear before it.

3. Before a party to proceedings, a witness or anexpert may be heard, he shall be informed that theOffice may request the competent judicial or otherauthority in his country of domicile to re-examinehis evidence on oath or in some other binding form.

4. The parties to proceedings shall be informed ofthe hearing of a witness or expert before acompetent judicial or other authority. They shall havethe right to be present and to put questions to thetestifying parties to proceedings, witnesses andexperts, either through the intermediary of theauthority or direct.

Article 61Commissioning of experts

1. The Office shall decide in what form the report tobe made by an expert whom it appoints shall besubmitted.


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2. The mandate of the expert shall contain:

(a) a precise description of his task;

(b) the time limit laid down for the submission of thereport;

(c) the names of the parties to the proceedings;

(d) particulars of the rights which he may invokeunder Article 62(2), (3) and (4).

3. For the purposes of the expert’s report, the Officemay require the Examination Office havingconducted the technical examination of the varietyconcerned to make available material in accordancewith instructions given. If necessary, the Office mayalso require material from parties to proceedingsor third persons.

4. The parties to proceedings shall be provided witha copy and, where appropriate, a translation of anywritten report.

5. The parties to proceedings may object to anexpert. Articles 48(3) and 81(2) of the basicRegulation shall apply mutatis mutandis.

6. Article 13(2) and (3) shall apply mutatis mutandisto the expert appointed by the Office. Whenappointing the expert, the Office shall inform him ofthe requirement of confidentiality.

Article 62Costs of taking evidence

1. The taking of evidence may be made conditionalupon deposit with the Office, by the party toproceedings who requested that such evidence betaken, of a sum to be quantified by the Office byreference to an estimate of the costs.

2. Witnesses and experts who are summoned byand who appear before the Office shall be entitledto appropriate reimbursement of expenses for traveland subsistence. An advance may be granted tothem.

3. Witnesses entitled to reimbursement underparagraph 2 shall also be entitled to appropriatecompensation for loss of earnings, and expertsunless members of the staff of the Examination

Offices, to fees for their work. Those payments shallbe made to the witnesses after the taking ofevidence and to the experts after they have fulfilledtheir duties or tasks.

4. Payments of amounts due pursuant to paragraphs2 and 3 and in accordance with the details andscales laid down in Annex I shall be made by theOffice.

Article 63Minutes of oral proceedings and of

taking of evidence

1. Minutes of oral proceedings and of the taking ofevidence shall record the essentials of the oralproceedings or of the taking of evidence, therelevant statements made by the parties toproceedings, the testimony of the parties toproceedings, witnesses or experts and the result ofany inspection.

2. The minutes of the testimony of a witness, expertor party to proceedings shall be read out orsubmitted to him so that he may examine them. Itshall be noted in the minutes that this formality hasbeen carried out and that the person who gave thetestimony approved the minutes. Where hisapproval is not given, his objections shall be noted.

3. The minutes shall be signed by the employeewho drew them up and by the employee whoconducted the oral proceedings or the taking ofevidence.

4. The parties to proceedings shall be provided witha copy and, where appropriate, a translation of theminutes.

CHAPTER IIIService

Article 64General provisions on service

1. In proceedings before the Office, any service ofdocuments to be made by the Office on a party toproceedings shall take the form of the originaldocument, of an uncertified copy thereof or acomputer print-out. Documents emanating fromother parties to proceedings may be served in theform of uncertified copies.



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2. If a procedural representative has been appointedby one or more parties to proceedings, service shallbe made on him in accordance with the provisionsof paragraph 1.

3. Service shall be made:

(a) by post in accordance with Article 65;

(b) by delivery by hand in accordance with Article66;

(c) by public notice in accordance with Article 67; or

(d) by electronic means or any other technicalmeans in accordance with the second sub-paragraph.

The President of the Office shall determine thedetails concerning service by electronic means.

4. Documents or copies thereof containing actionsfor which service is provided for in Article 79 of thebasic Regulation shall be served by registered letterwith advice of delivery served by postal means; itcan also be served by electronic means to bedetermined by the President of the Office.

Article 65Service by post

1. Service on addressees not having their domicileor their seat or establishment within the Communityand who have not appointed a proceduralrepresentative in accordance with Article 82 of thebasic Regulation shall be effected by posting thedocuments to be served by ordinary letter to theaddressee’s last address known to the Office.Service shall be deemed to have been effected byposting even if the letter is returned as undeliverable.

2. Where service is effected by registered letter,whether or not with advice of delivery, this shall bedeemed to have been delivered to the addresseeon the tenth day following its posting, unless theletter has failed to reach the addressee or hasreached him on a later day; in the event of anydispute, it shall be for the Office to establish thatthe letter has reached its destination or to establishthe date on which the letter was delivered to theaddressee, as the case may be.

3. Service by registered letter, whether or not withadvice of delivery, shall be deemed to have beeneffected even if the addressee refuses to acceptthe letter or to acknowledge receipt thereof.

4. Where service by post is not covered byparagraphs 1, 2 and 3, the law of the State on theterritory of which the service is made shall apply.

Article 66Service by hand delivery

On the premises of the Office, service of a documentmay be effected by delivery by hand to theaddressee, who shall on delivery acknowledge itsreceipt. Service shall be deemed to have takenplace even if the addressee refuses to accept thedocument or to acknowledge receipt thereof.

Article 67Public notice

If the address of the addressee cannot beestablished, or if service in accordance with Article64(4) has proved to be impossible even after asecond attempt by the Office, service shall beeffected by public notice, to be issued in theperiodical publication referred to in Article 89 of thebasic Regulation. The President of the Office shalldetermine details as to the issue of a public notice.

Article 68Irregularities in service

If the Office is unable to prove that a document whichhas reached the addressee has been duly served,or if provisions relating to its service have not beenobserved, the document shall be deemed to havebeen served on the date established by the Officeas the date of receipt.

CHAPTER IVTime limits and interruption of proceedings

Article 69Computation of time limits

1. Time limits shall be laid down in terms of full years,months, weeks or days.


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2. Time limits shall run from the day following theday on which the relevant event occurred, the eventbeing either an action or the expiry of another timelimit. Unless otherwise provided, the eventconsidered shall be the receipt of the documentserved, where the action consists in service.

3. Notwithstanding the provisions of paragraph 2,the time limits shall run from the 15th day followingthe day of publication of a relevant action, wherethe action is either the public notice referred to inArticle 67, a decision of the Office unless served tothe relevant person, or any action of a party toproceedings to be published.

4. When a time limit is expressed as one year or acertain number of years, it shall expire in the relevantsubsequent year in the month having the samename and on the day having the same number asthe month and the day on which the said eventoccurred; where the relevant subsequent month hasno day bearing the same number the time limit shallexpire on the last day of that month.

5. When a time limit is expressed as one month ora certain number of months, it shall expire in therelevant subsequent month on the day which hasthe same number as the day on which the said eventoccurred; where the relevant subsequent month hasno day bearing the same number the period shallexpire on the last day of that month.

6. Where a time limit is expressed as one week ora certain number of weeks, it shall expire in therelevant subsequent week on the day having thesame name as the day on which the said eventoccurred.

Article 70Duration of time limits

Where either the basic Regulation or this Regulationspecifies a time limit to be determined by the Office,such a time limit shall be not less than one monthand not more than three months. In certain specialcases, the time limit may be extended by up to sixmonths upon a request presented before the expiryof such time limit.

Article 71Extension of time limits

1. If a time limit expires on a day on which the Officeis not open for receipt of documents or on which,for reasons other than those referred to in paragraph2, ordinary mail is not delivered in the locality inwhich the Office is situated, the time limit shallextend until the first day thereafter on which theOffice is open for receipt of documents and on whichordinary mail is delivered. The days referred to inthe first sentence shall be as stated andcommunicated by the President of the Office beforethe commencement of each calendar year.

2. If a time limit expires on a day on which there is ageneral interruption or a subsequent dislocation inthe delivery of mail in a Member State or between aMember State and the Office, the time limit shall beextended until the first day following the end of theperiod of dislocation or interruption in the deliveryof mail for parties to proceedings having theirdomicile or seat or establishment in the MemberState concerned or having appointed proceduralrepresentatives with a seat in that State. Should theMember State concerned be the State in which theOffice is located, this provision shall apply to allparties to proceedings. The duration of the periodof interruption or dislocation shall be as stated andcommunicated by the President of the Office.

As regards documents submitted by electronicmeans, the first subparagraph shall apply mutatismutandis in cases where there is an interruption ofthe connection of the Office to the electronic meansof communication.

3. Paragraphs 1 and 2 shall apply mutatis mutandisto the national agencies, or the sub-officesdesignated, pursuant to Article 30(4) of the basicRegulation as well as to the Examination Offices.

Article 72Interruption of proceedings

1. Proceedings before the Office shall beinterrupted:

(a) in the event of the death or legal incapacity ofthe applicant for, or holder of, a Community plantvariety right or of the applicant for an exploitationright to be granted by the Office or of the person



31

entitled to enjoy such exploitation right, or of theprocedural representative of any of those parties;or

(b) in the event of a supervening legal impedimentto such person’s continuation of proceedings beforethe Office, due to some action taken against hisproperty.

2. When the necessary particulars in respect of theidentity of the person authorised to continueproceedings as party thereto or proceduralrepresentative have been entered in the relevantregister, the Office shall inform such person andthe other parties that the proceedings shall beresumed as from the date to be determined by theOffice.

3. The time limits in force shall begin afresh as fromthe day on which proceedings are resumed.

4. The interruption of proceedings shall not affectthe pursuit of the technical examination orverification of the variety concerned by anExamination Office where the relevant fees havealready been paid to the Office.

CHAPTER VProcedural representatives

Article 73Designation of a procedural representative

1. Any designation of a procedural representativeshall be communicated to the Office. Thecommunication shall contain the name and addressof the procedural representative; Article 2(2) and(3) shall apply mutatis mutandis.

2. Without prejudice to Article 2(4), thecommunication referred to in paragraph 1 shall alsoidentify as such any employee of the party toproceedings. An employee may not be designatedas a procedural representative within the meaningof Article 82 of the basic Regulation.

3. Failure to comply with the provisions ofparagraphs 1 and 2 shall lead to the communicationbeing deemed not to have been received.

4. A procedural representative whose mandate hasended shall continue to be considered as proceduralrepresentative until the termination of his mandatehas been communicated to the Office. Subject toany provisions to the contrary contained therein, amandate shall however, terminate vis-à-vis theOffice upon the death of the person who conferredit.

5. If there are two or more parties to proceedingsacting in common, which have not notified aprocedural representative to the Office, the party tothe proceedings first named in an application for aCommunity plan variety right or for an exploitationright to be granted by the Office or in an objectionshall be deemed to be designated as the proceduralrepresentative of the other party or parties to theproceedings.

Article 74Credentials of procedural representatives

1. Where the appointment of a proceduralrepresentative is notified to the Office, the necessarysigned credentials shall be presented for inclusionin the files within such period as the Office mayspecify unless otherwise provided. If the credentialsare not filed in due time, any procedural step takenby the procedural representative shall be deemednot to have been taken.

2. Credentials may cover one or more proceedingsand shall be filed in the corresponding number ofcopies. General credentials enabling a proceduralrepresentative to act in all the proceedings of theparty giving the credentials may be filed. A singledocument embodying the general credentials shallbe sufficient.

3. The President of the Office may determine thecontents of, and make available, forms forcredentials, including the general credentialsreferred to in paragraph 2, free of charge.


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CHAPTER VIApportionment and determination of costs

Article 75Awards of costs

1. A decision as to costs shall be dealt with in thedecision on the revocation or cancellation of aCommunity plant variety right, or the decision onthe appeal.

2. In the case of an award of costs pursuant to Article85(1) of the basic Regulation, the Office shall setout that award in the statement of the grounds ofthe decision on the revocation or cancellation of aCommunity plant variety right, or the decision onthe appeal. The parties to proceedings may notplead the omission of that indication.

Article 76Determination of costs

1. A request for the determination of costs shall beadmissible only if the decision has been taken inrespect of which the determination of costs isrequired and if, in the event of an appeal againstsuch decision, the Board of Appeal has decidedupon that appeal. A bill of costs, with supportingdocuments, shall be attached to the request.

2. Costs may be determined once their credibility isestablished.

3. Where one party to proceedings incurs the costsof another party to the proceedings, it shall not berequired to reimburse any costs other than thosereferred to in paragraph 4. Where the successfulparty to proceedings is represented by more thanone agent, adviser or advocate, the losing party shallbear the costs referred to in paragraph 4 for onesuch person only.

4. The costs essential to proceedings shall cover:

(a) costs of witnesses and experts paid by the Officeto the witness or expert concerned;

(b) expenses for travel and subsistence of a partyto proceedings and an agent, adviser or advocateduly designated as a procedural representative

before the Office, within the relevant scalesapplicable to witnesses and experts laid down inAnnex I;

(c) remuneration of an agent, adviser or advocateduly designated as the procedural representativeof a party to proceedings before the Office, withinthe scales laid down in Annex I.

Article 77Settlement of costs

In the event of a settlement of costs referred to inArticle 85(4) of the basic Regulation, the Office shallconfirm such settlement in a communication to theparties to the proceedings. Where suchcommunication confirms also a settlement as to theamount of costs to be paid, a request for thedetermination of costs shall be inadmissible.

TITLE VINFORMATION GIVEN TO THE PUBLIC

CHAPTER IRegisters, public inspection and publications

Section 1The Registers

Article 78Entries related to proceedings and to Communityplant variety rights, to be entered in the Registers

1. The following “other particulars” referred to inArticle 87(3) of the basic Regulation shall be enteredin the Register of Applications for Community PlantVariety Rights:

(a) date of publication where such publication is arelevant event for the computation of time limits;

(b) any objection, together with its date, the nameand address of the objector and those of hisprocedural representative;

(c) priority data (date and State of the earlierapplication);



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(d) any institution of actions in respect of claimsreferred to in Article 98(4) and Article 99 of the basicRegulation as to entitlement to the Community plantvariety right, and the final decision in, or of any othertermination of, any such action.

2. The following “other particulars” referred to inArticle 87(3) of the basic Regulation shall be enteredin the Register of Community Plant Variety Rights,upon request:

(a) the giving of a Community plant variety right asa security or as the object of any other rights in rem;or

(b) any institution of actions in respect of claimsreferred to in Article 98(1) and (2) and Article 99 ofthe basic Regulation and relating to the Communityplant variety right, and the final decision in, or ofany other termination of, any such action.

3. The President of the Office shall decide upon thedetails of the entries to be made and may decideupon further particulars to be entered in theRegisters for the purpose of the management ofthe Office.

The President of the Office shall determine the formof Registers. The Registers may be maintained inthe form of an electronic database.

Article 79Entry of transfer of a Community

plant variety right

1. Any transfer of Community plant variety rightsshall be entered in the Register of Community PlantVariety Rights on production of documentaryevidence of the transfer, or of official documentsconfirming the transfer, or of such extracts fromthose documents as suffice to establish the transfer.The Office shall retain a copy of those pieces ofdocumentary evidence in its files.

The President of the Office shall determine the formin and the conditions under which those pieces ofdocumentary evidence are to be retained in the filesof the Office.

2. The entry of a transfer may be refused only in theevent of failure to comply with the conditions laiddown in paragraph 1 and in Article 23 of the basicRegulation.

3. Paragraphs 1 and 2 shall apply to any transfer ofan entitlement to a Community plant variety rightfor which an application has been entered in theRegister of Applications for Community Plant VarietyRights. The reference to the Register of CommunityPlant Variety Rights shall be understood as areference to the Register of Applications forCommunity Plant Variety Rights.

Article 80Conditions for entries in the Registers

Without prejudice to other provisions of the basicRegulation or of this Regulation, a request for anentry or a deletion of an entry in the Registers maybe made by any interested person. The request shallbe made in writing, accompanied by supportingdocuments.

Article 81Conditions for specific entries in the Registers

1. Where a Community plant variety right appliedfor or granted is concerned by bankruptcy or likeproceedings, an entry to this effect shall be made,free of charge, in the Register for Community PlantVariety Rights at the request of the competentnational authority. This entry shall also be deletedat the request of the competent national authority,free of charge.

2. Paragraph 1 shall apply mutatis mutandis to theinstitution of actions in respect of claims referred toin Articles 98 and 99 of the basic Regulation andthe final decision in, or of any other termination of,any such action.

3. Where varieties are identified respectively asinitial and essentially derived, a request for entry byall the parties to proceedings may be made jointlyor separately. In the event of a request from onlyone party to proceedings, the request shall beaccompanied by sufficient documentary evidence


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of the actions referred to in Article 87(2)(h) of thebasic Regulation to replace the request of the otherparty.

4. Where the entry of a contractual exclusiveexploitation right or of a Community plant varietyright given as security or as the subject of rights inrem is requested, such request shall beaccompanied by sufficient documentary evidence.

Article 82Public inspection of the Registers

1. The Registers shall be open for public inspectionon the premises of the Office.

Access to the Registers and the documents heldtherein shall be granted under the same terms andconditions as apply to the access to documents heldby the Office within the meaning of Article 84.

2. On-the-spot inspection of the Registers shall befree of charge.

The production and delivery of extracts from theRegisters in any form that requires the processingor manipulating of data other than the merereproduction of a document or parts thereof shallbe subject to the payment of a fee.

3. The President of the Office may provide for publicinspection of the Registers on the premises ofnational agencies, or sub-offices designated,pursuant to Article 30(4) of the basic Regulation.

Section 2Keeping of documents, public inspection of

documents and varieties grown

Article 83Keeping of the files

1. Documents, either in the form of originals orcopies relating to proceedings shall be kept in files,a file number being attached to such proceedings,except for those documents relating to the exclusionof, or objection to, members of the Board of Appeal,or to the staff of the Office or the Examination Officeconcerned, which shall be kept separately.

2. The Office shall keep one copy of the file referredto in paragraph 1 (file copy) which shall be

considered the true and complete copy of the file.The Examination Office may keep a copy of thedocuments relating to such proceedings(examination copy), but shall ensure delivery ofthose originals which the Office does not hold.

3. The original documents filed by parties to theproceedings which form the basis of any electronicfiles may be disposed of after a period followingtheir reception by the Office.

4. The President of the Office shall determine thedetails as to the form in which the files are to bekept, the period during which files are to be keptand the period referred to in paragraph 3.

Article 84Access to documents held by the Office

1. The Administrative Council shall adopt thepractical arrangements for access to the documentsheld by the Office, including the Registers.

2. The Administrative Council shall adopt thecategories of documents of the Office that are tobe made directly accessible to the public by way ofpublication, including publication by electronicmeans.

Article 85Inspection of the growing of the varieties

1. A request for inspection of the growing of thevarieties shall be addressed in writing to the Office.With the consent of the Office, access to the testplots shall be arranged by the Examination Office.

2. Without prejudice to Article 88(3) of the basicRegulation, general access to the test plots byvisitors shall not be affected by the provisions ofthis Regulation, provided that all grown varieties arecoded, that appropriate measures against anyremoval of material are taken by the ExaminationOffice entrusted and are approved by the Office,and that all necessary steps are taken to safeguardthe rights of the applicant for, or holder of, aCommunity plant variety right.

3. The President of the Office may lay down thedetails of the procedure for the inspection of thegrowing of the varieties, and may review thesafeguards to be provided under paragraph 2.



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Article 86Confidential information

For the purpose of keeping information confidential,the Office shall make available, free of charge, formsto be used by the applicant for a Community plantvariety right in order to request the withholding ofall data relating to components as referred to inArticle 88(3) of the basic Regulation.

Section 3Publications

Article 87Official Gazette

1. The publication to be issued at least every twomonths pursuant to Article 89 of the basic Regulationshall be called the Official Gazette of the CommunityPlant Variety Office (hereinafter the Official Gazette).

2. The Official Gazette shall also contain theinformation entered in the Registers pursuant toArticle 78(1)(c) and (d), Article 78(2) and Article 79.

3. The President of the Office shall determine themanner in which the Official Gazette is published.

Article 88Publication of applications for exploitation rights to

be granted by the Office and decisions thereon

The date of receipt of an application for anexploitation right to be granted by the Office and ofdelivery of the decision on such application, thenames and addresses of the parties to proceedingsand the form of order sought, or decided upon, shallbe published in the Official Gazette. In the case ofa decision to grant a compulsory licence, thecontents of such decision shall likewise bepublished.

Article 89Publication of appeals and decisions thereon

The date of receipt of a notice of appeal and ofdelivery of the decision on such appeal, the namesand addresses of the parties to the appealproceedings and the form of order sought, ordecided upon, shall be published in the OfficialGazette.


CHAPTER IIAdministrative and legal cooperation

Article 90Communication of information

1. Information to be exchanged in accordance withArticle 90 of the basic Regulation shall becommunicated directly between the authoritiesreferred to in that provision.

2. The communication of information referred to inArticle 91(1) of the basic Regulation by or to theOffice may be effected through the competent plantvariety offices of the Member States, free of charge.

3. Paragraph 2 shall apply mutatis mutandis to thecommunication of information referred to in Article91(1) of the basic Regulation effected to or by theExamination Office. The Office shall receive a copyof such communication.

Article 91Inspection by or via courts or public prosecutors’

offices of the Member States

1. The inspection of files under Article 91(1) of thebasic Regulation shall be of copies of the files issuedby the Office exclusively for that purpose.

2. Courts or public prosecutors’ offices of theMember States may, in the course of proceedingsbefore them, lay the documents transmitted by theOffice open to inspection by third parties. Suchinspection shall be subject to Article 88 of the basicRegulation; the Office shall not charge any fee forit.

3. The Office shall, at the time of transmission ofthe files to the courts or public prosecutor’s officesof the Member States, indicate the restrictions towhich the inspection of documents relating toapplications for, or to grants of Community plantvariety rights is subject pursuant to Article 88 of thebasic Regulation.

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Article 92Procedure for letters rogatory

1. Each Member State shall designate a centralauthority which will undertake to receive lettersrogatory issued by the Office and to transmit themto the court or authority competent to execute them.

2. The Office shall draw up letters rogatory in thelanguage of the competent court or authority or shallattach to such letters a translation into that language.657. 3. Subject to paragraphs 4 and 5, thecompetent court or authority shall apply its own lawas to the procedures to be followed in executingsuch requests. In particular, it shall apply suitablecoercive measures in accordance with its law.

4. The Office shall be informed of the time when,and the place where, the enquiry or other legalmeasures is to take place and shall inform theparties to proceedings, witnesses and expertsconcerned.

5. If so requested by the Office, the competent courtor authority shall permit the attendance of the staffof the Office concerned and allow them to questionany person giving evidence, either directly or throughthe competent court or authority.

6. The execution of letters rogatory shall not giverise to any charge of fees or to costs of any kind.Nevertheless, the Member State in which lettersrogatory are executed shall have the right to requirethe Office to reimburse any fees paid to experts andinterpreters and the costs arising from the procedureunder paragraph 5.

TITLE VIFINAL PROVISIONS

Article 93Regulation (EC) No 1239/95 is repealed.

References to the repealed Regulation shall beconstrued as references to this Regulation and shallbe read in accordance with the correlation table inAnnex III.

Article 94Entry into force

This Regulation shall enter into force on the 20thday following its publication in the Official Journalof the European Union.

This Regulation shall be binding in its entirety anddirectly applicable in all Member States.

Done at Brussels, 17 September 2009.

For the CommissionAndroulla VassiliouMember of the Commission

[1] OJ L 227, 1.9.1994, p. 1.[2] OJ L 121, 1.6.1995, p. 37.[3] See Annex II.[4] OJ L 106, 17.4.2001, p. 1.



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ANNEX I

1. The compensation payable to witnesses andexperts in respect of travel and subsistenceexpenses provided for in Article 62(2) shall becalculated as follows:

1.1. Travel expenses:

For the outward and return journey between thedomicile or seat and the place where oralproceedings are held or where evidence is taken:

(a) the cost of the first-class rail transport includingusual transport supplements shall be paid wherethe total distance by the shortest rail route does notexceed 800 km;

(b) the cost of the tourist-class air transport shall bepaid where the total distance by the shortest railroute exceeds 800 km or the shortest route requiresa sea-crossing.

1.2. Subsistence expenses shall be paid equal tothe daily subsistence allowance of officials as laiddown in Article 13 of Annex VII to the StaffRegulations of Officials of the EuropeanCommunities.

1.3. When a witness or expert is summoned toproceedings at the Office he shall receive with thesummons a travel order containing details of thoseamounts payable under points 1.1 and 1.2, togetherwith a request form covering an advance onexpenses. Before an advance can be paid to awitness or expert his entitlement must be certifiedby the member of the staff of the Office who orderedthe evidence to be taken or, in the case of appealproceedings, the chairman of the responsible Boardof Appeal. The request form must therefore bereturned to the Office for certification.

2. The compensation payable to witnesses inrespect of loss of earnings provided for in Article62(3) shall be calculated as follows:

2.1. If a witness is required to be absent for a totalperiod of 12 hours or less, the compensation forloss of earnings shall be equal to one sixtieth of thebasic monthly salary of an employee of the Officeat the lowest step of grade AD 12.

2.2. If a witness is required to be absent for a totalperiod of more than 12 hours, he shall be entitled topayment of further compensation equal to onesixtieth of the basic salary referred to in point 2.1 inrespect of each further period of 12 hours which iscommenced.

3. The fees payable to experts provided for in Article62(3) shall be determined, case by case, taking intoaccount a proposal by the expert concerned. TheOffice may decide to invite the parties toproceedings to submit their comments on theamount proposed. Fees may be paid to an expertonly if he produces evidence by supportingdocuments that he is not a member of the staff ofan Examination Office.

4. Payments to witnesses or experts for loss ofearnings or fees under points 2 and 3 shall be madefollowing certification of the entitlement of thewitness or expert concerned by the member of thestaff of the Office who ordered the evidence to betaken or, in the case of the appeal proceedings, thechairman of the responsible Boards of Appeal.

5. The remuneration of an agent, adviser oradvocate acting as a representative of a party toproceedings as provided for in Article 76(3) andArticle 76(4)(c) shall be borne by the other party toproceedings on the basis of the following maximumrates:

(a) in the case of appeal proceedings except forthe taking of evidence which involves theexamination of witnesses, opinions by experts orinspection: EUR 500;

(b) in the case of taking of evidence in appealproceedings which involves the examination ofwitnesses, opinions by experts or inspection:EUR 250;

(c) in the case of proceedings for revocation orcancellation of a Community plant variety right:EUR 250.



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HUNGARY

ACT XXXIII of 1995 on the Protection of Inventions by Patents,as last amended by Act XXVII of 2009

PART VPROTECTION OF PLANT VARIETIES

Chapter XIIIPLANT VARIETIES AND PROTECTION

OF PLANT VARIETIES

General provisionsArticle 105

For the purposes of this Act:

(a) plant variety: a plant grouping within a singlebotanical taxon of the lowest known rank, whichgrouping, irrespective of whether the conditions ofprotection are fully met, can be

1. defined by the expression of the characteristicsresulting from a given genotype or combinationof genotypes,

2. distinguished from any other plant grouping bythe expression of at least one of the saidcharacteristics, and

3. considered as a unit with regard to its suitabilityfor being propagated unchanged;

(b) propagating material: entire plants, seeds orother parts of plants suitable for growing the wholeplant or for producing it in any other way.

Object of plant variety protectionArticle 106

(1) Plant variety protection shall be granted forvarieties that are distinct, uniform, stable and new.

(2) Varieties of all botanical genera and species,including hybrids between general or species, mayform the object of plant variety protection.

(3) The variety shall be deemed to be distinct if it isclearly distinguishable, by the expression of thecharacteristics resulting from a given genotype orcombination of genotypes, from any other varietywhose existence is a matter of common knowledgeat the date of priority. The existence of anothervariety shall in particular be deemed to be a matterof common knowledge from the date of filing of theapplication if

(a) it was already object of plant variety protectionor entered in an official register of plant varieties;

(b) an application for the granting of plant varietyprotection or for state registration was filed, providedthat the application leads to the granting of plantvariety protection or to the entering of the said varietyin the official register of plant varieties.

(4) The variety shall be deemed to be uniform if,subject to the variation that may be expected fromthe particular features of its propagation, itsindividuals are sufficiently uniform in the expressionof those characteristics which are included in theexamination of distinctness, as well as any othersused for the variety description.

(5) The variety shall be deemed to be stable if theexpression of the characteristics which are includedin the examination for distinctness as well as anyothers used for the variety description, remainunchanged after repeated propagation or in the caseof a particular cycle of propagation at the end ofeach such cycle.

(6) The variety shall be deemed to be new if thepropagating or harvested material of the variety hasnot been sold or otherwise disposed of to others byor with the consent of the breeder [Article 108(1)]or his successor in title, for purposes of exploitationof the variety

Hungary Act XXXIII of 1995, as last amended by Act XXVII of 2009

* Translation provided by the Hungarian Authorities. The amendments to the Act entered into force on August 1, 2009.

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(a) in the country earlier than one year before thedate of priority,

(b) abroad earlier than four years or, in the case oftrees or of vines, earlier than six years before thedate of priority.

Plant varieties eligible for protectionArticle 107

(1) Plant variety protection shall be granted to a plantvariety if

(a) it satisfies the requirements laid down in Article106;

(b) the plant variety has been given a varietydenomination meeting the requirements ofparagraph (2); and

(c) the application therefore complies with therequirements laid down by this Act.

(2) The plant variety must be given a varietydenomination suitable for identification. A varietydenomination shall, in particular, not be suitable foridentification

(a) if it designates an existing variety of the sameplant species or of a closely related species orcan be confused with it;

(b) if its use would infringe the earlier rights of others;

(c) if it is liable to mislead or to cause confusionconcerning the characteristics, value or identityof the variety or the identity of the breeders;

(d) if it consists solely of figures except where thisis an established practice for designatingvarieties;

(e) if its use would be contrary to public policy ormorality.

Breeder of the plant variety and entitlement toplant variety protection

Article 108

(1) Breeder is the person who bred, or discoveredand developed a variety.

(2) The right to plant variety protection shall belongto the breeder or to his successor in title.

(3) On the basis of this Act, an applicant may obtainplant variety protection if

(a) he is of Hungarian nationality or has his domicileor seat in the country;

(b) he is a national of a State or of a Member Stateof an international organization party to theInternational Convention for the Protection ofNew Varieties of Plants (hereinafter referred toas the “UPOV Convention”), or has his domicileor seat in such a State.

(4) In addition to the cases laid down in paragraph(3), plant variety protection may also be obtainedon the basis of other international treaties or subjectto reciprocity. In the matter of reciprocity, thestandpoint of the President of the Hungarian PatentOffice shall be decisive.

(5) In any other matters pertaining to the moral rightsof the breeder, to the right to plant variety protection,to service and employee plant varieties and to theremuneration of the breeder, the provisions of Article7(2) to (7), Article 8(2) to (4) and Articles 9 to 17shall apply mutatis mutandis.

Rights conferred by plant variety protectionArticle 109

(1) Plant variety protection shall confer on the holderof plant variety protection (hereinafter referred toas “the holder”) the exclusive right to exploit thevariety.

(2) On the basis of the exclusive right of exploitation,the holder shall be entitled to prevent any personnot having his consent from the following acts inrespect of the propagating material of the protectedvariety:

(a) production or reproduction (multiplication),

(b) conditioning for the purpose of propagation,

(c) offering for sale,

(d) selling or other marketing,



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(e) exporting,

(f) importing,

(g) stocking for any of the purposes mentioned in(a) to (f).

(3) The provisions of paragraph (2) shall also applyto harvested material obtained through theunauthorized use of propagating material of theprotected variety or to products made directly fromsuch harvested material through the unauthorizeduse of the harvested material, unless the holder hashad reasonable opportunity to exercise his right inrelation to the said propagating or harvestedmaterial.

(4) The provisions of paragraphs (2) and (3) shallalso apply in relation to varieties

(a) which are essentially derived from the protectedvariety, where the protected variety is not itselfan essentially derived variety;

(b) which are not clearly distinguishable inaccordance with Article 106(3) from theprotected variety;

(c) whose production requires the repeated use ofthe protected variety.

(5) For the purposes of paragraph (4)(a), a varietyshall be deemed to be essentially derived fromanother variety (“the initial variety”) when

(a) it is predominantly derived from the initial variety,or from a variety that is itself predominantlyderived from the initial variety, while retaining theexpression of the essential characteristics thatresult from the genotype or combination ofgenotypes of the initial variety,

(b) it is clearly distinguishable in accordance withArticle 106(3) from the initial variety; and

(c) except for the differences which result from theact of derivation, it conforms to the initial varietyin the expression of the essential characteristicsthat result from the genotype or combination ofgenotypes of the initial variety.

(6) The exclusive right of exploitation shall notextend to

(a) acts done privately or not involved in aneconomic activity;

(b) acts done for experimental purposes relating tothe plant variety;

(c) acts done for the purpose of breeding othervarieties, and, except where the provisions ofparagraph (4) apply, acts referred to inparagraphs (2) and (3) in respect of such othervarieties.

(7)–(8) [repealed]

Claim to remuneration arising fromplant variety protection

Article 109/A

(1) The farmer may exploit the product of the harvestin his own holding without the permission of theholder for the purposes of propagation – other thanthe hybrids and synthetic plant varieties – which heobtained by sowing in his own holding the seed ortuber (hereinafter referred to together as the “seed”)of the plant variety being under plant varietyprotection and belonging to plant species specifiedin paragraph (2). With respect to this exploitation –with the exception defined in paragraph (4) – theholder is entitled to a equitable remuneration.

(2) Paragraph (1) shall be applied to the followingagricultural plant species:

(a) Fodder plants:

1. Chickpea milkvetch – Cicer arietinum L.2. Yellow lupin – Lupinus luteus L.3. Lucerne – Medicago sativa L.4. Field pea – Pisum sativum L. (partim)5. Bertian clover–Trifolium alexandrinum L.6. Persian clover – Trifolium resupinatum L.7. Field bean – Vicia faba8. Common vetch – Vicia sativa L.

(b) Cereals:

1. Oats – Avena sativa2. Barley – Hordeum vulgare L.3. Rice – Oryza sativa L.4. Canary grass – Phalaris canariensis L.


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5. Rye – Secale cereale L.6. Triticale – X Triticosecale Wittm.7. Wheat – Triticium aestivum L. emend. Fiori etPaol.8. Durum wheat – Triticum durum Desf.9. Spelt wheat – Triticum spelta L.

(c) Potatoes:

1. Potatoes – Solanum tuberosum

(d) Oil and fibre plants:

1. Swede rape – Brassica napus L. (partim)2. Turnip rape – Brassica rapa L. (partim)3. Linseed with the exclusion of flax. – Linumusitatissimum

(3) For the purposes of this Act:

(a) own holding: any holding or part of an estatewhich is actually used by the farmer to growplants, irrespectively to the fact whether it is hisown property or uses it on other legal grounds;

(b) farmer: any natural person, legal person ororganization without legal personality who orwhich is engaged in growing arable crops.

(4) The obligation to pay a remuneration defined inparagraph (1) shall not be applied to any farmerwho is engaged in growing arable crops in less than20 hectares, or, in the case of potatoes, in less than1 hectare.

(5) The rights specified in this article and in Article109/B may be exercised by the holders individuallyor through their organization. The organization ofthe holders may proceed exclusively on behalf ofthose members or other holders who have given awritten authorization to the organization to do so. Ifthe holder has given a written authorization to anorganization he may not proceed individually toclaim remuneration. When enforcing the claimsunder Article 109/C and 114/C, the rules of ChapterV of the Code of Civil Procedure shall be appliedfor the legal representation performed by theorganization of the holders.

(6) The obligation to pay a remuneration defined inparagraph (1) is effective from the date on which

the farmer actually exploits the product of theharvest for the purposes of propagation in the fields.

(7) The extent and payment of the remuneration isgoverned by the agreement between the holder andthe farmer. The holders may conclude theagreement – in respect of the members of thefarmers’ organizations – with the farmers’organizations as well.

(8) In the absence of the agreement underparagraph (7)

(a) the basis of the remuneration is the seed quantityrecommended by the holder for the propagationof the respective plant variety multiplied by thesize of the field indicated by the farmer underArticle 109/B (3) (c); the extent of theremuneration is 50 % of the level of the licencefee included in the price of the sealed seed withthe lowest propagation degree of the respectiveplant variety, applied to the quantity determinedabove;

(b) the term of payment reasonable under thecircumstances of the case and the method ofpayment is determined by the written invitationof the holder addressed to the farmer, directlyor through the organization of the farmersrepresenting the addressee; the farmer is notifiedof the extent of the remuneration defined in sub-paragraph (a) by the holder in this invitation.

(9) In respect of each plant variety, therecommended sowing quantity under sub-paragraph (a) of paragraph (8) and the extent ofthe licence fee applied to a quantity unit shall bepublished upon the initiative of the holder by theministry led by the minister responsible foragricultural policy in its official gazette annually,before their respective sowing periods. With theexception of the case specified in paragraph (7), ifthis publication has not occurred the remunerationmay not be claimed through public authorities.

Article 109/B

(1) For the purposes of claiming the remunerationunder Article 109/A (1), if such data are included inits records, the authority for plant growing– uponrequest, against the payment of the costs, in caseof proving the entitlement – provides the following



43

data to the holder of the plant variety being underprotection and belonging to plant species specifiedin Article 109/A (2):

(a) the name, propagation degree and the quantitypropagated of the plant varieties being underprotection in favour of the holder, belonging tothe plant species specified in Article 109/A (2),controlled in the holding of the farmers – notbelonging to the circle of farmers specified inArticle 109/A (4) – being engaged in producingseeds and, as well as the name of the respectivefarmers and the address of their holding;

(b) the name of the plant varieties processed bythe seed processors, belonging to the plantspecies specified in Article 109/A (2) and beingunder protection in favour of the holder, as wellas the quantity of the processed raw seed.

(2) For the purposes of claiming the remunerationunder Article 109/A (1), if such data are included inits records, the agency responsible for agricultureand rural development – upon request, against thepayment of the costs, in case of proving theentitlement – provides the following data to theholder of the plant variety being under protectionand belonging to plant species specified in Article109/A (2):

(a) the name of the farmers notifying the growing ofplant species specified in Article 109/A (2), notbelonging to the circle of farmers specified inArticle 109/A (4), as well as the address of theirholding;

(b) the overall size of the field used by the farmerdefined in sub-paragraph (a), indicating the sizeof the field exploited for each plant variety.

(3) For the purposes of claiming the remunerationunder Article 109/A (1), any farmer who – based onthe data under paragraph (1) or other data – maybe deemed to have performed an exploitation underArticle 109/A (1) is obliged to deliver the followingdata to the holder – upon his request – within thereasonable time limit defined by the holder:

(a) the name of plant varieties belonging to the plantspecies specified in Article 109/A (2), being underprotection in favour of the holder and whose

harvested product he exploited in his own holdingfor the purposes of propagation;

(b) in case of plant varieties under sub-paragraph(a) the quantity, the seal number of the seedbearing a seal, purchased and exploited in thegiven economic year and indication of the sizeof the field where it has been sowed;

(c) indication of the size of the field where theharvested product of the plant varieties undersub-paragraph (a) has been sowed;

(d) the name and address of the person(s)processing the product of the harvest of plantvarieties under sub-paragraph (a) for thepurposes of exploitation under Article 109/A (1).

(4) For the purposes of claiming the remunerationunder Article 109/A (1), the seed processor – uponthe written request of the holder – is obliged to giveinformation about the quantity processed for thepurposes of sowing of the harvested product of theplant variety belonging to some of the plant speciesspecified in Article 109/A (2), being under protectionin favour of the holder, as well as about the nameand address (place of business) of the persons forwhom he has fulfilled this activity of processing.

(5) Providing of data specified in paragraphs (3) and(4) may be required in respect of the given economicyear and of that year or those years of the precedingthree years in respect of which the farmer had notprovided the data to the holder previously. Anyfarmer obliged to provide data under paragraph (3)shall prove the data under sub-paragraph (b) ofparagraph (3) related to the quantity of thepurchased and exploited seed bearing a seal bycertified documents as well.

(6) In his request under paragraphs (3) and (4) theholder is obliged to give his name and address andthe names of plant varieties being under protectionin his favour. In his request under paragraph (3) heshall explain upon what data he supposed that thefarmer had made exploitation under Article 109/A(1). Upon request of the farmer or the processor,the entitlement shall be proved.


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(7) The holder may submit the request underparagraphs (3) and (4) to the farmers or to the seedprocessors – in case of an agreement to this end –through their organizations as well.

Article 109/C

(1) In case of the entire or partial failure – in spite ofa repeated invitation – to provide data specified inArticle 109/B (3) and (4), or in case of providingfalse data, the holder may claim the provision orcorrection of data specified in Article 109/B (3)and (4).

(2) If the authenticity of the data provided is disputed,the burden of proof shall be on the farmer.

Exhaustion of the exclusive right of exploitationconferred by plant variety protection

Article 110

(1) The exclusive right of exploitation conferred byplant variety protection shall not extend to actsconcerning any material of the protected variety, orof a variety covered by the provisions of Article 109,paragraph (4), which has been sold or otherwisemarketed by the holder or with his consent in theterritory of the European Economic Area, or anymaterial derived from the said material.

(2) The exclusive right of exploitation shall extendto acts referred to in paragraph (1) if such actsinvolve further propagation of the variety in question,or involve an export of such material of the varietywhich enables the propagation of the variety, into acountry which does not protect varieties of the plantgenus or species to which the variety referred to inparagraph (1) belongs, except where the exportedmaterial is for final consumption purposes.

(3) For the purposes of paragraphs (1) and (2),material means propagating material, harvestedmaterial and any product made directly from theharvested material.

Term of plant variety protectionArticle 111

Definitive plant variety protection shall have a termof 25 years or, in the case of vines and trees, aterm of 30 years, from the date of the grant of theprotection.

Maintenance of plant variety protectionArticle 111/A

(1) Maintenance fees, to be determined by specificlegislation, shall be paid for each year of the durationof plant variety protection.

(2) In respect of the maintenance and themaintenance fee of plant variety protection, theprovisions related to the maintenance and themaintenance fee of patent protection shall applymutatis mutandis.

Remuneration of the breeder of the plant varietyArticle 112

The breeder of the plant variety shall be entitled toa remuneration (remuneration for the breeder) underthe provisions relating to remuneration for inventions(Article 13).

Maintenance of the plant variety,use of variety denominations

Article 113

(1) The holder shall be required to maintain the plantvariety during the period of plant variety protection.

(2) When a variety is offered for sale or is marketed,it shall be permitted to associate a trademark, ageographical indication or other similar indicationwith the registered variety denomination. If such anindication is so associated, the denomination mustnevertheless be easily recognizable.

(3) When a variety is offered for sale or marketed,the registered variety denomination must be used,even after the lapse of plant variety protection,except where such use would infringe the earlierrights of others.

Other rights and obligations deriving from plantvarieties and plant variety protection

Article 114

(1) Rights deriving from plant varieties and plantvariety protection may not be transferred to anyperson who cannot be granted plant varietyprotection under the provisions of Article 108(3) and



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(4). In any other matters pertaining to the successionin title, the provisions of Article 25 shall apply mutatismutandis.

(2) If, after the grant of plant variety protection, theholder of plant variety protection obtained aCommunity plant variety right [Article 115(b)] for thesame variety, he will be exempt from paying theannual fees until the lapse of the Community plantvariety right. If the Community plant variety rightlapses before the expiry of the term of plant varietyprotection, the holder may request re-establishmentof the plant variety protection in accordance withthe provisions of Article 115/B.

(3) With respect to the establishment of plant varietyprotection, the limitations of protection, the joint rightto plant variety protection and joint plant varietyprotection, the provisions of Articles 18, 21 and 26shall apply mutatis mutandis.

Exploitation contractsArticle 114/A

With respect to contracts of exploitation of plantvarieties (plant variety license contracts), theprovisions of Articles 27 to 30 shall apply mutatismutandis.

Compulsory licensesArticle 114/B

(1) If a patented invention cannot be exploitedwithout infringing a plant variety protection(hereinafter referred to as the “dominant plant varietyprotection”), a compulsory license shall be granted,on request and to the extent necessary for theexploitation of the variety according to the dominantplant variety protection, to the holder of thedependent patent, provided that the inventionclaimed in the dependent patent involves significanttechnical progress of considerable economicinterest compared with the variety claimed in thedominant plant variety protection.

(2) In any other matters pertaining to the compulsorylicenses granted for the exploitation of the protectedplant varieties, the provisions of Articles 31, 32(2)and 33 shall apply mutatis mutandis.

Infringement of plant varieties and ofplant variety protection

Article 114/C

(1) An infringement of the plant variety protection iscommitted by any person who

(a) illegitimately exploits the plant variety being underprotection;

(b) does not fulfil the obligation to pay remunerationprescribed in Article 109/A (1).

(2) In respect of infringement of plant variety andplant variety protection, the provisions of Articles34 to 36 shall apply mutatis mutandis.

Revocation of plant variety protectionArticle 114/D

(1) Plant variety protection shall be revoked ex tuncif

(a) the subject matter of the plant variety protectiondoes not satisfy the requirements laid down inArticle 106(3) and (6);

(b) the grant of plant variety protection has beenessentially based upon information anddocuments furnished by the breeder or hissuccessor in title and the conditions laid downin Article 106(4) and (5) were not complied withat the time of the grant of plant variety protection;

(c) the plant variety protection has been granted toa person who is not entitled to it under the Act,unless it is transferred to the person who is soentitled.

(2) Should the request for revocation be rejectedby a final decision, a new procedure for therevocation of the same plant variety protection onthe same grounds may not be instituted by anyperson.

Cancellation of plant variety protection and ofvariety denomination

Article 114/E

(1) Plant variety protection shall be cancelled – withretroactive effect to the date of institutingproceedings for cancellation or to the date at which


46


the conditions for cancellation have already existed,whichever is earlier – if, after the grant of protection,the conditions laid down in Article 106(4) and (5)are no longer fulfilled.

(2) In addition to the cases referred to in paragraph(1), plant variety protection shall be cancelled – withretroactive effect to the date of institutingproceedings for cancellation – if the holder, afterbeing requested to do so and within a prescribedperiod,

(a) does not provide the authority with thedocuments or other means necessary forverifying the maintenance of the variety;

(b) does not request the registration of anothervariety denomination complying with theconditions laid down in Article 107(2), where theprevious denomination is cancelled after thegrant of plant variety protection.

(3) The registered variety denomination shall becancelled if the holder, after being requested to doso and within a prescribed period, does not verifythat it fulfils the conditions laid down in Article 107(2).If after the cancellation of the variety denominationthe holder files a request which contains a varietydenomination complying with the conditions laiddown in Article 107(2), the new variety denominationshall be registered.

(4) Should the request for cancellation of the plantvariety protection or of the variety denomination berejected by a final decision, a new procedure forcancellation of the same plant variety protection orof the same variety denomination on the samegrounds may not be instituted by any person.

Other provisions concerning lapse ofplant variety protection

Article 114/F

In any other matters pertaining to the lapse of plantvariety protection, the provisions of Articles 38 to41 and 43 shall apply mutatis mutandis, except thatdefinitive plant variety protection shall also lapse, inaddition to the cases laid down in Article 39, if theplant variety protection is cancelled, with retroactiveeffect to the date of instituting proceedings forcancellation or at the date at which the conditionsfor cancellation have already existed.

Chapter XIV

PROCEDURES BEFORE THE HUNGARIANPATENT OFFICE IN MATTERS OF PLANT

VARIETY PROTECTION

General provisions governing proceduresconcerning plant variety protection

Article 114/G

(1) The Hungarian Patent Office shall havecompetence in the following matters of plant varietyprotection:

(a) grant of plant variety protection,

(b) decision on the lapse and the restoration of plantvariety protection,

(c) revocation of plant variety protection,

(d) cancellation of plant variety protection and ofvariety denomination,

(e) keeping the registers of applications for plantvariety protection and of protected plant varieties,including any particulars pertaining to theirmaintenance,

(f) official information on matters of plant varietyprotection.

(2) Experimental testing relating to the conditionslaid down in Article 106(3) to (5) shall be carried outin the territory of the country by an authority(examination authority) designated by specificlegislation.

(3) At the hearing, the Hungarian Patent Office shallproceed and shall take its rulings in procedures forrevocation and for cancellation in the form of a boardconsisting of three members. The board shall takeits decisions on a majority.

(4) With respect to restitutio in integrum, theprovisions of Article 49 shall apply, with the provisothat restitutio in integrum shall be excluded:

(a) in the event of failing to comply with the timelimit prescribed for filing the declaration of priority



47

[Article 114/L(2)], or with the time limit of 12months fixed for claiming priority,

(b) in the event of failing to comply with the timelimits prescribed for filing a request for restitutioin integrum and a request for continuation of theprocedure [Article 48(3) and Articles 49(1)and (2)];

(c) in the event of failing to comply with the timelimit of three months prescribed for filing arequest for the re-establishment of plant varietyprotection [Article 115/B(1)].

(5) The language of procedures concerning plantvariety protection shall be Hungarian, the declarationof novelty of the variety and the provisionaldescription of the variety shall be made in Hungarianand the common name of the species shall be givenin Hungarian. In any other matters pertaining to theuse of languages, the provisions of Article 52(2) shallapply mutatis mutandis.

(6) Prior to the publication of the application for plantvariety protection, the examination authority mayalso inspect the files. After publication until the grantof protection, only the applicant, his representative,the expert, the body called upon to give an expertopinion and the examination authority may inspectthe provisional description of the variety. In any othermatters pertaining to the access to files, theprovisions of Article 53 shall apply mutatis mutandis.

(7) In the absence of a provision of this Act to thecontrary, the Hungarian Patent Office may withdrawor modify its decisions – terminating the procedure– taken in the following matters only if a request forreview is made and only until such request istransmitted to the court:

(a) grant of plant variety protection;

(b) decision on the lapse and the restoration of plantvariety protection,

(c) revocation of plant variety protection;

(d) cancellation of plant variety protection;

(e) cancellation of variety denomination;

(f) re-establishment of plant variety protection.

(8) In the absence of a provision of this Act to thecontrary, the Hungarian Patent Office may withdrawor modify its decision – terminating the procedure –taken in the matters referred to in paragraph (7)(c)to (e) on the basis of a request for review only if itestablishes that its decision infringes legislation orif the parties request unanimously the modificationor withdrawal of the decision.

(9) In issues not regulated in paragraphs (1) to (8),the provisions of Chapter VII shall apply mutatismutandis to general provisions governingprocedures concerning plant variety protection,except that plant variety protection matters shall notbe managed electronically.

Registration relating to plant variety protection,information to the public

Article 114/H

(1) The Hungarian Patent Office shall keep aRegister of Applications for Plant Variety Protectionand a Register of Protected Plant Varieties whichshall contain all facts and circumstances concerningplant variety protection. With respect to the Registerof Applications for Plant Variety Protection and theRegister of Protected Plant Varieties as well asentries in both Registers, the provisions of Article54(2) to (5) and Article 55 shall apply mutatismutandis, except that any reference to the title ofthe invention in this Act shall mean the varietydenomination, the common name and the Latinname of the species.

(2) With respect to information to the public relatingto applications for plant variety protection and plantvariety protection, the provisions of Article 56 shallapply mutatis mutandis, except that any referenceto the title of the invention in this Act shall mean thevariety denomination, the common name and theLatin name of the species.

(3) In compliance with the relevant provisions of theUPOV Convention, the Hungarian Patent Officeshall inform the States and intergovernmentalorganisations party to the UPOV Convention of thesubmission, registration and cancellation of varietydenominations and of any new variety denominationregistered after cancellation.


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Procedure for the grant of plant variety protection;Filing of applications for plant variety protection

and its requirementsArticle 114/I

(1) The procedure for the grant of plant varietyprotection shall begin with the filing of an applicationwith the Hungarian Patent Office.

(2) The application for plant variety protection shallcontain a request for the grant of plant varietyprotection, a declaration of novelty of the variety,the definitive description containing the result of theexperimental testing relating the conditions laiddown in Article 106(3) to (5), the varietydenomination, the common name and Latin nameof the species and, if necessary, other relevantdocuments.

(3) Detailed formal requirements to be complied withby applications for plant variety protection shall belaid down by specific legislation.

(4) An application for plant variety protection shallbe subject to the payment of a filing fee determinedby specific legislation; the fee shall be payable withintwo months after the date of filing.

(5) Where the documents making up the applicationhave been prepared in a foreign language, theprovisional description in Hungarian language andthe Hungarian name of the species shall be filedwithin four months after the date of filing.

(6) Until publication, the applicant may withdraw theapplication for plant variety protection in compliancewith the provisions of Article 41. The HungarianPatent Office shall take note of the withdrawal byan order.

Date of filingArticle 114/J

(1) The filing date of an application for plant varietyprotection shall be the date on which the applicationfiled with the Hungarian Patent Office contains atleast:

(a) an indication that plant variety protection issought,

(b) indications identifying the applicant or permittingcontacts with the applicant;

(c) a provisional description of the variety, eventhough it does not comply with otherrequirements,

(d) the provisional variety denomination,

(e) the common name and the Latin name of thespecies.

(2) In place of filing the provisional description ofthe variety, reference to a priority document shallsuffice to accord a date of filing for the application.

Unity; Division of the application forplant variety protection

Article 114/K

(1) An application for plant variety protection mayseek protection for one plant variety only.

(2) If the applicant has claimed protection for morethan one plant variety in one application, he maydivide the application, retaining the date of filing andany earlier priority, if any, until such time as theexperimental testing has begun. In any other matterspertaining to division, the provisions of Article 73(2)and (3) shall apply.

PriorityArticle 114/L

(1) The date establishing priority shall be:

(a) generally, the date of filing of the application forplant variety protection,

(b) in the cases defined by the UPOV Convention,the date of filing of the foreign application.

(2) Priority under paragraph (1)(b) shall be claimedon the date of filing of the application for plant varietyprotection. The document establishing priority shallbe filed within four months after the date of filing ofthe application.

(3) On the basis of other international treaties orsubject to reciprocity and on conditions laid downin the UPOV Convention and in paragraph (2),priority may also be claimed if the application has



49

been filed in a State or with an intergovernmentalorganization not party to the UPOV Convention. Inthe matter of reciprocity, the standpoint of thePresident of the Hungarian Patent Office shall bedecisive.

Examination on filingArticle 114/M

(1) Following the filing of an application for plantvariety protection, the Hungarian Patent Office shallexamine whether

(a) the application satisfies the requirements foraccording a date of filing (Article 114/J),

(b) the filing fee has been paid [Article 114/I(4)],

(c) the provisional description of the variety inHungarian language and the Hungarian nameof the species have been filed [Article 114/I(5)].

(2) In the course of the examination following thefiling of the application, the Hungarian Patent Officeshall proceed by applying the provisions of Article66(1) to (3) and (10) mutatis mutandis.

(3) If the filing fee has not been paid or theprovisional description of the variety in Hungarianlanguage or the Hungarian name of the species hasnot been filed, the Hungarian Patent Office shallinvite the applicant to rectify the irregularities withinthe period specified by this Act [Article 114/I(4) and(5)]. Failing to comply with the said invitation, theapplication shall be considered withdrawn.

Communication of certain dataArticle 114/N

Concerning the application for plant varietyprotection, the Hungarian Patent Office shall publishthe official information under Article 67.

Examination as to formal requirementsArticle 114/O

If an application for plant variety protection satisfiesthe requirements examined under Article 114/M(1),the Hungarian Patent Office shall examine whetherthe formal requirements of Article 114/I(2) and (3)have been satisfied. In the course of this, it shall

proceed by applying the provisions of Article 68(2)to (4) mutatis mutandis.

Publication, observationsArticle 114/P

(1) With respect to the publication of the applicationfor plant variety protection, the provisions of Article70 shall apply mutatis mutandis, except that at therequest of the applicant the application may bepublished at an earlier date if it satisfies therequirements examined under Article 114/M(1).

(2) After publication any person may file anobservation with the Hungarian Patent Office in theprocedure for the grant of plant variety protection tothe effect that the plant variety or the applicationtherefor does not comply with any of therequirements for protection laid down in this Act. Inany other matters pertaining to observations, theprovisions of Article 71(2) and (3) shall apply mutatismutandis.

Substantive examination of applicationsfor plant variety protection

Article 114/R

(1) The substantive examination of the applicationcarried out by the Hungarian Patent Office shallascertain whether(a) the plant variety meets the requirements of Article

106(3) to (6),

(b) the plant variety has been given a varietydenomination meeting the requirements ofArticle 107(2),

(c) the application for plant variety protectioncomplies with the requirements laid down in thisAct.

(2) The conditions laid down in Article 106(3) to (5)shall be assessed in the course of the procedurefor state registration or on the basis of the results ofexperimental testing carried out for the purposes ofthe procedure concerning plant variety protection.

(3) The results of experimental testing carried outby a competent foreign authority may be taken intoconsideration with the consent of such authority. Ifthe applicant files the result of an experimentaltesting carried out by a foreign authority, the


50


Hungarian Patent Office shall forward the result ofthe testing together with the consent of the foreignauthority to the examination authority [Article 114/G(2)]. When using the results of experimentaltesting, the examination authority shall proceed onthe basis of provisions laid down by specificlegislation.

(4) The costs of experimental testing shall be borneby the applicant.

(5) The applicant may file the results of experimentaltesting with the Hungarian Patent Office within fouryears from the date of priority or within three monthsfrom the notification of the results of experimentaltesting, whichever expires later.

(6) If the results of experimental testing are not filedwithin three months preceding the expiration of fouryears from the date of priority, the Hungarian PatentOffice shall invite the applicant to rectify theirregularity within the time limit fixed in paragraph(5) or to verify that the results of experimental testinghave not yet been communicated. Failure to complywith the said invitation, the applicant shall beconsidered to have surrendered the provisional plantvariety protection.

(7) If the application for plant variety protection doesnot meet the requirements examined underparagraph (1), the applicant shall be invited,according to the nature of the objection, to rectifythe irregularities, to submit comments or to dividethe application. In the course of this, the HungarianPatent Office shall proceed by applying theprovisions of Article 76(2) to (4) mutatis mutandis.

Information to the examination authorityArticle 114/S

(1) Simultaneously with the communication ofcertain data of the application for plant varietyprotection (Article 114/N), the Hungarian PatentOffice shall transmit copies of the documentsindicated in Article 114/J(1) to the examinationauthority. Copies of documents relating to mattersof plant variety protection and necessary forperforming the tasks of the examination authorityshall also be sent subsequently.

(2) If the procedure for the grant of plant varietyprotection ends without the grant of protection, theHungarian Patent Office shall inform theexamination authority thereof by sending it the copyof the decision terminating the procedure.

Grant of plant variety protectionArticle 114/T

(1) If the plant variety and the application thereformeet all the requirements of the examination [Article114/R(1)], the Hungarian Patent Office shall grantplant variety protection for the subject matter of theapplication.

(2) The grant of plant variety protection together withthe variety denomination shall be recorded in theRegister of Protected Plant Varieties [Article 114/H(1)], and official information shall be publishedthereon in the official journal of the Hungarian PatentOffice (Article 56). The date of the grant of plantvariety protection shall be the date of the ruling onthe grant. The Hungarian Patent Office shall informthe examination authority of the grant of plant varietyprotection and of the registration of the varietydenomination by sending it the ruling on the grant.

(3) After the grant of plant variety protection, theHungarian Patent Office shall issue a certificate towhich the definitive description of the variety shallbe annexed.

Other procedures concerningplant variety protection

Article 114/U

(1) Any person may institute proceedings forrevocation or cancellation of plant variety protectionor for cancellation of variety denomination againstthe holder of plant variety protection. Under Article114/D(1)(c), only that person may requestrevocation of plant variety protection who is entitledto it.

(2) In any other matters pertaining to otherprocedures concerning plant variety protection, theprovisions of Articles 79 to 81 shall apply mutatismutandis.



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Chapter XIV/A

COURT PROCEEDINGS IN CASES OF PLANTVARIETY PROTECTION

Provisions concerning court proceedings in plantvariety protection

Article 114/V

With respect to court proceedings concerning plantvariety protection, the provisions of Chapters XI andXII shall apply mutatis mutandis, with the provisothat decisions referred to in Article 53/A(3) shall beregarded as decisions referred to in Article 114/G(7).

Chapter XIV/B

PROVISIONS CONCERNING THE SYSTEM OFCOMMUNITY PLANT VARIETY RIGHTS

General provisionsArticle 115

For the purposes of this Act:

(a) Community plant variety regulation: CouncilRegulation (EC) No. 2100/94 on Communityplant variety rights;

(b) Community plant variety rights: plant varietyrights referred to in Article 1 of the Communityplant variety regulation;

(c) application for a Community plant variety right:an application for the grant of a Community plantvariety right filed on the basis of the Communityplant variety regulation.

Forwarding applications forCommunity plant variety rights

Article 115/A

(1) For the forwarding, according to Article 49(2) ofthe Community plant variety regulation, ofapplications for Community Plant Variety Rights filedwith the Hungarian Patent Office, a forwarding feeprescribed by specific legislation shall be payableon filing the application.

(2) If the fee for forwarding the application for a plantvariety right has not been paid, the Hungarian Patent

Office shall invite the applicant to rectify theirregularity. The Hungarian Patent Office shallforward the application for a plant variety right afterthe payment of the fee.

Re-establishment of plant variety protectionArticle 115/B

(1) In the case of the lapse of a Community plantvariety right, the holder of the plant variety protection– having regard to Article 92(2) of the Communityplant variety regulation – may request re-establishment of the plant variety protection fromthe Hungarian Patent Office within three monthsfrom the lapse of the Community plant variety right.

(2) The holder shall be required to prove in therequest for the re-establishment of plant varietyprotection the fact and date of the lapse of theCommunity plant variety right, and to pay, within twomonths from the filing of the request, theproportionate part of the annual fee applicable inthe year of the lapse of the Community plant varietyright together with the annual fee applicable in thesubsequent year.

(3) If the request for the re-establishment of plantvariety protection does not comply with therequirements laid down in this Act, the holder shallbe invited to rectify the irregularities; if the annualfee prescribed in paragraph (2) has not been paid,he shall be invited to make payment within the timelimit fixed in paragraph (2). Failing to comply withthe said invitation shall result in the request beingconsidered withdrawn.

(4) If the Hungarian Patent Office allows the requestfor the re-establishment of plant variety protection,the plant variety protection shall be re-establishedon the day following the lapse of the Communityplant variety right.

(5) If the holder does not request re-establishmentof the plant variety protection within three monthsfrom the lapse of the Community plant variety right,the plant variety protection shall lapse, by virtue ofthis Act, on the day following the lapse of theCommunity plant variety right.


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Sanctions in the case of the infringement ofCommunity plant variety rights

Article 115/C

In the case of an infringement of a Community plantvariety right – in compliance with the provisions ofPart VI of the Community plant variety regulation –the same sanctions and remedies shall apply as inthe case of an infringement of plant variety rightgranted by the Hungarian Patent Office on the basisof this Act.


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KYRGYZSTAN

LAW OF THE KYRGYZ REPUBLIC ON THE LEGAL PROTECTION OFSELECTION ACHIEVEMENTS*

(Laws of the Kyrgyz Republic, February 27, 2003, No. 46,March 31, 2005, No. 58, August 8,. 2006, No. 155)

* Translation provided by the Office of the Union.

Section I. General provisions

Section II. Conditions for protecting a selectionachievement and the procedure forapplying for the grant of a patent

Section III. Examination of a selectionachievement

Section IV. The registration of a selectionachievement and the grant of a patent

Section V. Authorship rights in a selectionachievement

Section VI. Rights and obligations of thepatent holder

Section VII. Protecting the rights of thepatent holder

Section VIII. Recognizing a patent as void,early termination of the validity of apatent, renewal of the validityof a patent

Section IX. Licences

Section X. International cooperation

Section XI. Final provisions

This Law regulates the proprietary and personalnon-proprietary relationships arising in connectionwith the breeding or identification (hereinafter“creation”), use and legal protection of selectionachievements for which patents are granted by theKyrgyz Republic.

The effects of this Law shall extend to all botanicaland zoological genera and species contained in thelist approved by the Government of the KyrgyzRepublic.(KR Law of March 31, 2005, No. 58)

Section I General provisions

Article 1Basic concepts

The following concepts are used for the purposesof this Law:

Author of a selection achievement (the breeder) –the person whose creative endeavour resulted inthe selection achievement;

breed – a group of animals which, irrespective ofwhether it can be protected, possesses geneticallydetermined biological and morphologicalcharacteristics and features, some of which arespecific to the group and distinguish it from othergroups of animals. The breed may consist of maleor female individuals or breeding material. Thecategories of the breed which are protected are:the type, the stud line, the cross line and the family;

breed animal – an animal intended for thereproduction of a breed;

breeding material – a breed animal and its gametesor zygotes (embryos);

selection achievement – a plant variety or breed ofanimal;

protected selection achievement – a plant varietyor animal breed which is entered in the NationalRegister of Protected Selection Achievements;

Kyrgyzstan Law on the Legal Protection of Selection Achievements

54


variety – a group of plants within the same botanicaltaxon which is the lowest of the known classes andwhich, regardless of whether it fully meets theconditions for protection, can be defined by thecharacteristics of its genotype or combination ofgenotypes, is distinguished by at least one of itscharacteristics from other groups of plants in thesame botanical taxon, and can be regarded asuniquely suitable for obtaining unaltered wholeplants of the variety.

The protected categories of a variety are: the clone,the line, the first generation hybrid and thepopulation;

seeds – the generative and vegetative organs ofplants which are used to reproduce the variety;

plant material – wholeplants or parts of plants,seeds, seedlings, bulbs or fruit of different cultureswhich are intended for propagation or sale forpurposes other than the reproduction of the variety;

a counterfeit selection achievement – a selectionachievement, the propagation and/or commercialuse of which involves an infringement of theexclusive rights of the patent holder.

(KR Law of March 31, 2005 No. 58)

Article 2Legal protection of a selection achievement

The right to a selection achievement shall beprotected by this Law and confirmed by a patent forthe selection achievement.

The patent shall certify the authorship of the breeder,the priority of the selection achievement and theexclusive right of the patent holder to use theselection achievement.

The scope of the legal protection which the patentconfers on the selection achievement shall bedetermined by the combination of essentialcharacteristics set down in the description of theselection achievement.

Article 3State regulation concerning the legal protection

of selection achievements

Under this Law the authorized State authority of theKyrgyz Republic for intellectual property shallimplement State policy on the legal protection ofselection achievements, consider patentapplications for selection achievements, publishthem, make a preliminary examination of selectionachievements, decide whether to grant or refuse apatent according to the findings of the examinationas to novelty, distinctiveness, uniformity and stability,register selection achievements on behalf of theState in the National Register of Protected SelectionAchievements of the Kyrgyz Republic (hereinafter– the National Register of Protected SelectionAchievements), publish official notices on theprotection of selection achievements, grant patentsfor selection achievements, monitor theirmaintenance in force and perform other functionsin accordance with the Regulations on theauthorized State Agency for Intellectual Property,which have been approved by the Government ofthe Kyrgyz Republic.

See: Regulations on the State Agency for Scienceand Intellectual Property attached to theGovernment of the Kyrgyz Republic (Kyrgyzpatent)(approved by a Decision of the Government of theKR of March 15, 2001, No. 100).

For the purpose of dealing with disputes arising inconnection with selection achievements, an AppealsBoard is established in the authorized State Agencyfor Intellectual Property. The Regulations on theAppeals Board are adopted by the authorized StateAuthority for intellectual property.

See: Regulations on the Appeals Board in the StateAgency for Intellectual Property of the Governmentof the Kyrgyz Republic (approved by a Decision ofthe Board of the State AgencC• for IntellectualProperty of the Government of the Kyrgyz Republic(Kyrgyzpatent) of December 30, 1998, No. 7).

The central State authority for the management ofagricultural and water resources shall beresponsible for drawing up the List of botanical andzoological genera and species (hereinafter the List),which is approved by the Government of theKyrgyz Republic.



55

See: Decision of the Government of the KR of 28August 1998, No. 572 on the Approval of Lists ofBotanical and Zoological Genera and Species ofPlants and Animals”

The central State authority for the management ofagricultural and water resources shall makeproposals to the Government of the Kyrgyz Republicon supplementing the List with new genera andspecies and on altering the names of genera andspecies entered in the List. The State Commissionon the Testing of Agricultural Plant Varieties,attached to the central State authority for themanagement of agricultural and water resources(hereinafter Goskomissiya) and the StateInspectorate for Animal Breeding and PastureControl attached to the central State authority forthe management of agricultural and water resources(hereinafter Gospleminspektsiya) are Stateagencies performing the following functions: testingselection achievements on behalf of the State, byagreement with the authorized State Agency forIntellectual Property, for distinctiveness, uniformityand stability; managing the National Register ofRegionally Distributed Varieties within the KyrgyzRepublic and the State book of animal breeds ofthe Kyrgyz Republic; making decisions to permit theuse of a selection achievement in production; andother functions according to the relevant regulationsapproved by the central State authority on themanagement of agricultural and water resources.(Laws of the KR of February 27, 2003, No. 46,March 31, 2005, No. 58).

Section IIConditions for protecting a selection achievement

and the procedure for applying forthe grant of a patent

Article 4Conditions for the protection of a

selection achievement

A patent shall be granted for a selectionachievement which meets the criteria for protectionand which relates to botanical and zoological generaand species.

The criteria for protecting a selection achievementshall be:

(1) novelty. The selection achievement shall beconsidered to be new if on the date when theapplication for the patent is filed its seeds orbreeding material have not been sold or transferredin any other way to other persons for their use bythe breeder or by his legal successor, or with theirconsent:

on the territory of the Kyrgyz Republic – earlier thanone year before that date;

on the territory of another State – earlier than fouryears or, for vines, ornamental timbers or cultivatedfruits, earlier than six years before the date inquestion.

The novelty of the selection achievement shall notbe affected if the disposal of any material of thevariety or breed by other persons took place beforethe expiry of the time limits specified in thisparagraph:

for the purpose of intentionally causing harm to theapplicant;

in the performance of a contract to transfer rightsto obtain a patent;

in the performance of a contract whereby a thirdparty makes additional deliveries of material for thepropagation of a variety or breed, with the consentof the applicant, on condition that such deliveriestake place under the supervision of the applicant;

in the performance of a contract whereby a thirdparty carries out sex testing or laboratoryinvestigations or controlled tests to appraise avariety or breed;

(2) 2) distinctiveness. The selection achievementshall be considered distinctive if it is clearlydistinguished from any other generally knownselection achievement in existence at the time theapplication is filed.

The fact of being generally known may beascertained, in relation to the selection achievement:


56


- where the invention has become part of commonknowledge as a result of its being produced,reproduced or brought to the cultivation stagefor propagation or conservation for the abovepurposes;

- where it has been offered for sale or has beensold, exported or imported;

- where it has been entered in official cataloguesor works of reference or is clearly described inany publication or is included in the NationalRegister of Protected Selection Achievements;

(3) 3) uniformity. The selection achievement shallbe considered uniform if on the basis of theparticular characteristics of its propagation, plantsand animals are sufficiently uniform in theircharacteristics;

(4) stability. The selection achievement shall beconsidered stable, if its fundamental characteristicsremain unaltered after repeated propagation or, inthe case of a special propagation cycle, at the endof each such cycle.

(KR Law of March 31, 2005, No. 58)

Article 5Persons entitled to apply for the grant

of a patent

The right to apply for the grant of a patent(hereinafter the “application”) shall be with thebreeder, the employer or their legal successor(hereinafter the “applicant”).

If the selection achievement were created by severalpersons acting together, they shall have the right tomake a joint application.

The application may be filed through a proxyhandling matters relating to the grant of a patent onthe basis of a power of attorney.

Natural or legal persons of other States having nopermanent residence or place of business in theKyrgyz Republic shall deal with the grant of a patentand its maintenance in force through patentattorneys in the Kyrgyz Republic who are registered

with the authorized State Agency for IntellectualProperty, unless otherwise stipulated in aninternational agreement of the Kyrgyz Republic.

Employees of the authorized State Agency forIntellectual Property or of Goskomissiya orGospleminspektsiya shall not have the right, duringthe entire period of their employment in thoseinstitutions, to file an application for the grant of aselection achievement patent.

Article 6A selection achievement created

in the course of employment

If a selection achievement were created whileperforming professional duties or obligations, theright to apply for the grant of a patent shall lie withthe employer, unless otherwise agreed between thebreeder and the employer.

A selection achievement shall be deemed to havebeen created in the course of employment if, at thetime of the creation, the breeder was performingduties:

essential to the task he was performing;

specifically imposed on him for the purpose ofcreating the selection achievement.

If the employer, within four months of the date onwhich he was notified by his breeder of the creationof the selection achievement, fails to file anapplication with the authorized State Agency forIntellectual Property or to cede the right to do so toanother person, the breeder shall have the right tofile an application and to obtain a patent in his ownname. In that case the employer shall have theright to use the selection achievement by paying anagreed sum of compensation to the author or patentholder.

If a selection achievement were created by anemployee using the experience, equipment, andtechnical and other resources belonging to theemployer, but not while performing his professionalduties or carrying out a specific task imposed bythe employer, the right to obtain a patent shall liewith the employee. In that case the employer shall



57

be entitled to priority use of the selectionachievement by paying an agreed sum incompensation to the holder of the patent.

Other relationships arising in connection with thecreation by an employee of a selection achievementshall be governed by the law of the Kyrgyz Republic.

Article 6-1A selection achievement created in the course

of works performed undera Government contract

If a selection achievement is created while workingunder a Government contract intended to serve theneeds of the Kyrgyz Republic, the right to apply forand receive the grant of a patent for the selectionachievement shall lie exclusively with the personcarrying out the work (the contractor), unless it isestablished by the Government contract that theright belongs to the Kyrgyz Republic, on whosebehalf the Government contractor is acting.

If according to a Government contract the right tothe grant of a patent belongs to the Kyrgyz Republic,the Government contractor may file an applicationfor the grant of a patent within six months of beinginformed in writing by the person performing thework (the contractor) that a selection achievementhas been made which meets the criteria forprotection. If within this period the Governmentcontractor does not file an application, the right tothe grant of a patent shall lie with the personperforming the work (the contractor).

If a patent for a selection achievement createdduring the performance of work under aGovernment contract in the service of the KyrgyzRepublic is not obtained by the Governmentcontractor in accordance with the first paragraph ofthis Article, the holder of the patent shall be bound,when so required by the Government contractor, togrant to such a person or persons as he may namea non-exclusive licence to use the selectionachievement concerned for the purposes of worksto be done or deliveries of products to be made forthe needs of the Kyrgyz Republic.

An author of a selection achievement who is not apatent holder shall be paid a fee by the person whoreceived the patent in accordance with the first

paragraph of this Article. For the payment of thefee, the provisions of Article 22 of this Law shallapply.

(KR Law of August 8, 2006, No. 155)

Article 7Applying for the grant of a patent

An application for the grant of patent shall be filedwith the authorized State Agency for IntellectualProperty. The application shall contain:

(1) a supporting statement;

(2) a description of the variety or breed:

for plant varieties – a label designating the variety;

for animal breeds – a description of the breed inconformity with the method currently in use for theapprobation of farm animals;

(3) a document confirming that the fixed fee for thefiling of the application has been paid or that a waiverof the payment has been granted, or setting outreasons for reducing the amount of the fee.

The requirements for making the application andfor the documents to be attached to it are laid downin the Rules on the Compilation, Filing andConsideration of an Application for a SelectionAchievement (hereinafter – the Rules), preparedand approved by the authorized State Agency forIntellectual Property.

See: Rules on the Compilation, Filing andConsideration of an Application for the Grant of aPatent for a Selection Achievement (approved by aDecision of the Board of the State Agency forIntellectual Property within the Government of theKyrgyz Republic (Kyrgyzpatent) of October 30, 1998,No. 6);

Procedure for prosecuting applications for the grantof a patent for a selection achievement (approvedby a decision of the KR Kyrgyzpatent ofNovember 7, 2001, No. 8)

The application shall relate to a single selectionachievement.


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The applicant shall be responsible for the accuracyof the information provided in the application file.The application documents shall be filed in thenational or official language. If the documents arefiled in another language, a translation in the nationalor official language shall be attached to theapplication.

The date on which the application is filed shall bedeemed to be the date on which the documentsreferred to in the first paragraph of this Article arereceived by the authorized State Agency forIntellectual Property.

The applicant may withdraw the application at anytime up to the date on which a decision is receivedon the grant of the patent.

(KR Laws of March 31, 2005, No. 58, August 8,2006, No. 155)

Article 8Name of the selection achievement

The selection achievement shall have a nameindicating the genus to which it belongs.The name of the selection achievement shall makeit possible to identify the selection achievement. Itshall be brief and distinguishable from the namesof existing selection achievements of the same orsimilar botanical or zoological genus. It shall notconsist solely of figures and shall not causeconfusion as to the properties, origin or significanceof the selection achievement or the identity of thebreeder, or run counter to the principles of publicmorality.

Any person who makes use of the selectionachievement shall use the name under which it wasentered in the National Register of ProtectedSelection Achievements.

If the name of the selection achievement does notmeet the requirements of this Article, the applicantshall alter it within the time limit set in the Rules. Anappropriate fee shall be payable for a change ofname of the selection achievement made at theapplicant’s initiative.

The variety or breed shall be presented in othercountries under the name by which it was registeredin the National Register of Protected Selection

Achievements. The competent authority of the othercountry shall register the name supplied for theselection achievement. unless it considers the nameto be inadmissible on its territory. In such a case itmay require the breeder to submit another name.

Any person who offers the selection achievementprotected on that territory for sale, or arranges forits sale in other countries, shall use the name ofthat selection achievement even after expiry of theperiod of validity of the patent or of the breeder’sright in the achievement, unless such use isprevented, in accordance with the seventhparagraph of this Article, by rights acquired earlier.

Third party rights acquired earlier are unaffected. Ifby virtue of a prior acquired right the use of anyparticular name of a variety or breed is prohibitedto a person who is bound by the sixth paragraph ofthis Article to use it, the breeder shall, at the requestof the authorized State Agency for IntellectualProperty, submit another name for that variety orbreed.


Article 9Priority right of a selection achievement

The priority of a selection achievement shall beestablished on the date when the application for thegrant of a patent is filed with the authorized StateAgency for Intellectual Property.

If two (or more) applications for the same selectionachievement are received by the authorized StateAgency for Intellectual Property on the same day,priority shall be established for the applicationdispatched on the earlier date. If it is found onexamination that the applications have the samedate of dispatch, the patent may be granted for theapplication with the earlier number assigned onregistration by the authorized State Agency forIntellectual Property.

The priority of a selection achievement may beestablished by the date of filing of the first applicationin a foreign country with which the Kyrgyz Republicis linked through a bilateral or multilateralinternational agreement on the protection of plant



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varieties and animal breeds, provided the applicationreaches the authorized State Agency for IntellectualProperty within twelve months of that date.

An applicant wishing to use a priority right based onthe first filing shall make a statement to that effectwhen filing the application with the authorized StateAgency for Intellectual Property. Copies of theoriginal application documents, verified by theauthority which received them, together withsamples or other evidence that the selectionachievement which is the subject of bothapplications is the same, shall be submitted withinthree months.

The breeder shall have the opportunity, within twoyears of expiry of the priority or, where the firstapplication has been declined or withdrawn, andsufficient time (following such refusal or withdrawal)to submit to the authorized State Agency forIntellectual Property any necessary information,documents or materials which are required for thepurposes of an examination.

Section IIIExamination of a selection achievement

Article 10Examination of an application for a


The examination of a patent application for aselection achievement shall include a preliminaryexamination and test of the claimed selectionachievement for distinctiveness, uniformity andstability.


Article 11Preliminary examination of an application for a


The preliminary examination of an application for aselection achievement shall be carried out withintwo months of its being filed with the authorized StateAgency for Intellectual Property. During thepreliminary examination the authorized StateAgency for Intellectual Property shall verify that thedocuments specified in Article 7 of this Law arepresent and that the name of the selection

achievement meets the requirements of Article 8 ofthis Law, and ascertains the priority of the selectionachievement.

A fee shall be payable for the preliminaryexamination.From the date of filing and until being notified thatthe application has been accepted for considerationby the authorized State Agency for IntellectualProperty, the applicant may, on his or her owninitiative and on payment of a fee, supplement,correct or clarify the application documents, withoutaltering the substance of the claimed selectionachievement for which the grant of a patent issought.

If the application were filed in breach of therequirements for the formulation and compilationof applications, or if additional materials are requiredfor the purposes of an examination, the applicantshall be sent a request to supply the corrected ormissing materials within two months of receivingthe request.

If it is found during the preliminary examination thatthe name of a selection achievement does not meetthe established requirements, the applicant shall benotified and invited to provide another name withintwo months of receipt of the notice.

At the request of the applicant, where propergrounds exist and subject to payment of theappropriate fee, the authorized State Agency forIntellectual Property may permit an extension of upto six months of the time limit for replying to theenquiry or notification referred to in the fourth orfifth paragraphs of this Article.

If the applicant fails to supply the requestedmaterials within the specified time limit, or to alterthe name of the selection achievement, or to submita request for an extension of the fixed time limit,the application shall be deemed to have beenwithdrawn.

If the result of the preliminary examination ispositive, the applicant shall be notified that hisapplication has been accepted for consideration.

(KR law of March 31, 2005, No. 58)


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Article 12Publication of an application for a selection

achievement patent

Within four months of the date of completion of thepreliminary examination of the application for aselection achievement patent, the authorized StateAgency for Intellectual Property shall publish a noticeconcerning the application in the Official Gazette.The information to be published shall be determinedby the authorized State Agency for IntellectualProperty. When the information about the applicationhas been made public, any person may have accessto the file on it. An appropriate fee shall be payablefor access to the file.

Information about the application shall not bepublished if, before the end of the time limit for itspublication, a decision has been made to grant apatent or the application has been withdrawn, or ifa decision has been made to refuse the grant of apatent and the possibilities for appealing thatdecision have been exhausted.

The author of the selection achievement may, if heis not the patent holder, decline to be named as theinventor in the notice published about theapplication.

Within six months of the date of publication of theapplication, a claim for novelty presented by anyperson to the authorized State Agency for IntellectualProperty shall be taken into consideration.

The claim shall be submitted by the interestedperson to the Appeals Board in the form of anobjection.

The Appeals Board shall notify the applicant of thereceipt of the objection and of its content. If theapplicant does not agree with the objection by theinterested person, he or she may send reasonedarguments against it to the Appeals Board withinone month of being notified.

The objection shall be considered by the AppealsBoard within four months of being received. A feeshall be payable for the filing and consideration ofan objection sent to the Appeals Board.

The person who submitted the objection and theapplicant may both be present when it is considered.If the selection achievement does not meet therequirement of novelty, a decision shall be made torefuse the grant of a patent.

Any of the parties may, in the event of disagreementwith a decision of the Appeals Board, lodge acomplaint with a court within six months of thedecision.


Article 13Temporary legal protection of a


An applicant shall be afforded temporary legalprotection for a selection achievement for the periodfrom the date on which the application is publisheduntil the date when the patent is issued.

Having obtained the patent, the patent holder shallbe entitled to compensation from any person havingperformed without permission, during the period oftemporary legal protection of the selectionachievement, the acts designated in the firstparagraph of Article 24 of this Law.


Article 14Testing a selection achievement for

distinctiveness, uniformity and stability

Tests of a selection achievement for distinctiveness,uniformity and stability shall be carried out byGoskomissiya, Gospleminspektsiya or othercompetent bodies with which the Kyrgyz Republichas bilateral or multilateral agreements on theprotection of plant varieties or animal breeds.

A fee shall be payable for tests of varieties.

In appraising a selection achievement fordistinctiveness, uniformity and stability,Goskomissiya and Gospleminspektsiya may rely on:

the results of tests carried out under agreementswith legal and natural persons in the Kyrgyz Republic



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or with competent bodies in foreign countries onthe testing of selection achievements with which theKyrgyz Republic has bilateral or multilateralagreements on the protection of plant varieties oranimal breeds;

tests carried out by an applicant or on his behalf inor outside the Kyrgyz Republic.

Goskomissiya or Gospleminspektsiya may requirethe applicant to supply any necessary information,documents or planting or breeding material, andmay propose that the applicant carries out certaintests of the variety or breed.

According to the results of the tests on a selectionachievement, Goskomissya and Gosplem-inspektsiya shall decide whether the selectionachievement meets the conditions for protection,and shall prepare an official description of it.

During the process of technical development andduring the validity of the patent, Goskomissiya andGospleminspektsiya may at any time add to thedescription.

The authorized State Agency for IntellectualProperty, on the basis of the results of the tests fordistinctiveness, uniformity and stability, and in thelight of the reports and conclusions ofGoskommissiya and Gospleminspektsiya, shalldecide whether to grant a patent and shall establishits priority, if this has not been done during thepreliminary examination, or decide to refuse thegrant of a patent.

The applicant may have access to the files usedduring the examination and may observe theprogress of the tests.

The applicant may, within two months of the date ofreceiving a decision to refuse the grant of a patent,request copies of the materials opposed to theapplication, and full information concerning theresults of the tests performed.


Article 15Challenging a decision to refuse the grant ofa patent, and extension of missed time limits

If the applicant does not agree with a decision torefuse the grant of a patent, he or she may, withinthree months of the date of receiving the decisionon the application or the copies he has requestedof the materials opposed to the application togetherwith full information on the results of the tests, submitto the Appeals Board an objection to the decision torefuse the grant of a patent.

The objection shall be considered within four monthsof the date when it reaches the Appeals Board. Inthe case of complex applications the time limit maybe extended by agreement with the applicant. Theapplicant may be present, either in person or throughhis or her representative, when the objection isconsidered.

An appropriate fee shall be payable for submittingan objection to the Appeals Board.

The decision of the Appeals Board may be appealedby the applicant through the courts within six monthsof its adoption.

Where the time limits specified in the fourth andfifth paragraphs of Article 11 have been missed bythe applicant, they may be extended by theauthorized State Agency for Intellectual Propertywhere proper grounds exist and subject to thepayment of a fee.

A request for the extension of a missed time limitmay be submitted by the applicant within six monthsof its expiry.


Section IVThe registration of a selection achievement and

the grant of a patent

Article 16Registration of a selection achievement and

grant of a patent

Within two months of a decision on the grant of apatent and the payment of the appropriate fee, theselection achievement shall be registered by the


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authorized State Agency for Intellectual Property inthe National Register of Protected SelectionAchievements.

The fee shall be paid within two months of the dateon which the applicant receives the decision on theexamination to register the selection achievement,or, if an additional fee is paid, within three monthsof the date on which this two-month time limitexpires.

The procedure for entering and listing informationrecorded in the National Register of ProtectedSelection Achievements shall be laid down by theauthorized State Agency for Intellectual Property.

See: Annex 8 “Procedure for the conduct of theNational Register of Selection Achievements of theKyrgyz Republic” to the Regulations on NationalRegisters of Intellectual Property Subject Matter inthe Kyrgyz Republic (approved by Decree No. 194of the KR Kyrgyzpatent, May 13, 2004 ).

A patent for a selection achievement shall begranted to the applicant. If several applicants arenamed in the application for grant of a patent, thepatent shall be granted to the applicant first namedin the application, and shall be used by theapplicants jointly by agreement among them.

A patent for a selection achievement shall begranted in the name of the Kyrgyz Republic andshall be signed by the chief officer of the authorizedState Agency for Intellectual Property.

The format of the patent and the composition of theinformation contained therein shall be decided bythe authorized State Agency for Intellectual Property.

An author of a selection achievement who is not apatent holder shall be issued with a certificate ofauthorship by the State Agency for IntellectualProperty, in accordance with Article 21 of this Law.Corrections of obvious and technical errors shallbe made to a patent already granted at the requestof the patent holder.

If the patent is lost or damaged the patent holdershall be issued with a duplicate on payment of theappropriate fee.

Article 17Term of validity of a patent

The term of validity of a patent for a plant varietyshall be 20 years from the date of entry of theclaimed selection achievement in the State Registerof Protected Selection Achievements. For vines,ornamental timbers, cultivated fruits and forestryspecies, including their sub-species, and for animalbreeds, the term of validity of the patent shall be 25years.


Article 18Maintaining a patent in force

The holder of a patent shall pay an annual fee tomaintain the patent in force. The annual fee shallbecome payable in the first calendar year followingthe year in which the patent was granted.

Article 19Publication of the notice concerning a patent

Within two months of the date of entry in the StateRegister of Protected Selection Achievements, theauthorized State Agency for Intellectual Propertyshall publish a notice of the grant of a patent in theOfficial Gazette. The authorized State Agency forIntellectual Property shall decide what informationis published.


Article 20Patent fees

Fees shall be payable for filing an application for aselection achievement patent, for the examinationand grant of a patent for a selection achievement,for maintaining it in force, and for other legallysignificant acts.

The list of acts for which fees are payable, theamount of the fees and the time limits for paymentas well as the grounds for exemption from payment,reduction of the fees or reimbursement of fees, arelaid down by the Government of the KyrgyzRepublic.



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See: Decision No. 259 of the Government of theKyrgyz Republic of May 14, 1999 on Approval ofthe Regulations concerning Fees for the Patentingof Selection Achievements.

Fees shall be payable to the authorized StateAgency for Intellectual Property by the applicant,the patent holder or, by agreement with them, byany natural or legal persons.

All funds received in the account of the authorizedState Agency for Intellectual Property by way of fees,including currency amounts and payments forservices and materials, shall be used by theauthorized State Agency for Intellectual Property todefray expenses incurred in carrying out the actsprescribed in the first paragraph of this Article, andalso for technical equipment and to devise anddevelop an automated system, compile a bank ofpatent information and train staff.


Section VAuthorship rights in a selection achievement

Article 21The author of a selection achievement

The natural person by whose creative endeavour aselection achievement was made shall berecognized as its author. If several individuals tookpart in the making of the achievement, they shall allbe considered co-authors. The procedure for usingthe rights belonging to co-authors shall be decidedby agreement among them.

Persons who made no individual contribution to thecreation of a variety or breed and who merelyprovided the author or authors with technical,organizational or material assistance, or merelyenabled the rights in the selection achievement tobe formulated, shall not be recognized as co-authors.

Arrogation of the authorship of a breeder andcoercion of another person into co-authorship shallbe offences under the law of the Kyrgyz Republic.

The author of a selection achievement shall havethe right of authorship, which shall be his inalienablenon-proprietary right in law and shall be protectedwithout limit of time. Authorship disputes shall beresolved through the courts.

Disputes arising between a patent holder who isnot the author of a selection achievement and anauthor who is not the holder of the patent shall beresolved through the courts.

A certificate of authorship shall be issued to eachauthor by the authorized State Agency for IntellectualProperty. The certificate of authorship shall confirmauthorship and the right of the author toremuneration from the holder of a patent for theuse of a selection achievement.

In the event of the authorship certificate being lostor damaged, the author shall be issued with aduplicate on payment of the appropriate fee.

The format of the certificate of authorship and theinformation to be shown on it shall be decided bythe authorized State Agency for Intellectual Property.

Article 22Remuneration of an author of a selectionachievement who is not the patent holder

An author of a selection achievement who is notthe holder of the patent shall be entitled to receiveremuneration from the patent holder during the termof validity of the patent for the use of the selectionachievement. The amount of the remuneration andthe conditions for its payment shall be determinedby agreement between the patent holder and theauthor.

If a variety or breed has been created by severalauthors, the remuneration shall be apportioned byagreement between them.

If no agreement is reached between the parties onthe amount of the remuneration and thearrangements for its payment, the dispute shall bedealt with by the courts.


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Section VIRights and obligations of a patent holder

Article 23The holder of a patent

The right to obtain a patent shall lie with:

the author (0•uthors) of a selection achievement;

the employer, in the circumstances defined in Article6 of this Law;

their legal successor, including any person whoacquired such a right by way of assignment.

Article 24Rights of a patent holder

A patent holder shall have the exclusive right to usea selection achievement.

The exclusive right of a patent holder shall meanthe right to perform the following actions with seedsor breeding material of a protected selectionachievement:

production and reproduction;

bringing to sowing conditions for subsequentpropagation;

offering for sale;

sale and other means of disposal;

export from the territory of the Kyrgyz Republic;

import into the territory of the Kyrgyz Republic;

storage for the above purposes.

The right to a patent and the right to use a selectionachievement arising from a patent may betransferred by an agreement to assign the patentor a license agreement to any natural or legalperson.

The exclusive right of a patent holder shall alsoextend to plant materials placed on the marketwithout the permission of the patent holder and in

relation to goods produced from a plant material ofa protected variety.

The permission of a patent holder is necessary foracts referred to in the second paragraph of thisArticle performed with seeds or breeding materialwhich:

are essentially inherited from the characteristics ofa protected variety (the original variety), or breed(the original breed), if such protected varieties orbreeds are not in turn selection achievements whichessentially inherit the characteristics of otherselection achievements;

are not clearly distinguished from a protected varietyor breed;

require repeated use of a protected variety for seedsto be produced.

A selection achievement which essentially inheritsthe characteristics of another (original) protectedselection achievement shall be a selectionachievement which, being clearly distinct from theoriginal:

inherits the commonest essential characteristics ofthe original selection achievement or a selectionachievement which itself inherits the essentialcharacteristics of the original selection achievementand which retains the fundamental characteristicsreflecting the genotype or combination of genotypesof the selection achievement;

corresponds to the genotype or combination ofgenotypes of the original selection achievement,except for deviations caused by the use of methodssuch as individual selection from the original varietyor breed, a selection of an induced mutant or geneticengineering.


Article 25Acts not recognized as an infringement of

the rights of a patent holder

The following are not recognized as infringing theright of a patent holder:



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acts performed for personal and non-commercialpurposes;

acts performed for experimental purposes;

acts using the protected variety or breed as originalmaterial for creating a new selection achievementand, except for cases provided for in the fifthparagraph of Article 24 of this Law, the actsdesignated in the second paragraph of Article 24 ofthis Law, in connection with such selectionachievements;

the use of plant material obtained from peasant(small farm) cultivation in the user’s own enterprisefor a period of two years as seeds for the cultivationof the variety on the territory of that enterprise.

The list of genera and species of plants for whichthe privilege described in the fifth subparagraph ofthe first paragraph of this Article applies shall bedrawn up by the Government of the Kyrgyz Republic.


Article 26Maintaining a selection achievement

A patent holder shall maintain a variety or breed forthe term of validity of the patent in such a way as topreserve the characteristics given in the descriptionof the variety or breed on the date of their entry inthe National Register of Protected SelectionAchievements.

The patent holder shall, at the request of Goskom-missiya, send seeds for control testing and to ensurethat conditions are suitable for on-site inspectionsand, at the request of Gospleminspektsiya, provideunhindered access to the breeding material forchecking and approval on the spot.

Section VIIProtecting the rights of a patent holder

Article 27Liability for infringing the rights of a patent holder

Liability shall be incurred under the law of the KyrgyzRepublic for infringing the rights of a patent holderas defined in this Law.

Claims against an infringer of a patent may also bemade by a licensee, if the license agreement soprovides.

A natural or legal person who fails to comply withthe requirements of this Law in respect of theexclusive rights of a patent holder, or who importsinto the Kyrgyz Republic seeds or breeding materialor another selection achievement without thepermission of the patent holder, shall infringe thepatent, and the selection achievement shall becounterfeit.

Selection achievements imported into the KyrgyzRepublic from States in which they have never beenprotected or have ceased to be protected by law,but are protected under this Law, shall also bedeemed to be counterfeit.(KR Law of March 31, 2005, No. 58)

Article 28Protection of the rights of a patent holder

A patent holder shall be entitled to seek from aninfringer:

(a) acknowledgment of the rights of the patentholder;

(b) restitution of the position which existed beforethe infringement of the right and cessation of theacts which infringe the rights or constitute a threatof infringement;

(c) compensation for loss, including loss of profit;

(d) repayment of any income received by theinfringer as a consequence of the infringement ofthe rights of the patent holder, in lieu ofcompensation for loss;

(e) the adoption of other measures for the protectionof his or her rights, which are provided for innormative legal instruments.

The choice of the measures specified insubparagraphs (c) and (d) of this Article shall be atthe discretion of the patent holder.


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The patent holder shall be entitled to apply to thecourts for the protection of his rights, and also tothe competent investigating authorities.

Counterfeit seeds or breeding material shall besubject to compulsory confiscation if so ordered bya court. Confiscated counterfeit seeds and breedingmaterial may be destroyed, except where they aretransferred to a patent holder at his request.

Where sufficient data exist concerning aninfringement of the rights of a patent holder, theinvestigating authority or the court shall take stepsto locate and seize a selection achievement whichis believed to be counterfeit.

Section VIIIDeclaring a patent void, early termination

of the validity of a patent, renewalof the validity of a patent

(Title of the section in KR Law No 58of March 31, 2005)

Article 29Pronouncing a patent void

From the date of publication of a notice concerninga patent, any person may make a reasonedapplication to the Appeals Board to have a patentdeclared void. The authorized State Agency forIntellectual Property shall send a copy of the appealto the patent holder, who shall, within three monthsof its dispatch, present a reasoned reply. A fee shallbe payable for considering an application to have apatent declared void.

The Appeals Board shall take a decision on the mtterwithin six months, unless additional tests arerequired.

A patent shall be declared void:

if on the date when the patent was granted theselection achievement did not meet the conditionsof novelty, distinctiveness, uniformity or stability;

if the person named on the patent as the holder didnot have legal grounds for obtaining the patent.


Article 30Early termination of the validity of a patent

The validity of a patent shall be terminated early:if within the prescribed time limit the patent holderhas not paid the fee for maintaining the patent inforce;

if the patent holder has not complied within theprescribed time limit with a request fromGoskommissiya or Gospleminspektsiya to supplyseeds, breeding material, documents or otherinformation for ascertaining that a selectionachievement should be protected, or has not fulfilledthe conditions for an on-site inspection of a selectionachievement;

if a selection achievement no longer meets theconditions of uniformity and stability.

The authorized State Agency for Intellectual Propertyshall publish a notice in the Official Gazetteconcerning the early termination of the validity of apatent.


Article 30-1Renewal of the validity of a patent

Right of subsequent use

The validity of a patent for a selection achievementwhich has been terminated because the patent feefor the maintenance of the patent in force has notbeen paid within the specified time limit, may berenewed at the request of the person to whom thepatent belonged. Such a request shall be submittedto the authorized State Agency for IntellectualProperty within three years for plant varieties, andfor vine varieties, ornamental timbers, cultivatedfruits and forestry products, including their sub-species, and for animal breeds, within five years ofthe expiry of the time limit for payment of the above-mentioned patent fee, but before the expiry of thetime limit for the validity of the patent established inaccordance with this Law. A document confirmingpayment of the patent fee for the renewal of validityof the patent shall be attached to the request.



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The authorized State Agency for Intellectual Propertyshall publish a notice in its Official Gazetteconcerning the renewal of the validity of a patent.

Any person who, in the period between the date oftermination of the validity of a patent and the dateof publication in the Official Gazette of the authorizedState Agency for Intellectual Property of a noticeconcerning the renewal of validity of the patent, hasbegun to use the patented selection achievementon the territory of the Kyrgyz Republic, or has madethe necessary preparations within this period fordoing so, shall retain the right to its future use freeof charge without extending the scope of such use(the right of subsequent use).

The right of subsequent use may only be transferredto another natural or legal person in connection witha production process in which the selectionachievement was used or in which the necessarypreparations for doing so were made.

The rights enumerated in the third and fourthparagraphs of this Article do not include the right toissue a licence to any person for the performanceof the action concerned.


Article 31Appealing the decisions of the Appeals Board

of the authorized State Agency forIntellectual Property

A decision of the Appeals Board to grant or refusethe grant of a patent, or to declare a patent void,may be appealed in the courts within six months ofbeing received by the applicant.


Section IXLicenses

Article 32The licensing agreement

Under a licensing agreement (whether an exclusiveor a non-exclusive licence) a patent holder (thelicensor) shall transfer the right to the use of a

selection achievement to another person (thelicensee) by means of a conditional agreementconferring a range of transferred rights, time limits,territories and arrangements for payment.

In case of the transfer of a non-exclusive license,the licensee is given the right to use the selectionachievement for a specified period of time and withinthe limits of the transferred rights provided for inthe licensing agreement. The grant of a non-exclusive licence shall not prevent the licensor fromoffering licenses to third parties or using theselection achievement himself. The license shallnot be transferred by the licensee to third parties.The licensee shall not have the right to grant sub-licences.

Where an exclusive licence is transferred, thelicensee shall be given the exclusive right to usethe selection achievement on agreed terms andterritories and for an agreed period of time. Whengranting an exclusive license, the licensor may notuse the selection achievement, or grant licenses tothird parties on the territory concerned. The licenseeshall be entitled, subject to conditions agreed withthe licensor, to grant sub-licenses to third parties.Terms in the license agreement which impose onthe licensee restrictions not arising from the rightsgranted to him by the patent, or which are notnecessary to maintain the patent, shall be invalid.

A licensing agreement and an agreement to assigna patent shall be subject to registration with theauthorized State body for intellectual property, failingwhich they shall be deemed to be invalid. Noticesof the registration shall be published in the OfficialGazette. An appropriate fee shall be payable forthe registration of a licensing agreement and of anagreement to assign a patent.

See: Rules for the consideration and registration ofan agreement to assign a document providingprotection for industrial property subject matter, aselection achievement, a licensing agreementconferring rights to their use, or an agreement onthe transfer of technology (approved by decisionNo. 3 of the Board of the KR Kyrgyzpatent, March26, 1999, No. 3)



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Article 33Open licenses

A patent holder may publish a declaration in theOfficial Gazette of the authorized State Agency forIntellectual Property stating that any person shallbe entitled to use his selection achievement, fromthe date of notification to that effect by the patentholder, subject to making the payment stipulated inthe declaration.

The amount of the fee for maintaining a patent inforce shall be reduced by 50 per cent from January1, of the year following the year in which thedeclaration on the grant of an open license ispublished.

The authorized State Agency for Intellectual Propertyshall make an entry in the National Register ofProtected Selection Achievements to record thegrant of an open license and the amount of thepayments.

On a declaration being made by the patent holder,and with the consent of all the holders of an openlicense, the authorized State Agency for IntellectualProperty enters in the National Register of ProtectedSelection Achievements a record of the terminationof validity of an open license.

An appropriate fee shall be payable for filing anapplication to terminate the validity of an openlicense and publish in the Official Gazette noticesof termination.

Article 34Compulsory licensing

If within three years of the date on which a patentwas granted the patent holder, or a person to whomrights in the patent have been transferred, does notmake use of a selection achievement which is ofcrucial importance for agriculture in the country,does not supply the market with seeds to thenecessary extent and refuses to enter intoagreements with an interested party, the latter shallbe entitled to apply to the court to grant him acompulsory licence for the use of the selectionachievement concerned.

In exceptional circumstances (natural disasters,catastrophes etc.), the Government of the KyrgyzRepublic shall be entitled to give permission for theuse of a selection achievement without thepermission of the patent holder, notifying him assoon as possible and paying the patent holdercommensurate compensation, the extent andduration of use of the patented selectionachievement being limited to the purposes for whichthe permission was given. Disputes arising fromsuch use shall be resolved by the courts.

If a patent holder does not prove that there areproper grounds for the failure to use a selectionachievement, in granting the licence the court shalldefine the limits of use, and the amount of thepayment to be made and the procedure for makingit. The payment shall be set no lower than the costof the license, which is determined in accordancewith established practice.

When granted a compulsory licence, the licenseeshall be given the right to use the selectionachievement within the scope of the rights of a non-exclusive licence.

The court may order the patent holder to providethe licensee with the reproduced material necessaryto make effective use of the compulsory licence, inexchange for a corresponding payment to the patentholder on acceptable terms.

A compulsory licence shall be provided where thefollowing conditions exist:

the applicant for a compulsory licence shall be in afinancial, technical and scientific position to makeeffective use of the rights of a patent holder:

the patent holder has refused to permit the applicantfor a compulsory license to produce or trade in thereproduced material of the protected selectionachievement by means adequate for the needs ofsociety, or is not willing to give such permission onacceptable terms;

there are no grounds for the patent holder to refuseto permit use of a selection achievement by therequested method.

The duration of the compulsory licence shall bedetermined by the court.



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A notice of the compulsory licence shall be publishedin the Official Gazette and recorded in the NationalRegister of Protected Selection Achievements.

An appropriate fee shall be payable by the licenseefor the registration and the publication in the OfficialGazette of a notice of the grant of a compulsorylicence.


Section XInternational cooperation

Article 35The right to file an application in other States

An applicant may file an application for the protectionof a selection achievement with the competentauthorities of another State, having notified theauthorized State Agency for Intellectual Propertyaccordingly.

Expenditure connected with the protection of rightsin selection achievements outside the KyrgyzRepublic shall be borne by the applicant.


Article 36Rights of foreign citizens and legal persons

Foreign citizens and legal persons may make useof the rights specified in this Law on an equal footingwith citizens and legal persons of the KyrgyzRepublic, in accordance with the internationaltreaties to which the Kyrgyz Republic is a party oron the basis of the principle of reciprocity.

Article 37Effect of international treaties

If international treaties to which the Kyrgyz Republicis a party establish rules other than those containedin this Law, the rules of the international treaty shallprevail.

Section XIFinal provisions

Article 38Monitoring imports and exports of

selection achievements

The import and export of selection achievementsrecorded in the National Register of ProtectedSelection Achievements shall be monitored by thecustoms authorities, in accordance with the customslaw of the Kyrgyz Republic.


Article 39The legal rules for certificates and certificates ofauthorship for selection achievements registered

by the USSR State Committee for Inventions and Innovations

The effect of certificates and certificates ofauthorship for selection achievements registeredwith the USSR State Committee for Inventions andDiscoveries shall be recognized on the territory ofthe Kyrgyz Republic. Holders of certificates andauthorship certificates for plant varieties where the20-year time limit has not elapsed, and for vinevarieties, ornamental timbers and forestry products,and animal breeds with a 25-year period ofprotection from the date of filing of the application,shall have the right to request them to be exchangedfor patents of the Kyrgyz Republic. The requestshall be made to the authorized State Agency forIntellectual Property. The procedure for submittingand considering the requests is laid down in theRules.

Where applications were filed for the grant ofauthorship certificates for new varieties or breedsbefore the entry into force of this Law and wheretests have been carried out on them byGoskommissiya or Gospleminspektsiya anddecisions made to permit their use, the applicantshall be given the right to request the grant of apatent of the Kyrgyz Republic for a selectionachievement on condition that the selectionachievement meets the requirements for protectionunder this Law.


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Applications on which the requests specified in thethird paragraph of this Article were filed within theset time limit shall be considered in the mannerprescribed in this Law and in the Rules, withoutsubjecting the selection achievement to therequirements of novelty under Article 4 of this Law.Patents of the Kyrgyz Republic for a selectionachievement which were granted on requests toexchange certificates or authorship certificates shalltake effect from the date of the entry of the selectionachievement applied for in the National Register ofProtected Selection Achievements and until theexpiry of a 20-year time limit for plant varieties, or25 years’ protection from the date of filing theapplication for vine varieties, ornamental timbersand forestry products, and animal breeds.


Article 40.Transitional provisions

Patents of the Kyrgyz Republic for selectionachievements which were granted before the entryinto force of this Law shall retain the time limits forvalidity specified in them.

Where applications for the grant of a patent for aselection achievement were being processed beforethe entry into force of this Law and positive decisionshave been made on them, patents of the KyrgyzRepublic shall be granted for the selectionachievement with the following periods of validity:for plant varieties, 30 years from the date of entryof the selection achievement applied for in theNational Register of Protected SelectionAchievements; and 35 years for vine varieties,woods and ornamental timbers, cultivated fruits andforestry products, including their sub-species, andanimal breeds.

Applications for the grant of a patent for selectionachievements which were being processed beforethe entry into force of this Law and on which nodecision has been made shall be further consideredin accordance with this Law.


Article 41.On the entry into force of this Law

1. This Law shall take effect from the date of itspublication.

Published in the newspaper “Erkin-Too” on June 26,1998, Nos. 81-82

2. The Government of the Kyrgyz Republic shall,within three months from the date of entry into forceof this Law:

- approve the List of botanical and zoological speciesand of plant and animal varieties which are to beprotected under this Law.

See: Decision of the Government of the KR ofAugust 28, 1998, No. 572 on the Approval of Listsof Botanical and Zoological Genera and Species ofPlants and Animals

- bring its normative legal instruments intoconformity with this Law.

The President of the Kyrgyz Republic, A. Akayev



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REPUBLIC OF MOLDOVA

LAW ON THE PROTECTION OF PLANT VARIETIES*N39-XVI of February 29, 2008

Monitorul oficial N99-101/364 of June 6, 2008

* Translation provided by the Office of the Union.The Law entered into force on October 6, 2008.

Republic of Moldova Law No. 39-XVI

CONTENTS

Chapter IBASIC PROVISIONS

Article 1. Scope and purpose of the LawArticle 2. Legal basisArticle 3. Basic conceptsArticle 4. Legal protection of a varietyArticle 5. Authorities responsible for the legalprotection of a variety

Chapter IISUBSTANTIVE PATENT LAW

Part 1Patentability of a variety

Article 6. Conditions of patentability of a varietyArticle 7. DistinctnessArticle 8. UniformityArticle 9. StabilityArticle 10. Novelty

Part 2Right to request and obtain a patent

Article 11. Right in a patentArticle 12. Varieties bred or discovered andimproved in the course of employmentArticle 13. Right to file a patent applicationArticle 14. Patent application filed by a non-competent person

Part 3Consequences of patent protection

Article 15. Patent owner’s rightsArticle 16. Limitation of patent owner’s rightsArticle 17. Expiry of patent owner’s rightsArticle 18. Use of a variety denominationArticle 19. Limitation of use of a varietydenomination

Part 4Term of validity and termination

of patent protection

Article 20. Term of validity of patent protectionArticle 21. Annulment of a patentArticle 22. Action regarding annulment of a patentArticle 23. Consequences of annulmentArticle 24. Deprivation of patent owner’s rightsArticle 25. Surrender of a patent

Part 5Patent application and patent as a

subject of ownership

Article 26. Rights granted by a patent applicationafter publicationArticle 27. Transfer of rightsArticle 28. Proprietary rightsArticle 29. License contractsArticle 30. Joint ownershipArticle 31. Compulsory licenses

Chapter IIIPATENT APPLICATION

Part 1Conditions of filing a patent application

Article 32. Filing of an applicationArticle 33. Criteria which a patent applicationmust satisfyArticle 34. Language of prosecutionArticle 35. Filing date of the applicationArticle 36. Variety denominations

Part 2Priority

Article 37. Right of priorityArticle 38. Requesting priorityArticle 39. Restoration of the right of priorityArticle 40. Effect of the right of priority

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Chapter IVPROCEDURE FOR GRANTING A PATENT

Part 1Examination conducted prior to the

granting of a patent

Article 41. Examination of an applicationArticle 42. Examination of formArticle 43. Preliminary examinationArticle 44. Publication of an applicationArticle 45. Substantive examinationArticle 46. Technical examination of a varietyArticle 47. Conducting a technical examinationArticle 48. Technical examination reportArticle 49. Objections to a patent applicationArticle 50. Decisions of the AgencyArticle 51. Basis of decisionsArticle 52. Publication of a decisionArticle 53. Withdrawal of a patent application

Part 2Appeals procedure

Article 54. Conditions for filing an appealArticle 55. Examination of an appealArticle 56. Decision in relation to an appealArticle 57. Means of appealing the Board ofAppeals’ decisions

Chapter VPROCEDURE FOR GRANT AND

MAINTENANCE IN FORCE OF A PATENT

Article 58. Grant of a patentArticle 59. Maintenance in force of a patentArticle 60. Patent granted to a non-competentpersonArticle 61. Implications of a change of patentownerArticle 62. Change in variety denominationArticle 63. Technical inspectionArticle 64. Technical inspection report

Chapter VIINFORMING THE PUBLIC

Article 65. Informing the publicArticle 66. RegistersArticle 67. Public inspectionArticle 68. PeriodicalsArticle 69. Preventive marking

Chapter VIIENSURING OBSERVANCE OF RIGHTS

Article 70. Actions for infringement of rightsArticle 71. Actions preceding the grant of a patentArticle 72. Right to bring an action forinfringement of rightsArticle 73. Measures to secure evidence prior tothe filing of an action for infringement of rightsArticle 74. Securing evidence in urgent casesArticle 75. Invalidity of measures to secureevidenceArticle 76. Provision and securing of evidence inthe context of an action for infringement of rightsArticle 77. Right to informationArticle 78. Measures to secure an action forinfringement of rightsArticle 79. RemediesArticle 80. Ensuring enforcement of a courtjudgmentArticle 81. Alternative measuresArticle 82. Compensation for damageArticle 83. Publication of court decisions

Chapter VIIIGENERAL PROVISIONS

Article 84. Extension of time limits andreinstatement of a missed deadlineArticle 85. Restoration of rights (restitutio inintegrum)Article 86. Right of subsequent useArticle 87. RepresentationArticle 88. Examination at the Agency’s initiativeArticle 89. Oral procedureArticle 90. Gathering evidenceArticle 91. Suspension of procedure in courtArticle 92. FeesArticle 93. Protection and testing of varietiesabroadArticle 94. Competencies in examination ofdisputesArticle 95. Use of varieties for productionpurposesArticle 96. National policy

Chapter IXFINAL AND TRANSITIONAL PROVISIONS

Article 97. Entry into forceArticle 98. Organization of enforcement


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Parliament shall adopt this organic Law.

This Law shall create the necessary legal basis forthe application of the provisions of the InternationalConvention for the Protection of New Varieties ofPlants of December 2, 1961, revised at Geneva onNovember 10, 1972, October 23, 1978, and March19, 1991, of Council Regulation (EC) No. 2100/94of July 27, 1994 on the establishment of aCommunity policy for the protection of plantvarieties, as published in the Official Journal of theEuropean Union No. L 227 of September 1, 1994,of Council Regulation (EC) No. 2470/96 ofDecember 17, 1996 on the extension of time limitsfor Community protection of plant varieties for thepotato, as published in the Official Journal of theEuropean Union No. L 335 of December 24, 1996,of European Parliament and Council Directive No.98/44/EC of July 6, 1998 on the legal protection ofbiotechnological inventions, as published in theOfficial Journal of the European Union No. L 213 ofJuly 30, 1998, of European Parliament and CouncilDirective No. 2004/48/EC of April 29, 2004 on theenforcement of intellectual property rights, aspublished in the Official Journal of the EuropeanUnion No. L 157 of April 30, 2004, and of theAgreement on Trade-Related Aspects of IntellectualProperty Rights (TRIPS), concluded on April 15,1994.

Chapter IBASIC PROVISIONS

Article 1Scope and purpose of the Law

(1) This Law shall govern relations arising out of thecreation, legal protection and use of plant varietiesof any genera and species.

(2) The purpose of this Law shall be theestablishment of a legal framework for theorganization and functioning of a system ofprotection of plant varieties.

Article 2Legal basis

(1) The legal relations arising out of the creation,legal protection and use of plant varieties shall begoverned by the Constitution of the Republic ofMoldova, the Civil Code, the Code on Science and

Innovations, the Customs Code, internationaltreaties to which the Republic of Moldova is party,this Law and other normative acts.

(2) If an international treaty to which the Republicof Moldova is party has established norms otherthan those contained in this Law, then the norms ofthe international treaty shall be applied.

Article 3Basic concepts

For the purposes of this Law:

“breeder” means a person who created ordiscovered and improved a variety;

“variety” means a plant grouping belonging to thelowest of the known botanical taxa, whichirrespective of whether it complies fully with thecriteria for the grant of patent protection:

- may be defined by the characteristics of a givengenotype or combination of genotypes; theexpression of the characteristics of the material ofthe variety of the said type may be permanent ortemporary, and moreover the degree of variabilityshall be determined by the genotype or combinationof genotypes;

- may be distinguished from any other plantgrouping by the degree of expression of at leastone of the said characteristics;

- may be considered to be reproduced without anyalterations as a unified whole in terms of itscharacteristics;

“categories of a variety” means clone, line, or hybrid;

“material of a variety” means seeds, whole plantsor parts thereof, capable of reproducing wholeplants;“applicant” means a natural person or legal entityrequesting a plant variety patent;

“patent owner” means a natural person or legal entityto whom a plant variety patent belongs;“genetically modified organism” means any livingorganism which has a new combination of geneticmaterial obtained with the assistance ofcontemporary biotechnology.

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Article 4Legal protection of a variety

(1) Rights in a variety may be obtained and enforcedon the territory of the Republic of Moldova by meansof a plant variety patent (hereinafter referred to as“the patent”), grantedgrant by the State Agency forIntellectual Property in accordance with this Law andsub-regulatory normative acts, and likewise withinternational treaties in this field, one of the partiesto which is the Republic of Moldova.

(2) The scope of the legal patent protection shall bedetermined by the sum of essential characteristicsof the variety, as specified in the official descriptionthereof.

Article 5Authorities responsible for the legal

protection of a variety

(1) The authorities implementing state policy in thearea of legal protection of varieties are the StateAgency for Intellectual Property (AGEPI)(hereinafter referred to as “the Agency”), and theState Commission for the Testing of Plant Varieties(hereinafter referred to as “the State Commission”).State policy in the field of the use of new varieties inbreeding shall be implemented by the NationalCouncil for Plant Varieties.

(2) The Agency is the national department in thefield of intellectual property protection and the singleauthority in the Republic of Moldova which grantslegal protection of new plant varieties.

(3) The Agency:

(a) shall develop drafts of legislative and othernormative acts in the field of the protection of plantvarieties and ratify acts of a procedural nature whichare essential for it to perform functions establishedby Law;

(b) shall register applications for the grantgrant of apatent (hereinafter referred to as “patentapplication”) and carry out examinations thereof,grant and grant patents on behalf of the State,publish official data in the Official Gazette ofIndustrial Property of the Republic of Moldova(hereinafter referred to as “the Gazette”);

(c) shall maintain the National Collection of PlantVariety Patents and exchange information withinternational organizations for the protection of plantvarieties and with appropriate authorities of othercountries;

(d) shall keep the National Register of Plant VarietyPatent Applications (hereinafter referred to as “theNational Register of Applications”) and of theNational Register of Plant Variety Patents(hereinafter referred to as “the National Register ofPatents”), and shall establish and confirm theprocedure by which they are to be maintained.

(4) The Agency and State Commission shallrepresent the Republic of Moldova in theInternational Union for the Protection of NewVarieties of Plants (hereinafter referred to as“UPOV”), and also in other international and inter-governmental organizations for the protection ofplant varieties, and support bilateral and multilateralcooperation with them in this field.

(5) The State Commission shall be the authoritywhich carries out the testing of plant varieties in itsvariety testing centers, experimental stations,specialized institutions and laboratories applyingmethodologies and within the time limits prescribedby international standards, in order to determine theircompliance with the conditions of patentability,namely distinctness, uniformity and stability, andalso the testing of varieties in order to determinetheir agronomical value. The State Commissionshall maintain the Register of Plant Varieties of theRepublic of Moldova (hereinafter referred to as “theRegister of Plant Varieties”), including varietiesapproved for cultivation and sale in the Republic ofMoldova.

Chapter IISUBSTANTIVE PATENT LAW

Part 1Patentability of a variety

Article 6Conditions of patentability of a variety

(1) A plant variety shall be patentable only where itis:


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(a) distinct;(b) uniform;(c) stable, and(d) new

(1) The variety shall be designated with adenomination in accordance with Article 36.

Article 7Distinctness

(1) The variety shall be deemed to be distinct if it isclearly distinguishable by the presence of at leastone or more relevant features stipulated by a certaingenotype or combination of genotypes, from anyother variety whose existence is a matter of commonknowledge at the time of the filing of the patentapplication with the Agency, or at the time of therequested priority, as applicable.

(2) The distinctness of the variety shall bedetermined by features which can be displayed anddescribed precisely.

(3) The variety’s existence shall be deemed to be amatter of common knowledge if at the applicationfiling date:

(a) it is protected in the Republic of Moldova or inanother country and has been entered into theofficial register of protected varieties;

(b) it has been entered in the Register of PlantVarieties or in similar registers and referencecollections of other countries;

(c) a registered application exists for the grant ofprotection to the variety or for its entry in the Registerof Plant Varieties provided that, as a result of theapplication, protection is granted or the variety isentered in the Register.

Article 8Uniformity

A variety shall be deemed to be uniform if, takinginto account differences arising as a result of theparticular features of its propagation, plants of thevariety remain sufficiently uniform in the expressionof characteristics included in the determination ofdistinctness of the variety, and also of othercharacteristics used to describe the variety.

Article 9Stability

A variety shall be deemed to be stable if its relevantcharacteristics for the determination of itsdistinctness and any other features used to describethe variety remain unchanged after repeatedpropagation, or at the end of each cycle ofpropagation.

Article 10Novelty

(1) A variety shall be deemed to be new if at thetime of filing of the patent application at the Agencyor at the time of the requested priority, material forthe propagation of the variety or harvested materialof the variety has not been sold or put at the disposalof third parties by the breeder or with his consentfor the purposes of commercial exploitation of thevariety:

(a) on the territory of the Republic of Moldova, earlierthan one year before the filing date of the patentapplication;

(b) on the territory of other States, earlier than fouryears, and in the case of trees and vines, earlierthan six years before the filing date of the patentapplication.

(2) The following shall have no bearing on thenovelty of a variety as per paragraph (1):

(a) making the material of the variety available toan official body in the context of certain legalobligations, or third parties on the basis of anagreement or in the context of any other legalrelations for the purposes of cultivation,reproduction, propagation, conditioning or storingprovided that the breeder is not deprived of theexclusive right to dispose of material of the variety,and provided that material of the variety has notbeen made available for commercial purposespreviously, except where such material of the varietywas used repeatedly to obtain hybrids and if thematerial of the hybrid and the harvested material ofthe hybrid were sold;

(b) disposal of the material of the variety by onecompany or firm to another company or firm of whichit is a subsidiary, or if both companies or firms are

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wholly owned by a third company or firm, providedthat there was no further disposal;

(c) disposal without reference to the kind of materialof the variety or the harvested material of the variety,obtained from plants which have been cultivated forexperimental purposes or for the purpose of thecreation or discovery and improvement of a varietyand which have not been used for fresh reproductionor propagation;

(d) disposal of the material of the variety occurringin the context of the exhibiting of the variety by thebreeder at an exhibition which is officially recognizedin compliance with the Convention on InternationalExhibitions;

(e) disposal of the material of the variety in thecontext of an agreement between the breeder anda third party, according to which the breederapproves the cultivation of seed material under hissupervision.

Part 2Right to request and obtain a patent

Article 11Right in a patent

(1) The right in a patent shall belong to a breeder orhis successor-in-title.

(2) Where the variety has been created ordiscovered and improved jointly by two or morebreeders, the right in a patent shall belong to themall or to their successors-in-title. The priority of rightsin the variety of each of them shall be establishedby a written contract between the breeders. Thesame priority shall be applied in cases where oneor more breeders discovered the variety, but othersimproved said variety.

(3) The right in a patent shall likewise belong jointlyto a breeder and a certain person (or certainpersons) if the breeder and person (or persons)have declared in writing that they have agreed toshare such a joint right.

(4) Where the right in a patent belongs jointly to twoor more persons in accordance with parts (2) and(3), one person or several of the said persons may,by means of a written statement, confer the otherswith the right in the patent.

(5) Where two or more persons created ordiscovered and improved the same varietyindependently of each other, the right in a patentshall belong to the person whose patent applicationhas the earlier date of filing or priority, assuming ithas been granted. This provision is applied only incases where the first application was published inaccordance with Article 44.

(6) In the context of procedures conducted by theAgency, the applicant is the person entitled to apatent.

Article 12Varieties bred or discovered and improved in the

course of employment:

(1) The right in a patent for a variety bred ordiscovered and improved by a breeder in theperformance of an employment contract or researchcontract shall belong to the employer where thecontract between said employer and the breederhas not stipulated otherwise; in this instance, thebreeder shall have the right to commensurateremuneration as prescribed by the contract. Theamount of remuneration shall be determineddepending on the profit obtained as a result ofutilizing the variety during the term of validity of thepatent to the variety, and on the value of the variety,and shall comprise not less than 15 per cent of thisprofit, including receipts from the sale of licenses.

(2) A variety shall be deemed to have been bred inthe course of employment if, in breeding the variety,the breeder:

(a) performed duties entrusted to him by virtue ofhis position;

(b) performed duties specifically entrusted to himfor the purpose of breeding a new variety;


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(c) made use of material or financial means madeavailable to him by the employer or a person whocommissioned the breeding of the variety, as wellas of knowledge and expertise gained in theperformance of professional duties.

(3) Where the employer, within 60 days of havingbeen notified by the breeder of the breeding of thenew variety, has not filed an application for a patentor has not assigned his right to file an application toanother person, or has not instructed the breederin writing to keep the newly bred variety secret, thebreeder shall acquire the right to file a patentapplication and to obtain a patent in his own name.The employer shall in that case have a preferentialright to be granted a non-exclusive license to usethe variety.

(4) Where the employer has obtained a patent to avariety bred in accordance with paragraph (1), theemployee shall have a preferential right to obtain anon-exclusive license to use the variety.

(5) Where the parties have not reached agreementregarding the amount of remuneration to which theemployee is entitled, or the value of the license,these grants shall be resolved by a court dependingupon the contribution of each party to the breedingof the variety and upon its commercial value.

(6) The procedure for the breeding and use ofvarieties by employees shall be established by theRegulations on Industrial Property Subject Matter,bred as part of employment duties, as approved bythe Government.

Article 13Right to file a patent application

(1) The following shall be entitled to file a patentapplication:

(a) natural and legal persons domiciled or with aplace of business in the Republic of Moldova;

(b) natural and legal persons domiciled or with aplace of business on the territory of a State party torelevant international treaties, a party to which isthe Republic of Moldova;

(c) natural and legal persons of any other country,provided that said country grants natural and legalpersons domiciled or with a place of business inthe Republic of Moldova protection for varieties ofthe same botanical taxon which is equivalent to theprotection granted by this Law.

(2) The patent application may be filed by two ormore persons complying with the requirementsstipulated in paragraph (1). Denial of a patent toone or more breeders shall not extend to the others,where they have acted in accordance with this Law.

Article 14Patent application filed by a

non-competent person

(1) Where it is recognized by a final court judgmentprior to the granting of a patent by the Agency thatan entity with the right to obtain a patent under Part(1), Article 11, is a person other than the applicant,then that person shall be entitled:

(a) to continue the patent application procedure asif it were his own instead of the applicant within threemonths of the date of the final court judgment;

(b) where the patent application was withdrawn orrefused, to file a fresh patent application for thesame variety which retains the filing date of theoriginal application within one month of the date ofwithdrawal or refusal of the application;

(c) to request withdrawal of the patent application.

(2) The interested party shall present a copy of thecourt decision to the Agency. The court’s decisionshall be entered in the National Register ofApplications and shall be published in the Gazette.

Part 3Consequences of patent protection

Article 15Patent owner’s rights

(1) The patent owner shall have the exclusive rightin the patent and in the patent-protectable variety,which comprises the right to exploit the variety, theright to manage the patent and variety, and the rightto prohibit third parties from performing the following

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acts in relation to the material of the patented varietyor the harvested material of the variety without priorapproval:

(a) breeding or reproduction (for the purposes ofpropagation);

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) selling or other kinds of marketing;

(e) exporting;

(f) importing;

(g) storing for any of the purposes mentioned initems (a) to (f).

(1) The provisions of paragraph (1) shall apply inrelation to the harvested material of the protectedvariety only where it has been obtained by meansof unapproved use of the material of the protectedvariety, except when the patent owner couldreasonably benefit from his right in relation to thematerial of the variety.

(2) The provisions of paragraph (1) shall also beapplied in relation to products obtained directly fromthe material of the protected variety, where theseproducts were obtained by means of unapproveduse of the material of the protected variety, andwhere the patent owner did not have the opportunityto profit from his right in relation to this material.

(3) The provisions of paragraphs (1) to (3) shalllikewise apply in relation to varieties:

(a) which are essentially derived from the protectedvariety, where the protected variety itself is not anessentially derived variety;

(b) which are not distinguishable from the protectedvariety, as stipulated in Article 7;

(c) the breeding of which requires repeated use ofthe protected variety.

(5) According to the meaning of item (a) ofparagraph (4), a variety shall be deemed to beessentially derived from another variety (hereinafterreferred to as “the initial variety”), where it:

(a) is predominantly derived from the initial varietyor a variety which, in turn, is predominantly derivedfrom the initial variety;

(b) is distinguishable from the initial variety inaccordance with Article 7;

(c) conforms to the initial variety to the extent ofexpression of characteristics that result from thegenotype or combination of genotypes of the initialvariety, with the exception of differences resultingfrom selection.

(6) Where there are several owners of the samepatent, their mutual relations in relation to the useof the protected variety shall be determined byagreement between them. Where no suchagreement exists, each of the patent owners shallbe fully entitled to use the variety at his owndiscretion, and to institute patent infringementproceedings against any person who uses thevariety without the approval of the patent co-owners,but shall not be entitled to renounce the patentwithout notification of same, or to enter into licenseagreements or agreements on the assignment ofrights without their consent.

(7) Enforcement of the patent owner’s rights maynot infringe any public authority directive adopteddue to moral principles or for the purposes ofsecuring public order, public security, the protectionof the health and life of people, animals or plants,the protection of the environment, the protection ofindustrial or commercial property or for the purposesof safeguarding competition, trade and agriculturalproduction.

Article 16Limitation of patent owner’s rights

The right of a patent owner shall not extend to actsperformed for:

(a) private, non-commercial purposes;

(b) scientific research and experiments;


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(c) the breeding or discovery and improvement ofother varieties, as well as to acts specified inparagraphs (1) to (3) of Article 15, in relation to theseother varieties, except where the provisions ofparagraph (4), Article 15 shall apply.

Article 17Expiry of patent owner’s rights

The rights of the patent owner shall not extend toactions in relation to the material of the protectedvariety, or a variety to which the provisions ofparagraph (4), Article 15 shall apply, and which wasproduced by a breeder or with his consent, wheresuch actions:

(a) are not intended for the subsequent propagationof the variety, except where such propagation wasenvisaged in the context of the sale of thecorresponding material;

(b) are not connected with the export of the materialof the variety, enabling propagation of the variety ina country in which varieties of the botanical genusor species are not protected, except the export ofmaterial for the purposes of consumption.

Article 18Use of a variety denomination

(1) Any person offering or assigning to third partiesfor commercial purposes the material of a protectedvariety, or a variety to which the provisions ofparagraph (4), Article 15 shall apply, must use thedenomination of the variety conferred to it inaccordance with Article 36. The denomination of avariety must be easily recognizable andreproducable in writing.

(2) A person undertaking actions specified inparagraph (1) in relation to any material of the varietymust specify the denomination of the variety at therequest of any authority, customer or persondemonstrating a legitimate interest.

(3) The provisions of paragraphs (1) and (2) shallbe valid even after the expiry of patent protection.

Article 19Limitation of use of a variety denomination

(1) The patent owner may not use the right grantedto him in relation to a designation identical to thedenomination of the protected variety, in order toprohibit the free use of said denomination in relationto the variety even after the expiry of patentprotection.

(2) A third party may use the right granted to him inrespect of a designation identical to thedenomination of the protected variety, in order toprohibit the free use of this denomination only wheresaid right was granted before the conferral of thedenomination under Article 36.

(3) The denomination conferred on a varietypatented in the Republic of Moldova or a UPOVmember State, or any other denomination with whichthe denomination of the variety might be confused,may not be used on the territory of the Republic ofMoldova in relation to another variety of the sameor closely related species or the material of this othervariety.

Part 4Period of validity and termination

of patent protection

Article 20Term of validity of patent protection

(1) The term of validity of patent protection for a plantvariety shall be up to 25 years or, in the case ofvarieties of vines, potatoes and trees, up to 30 yearsfrom the publication date of information in theGazette regarding the grant of the patent.

(2) On the request of the patent owner, the term ofpatent protection may be extended for a further fiveyears following the expiry of the terms specified inparagraph (1).

Article 21Annulment of a patent

A patent may be annulled where:

(a) On the date of grant of the patent, the conditionsstipulated in Articles 7 or 10 had not been satisfied;

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(b) The grant of the patent was based on data anddocuments provided by the applicant, and as at thedate of the grant of the patent, the conditionsspecified in Articles 8 or 9 had not been satisfied;

(c) The patent was granted to a person who wasnot entitled to it, provided it was not subsequentlytransferred to a competent person.

Article 22Action regarding annulment of a patent

(1) An action regarding the annulment of a patentmay be brought at any time during the term of thepatent, and must only be predicated on the reasonsspecified in Article 21.

(2) Any person may bring an action in court to annula patent. In the case provided for by item (c) of Article21, the action may only be brought by a personentitled to enter patents in the National Register ofPatents as a patent owner, or jointly by personsentitled to enter a patent in the Register as jointowners in accordance with paragraph (2) ofArticle 11.

(3) action to annul a patent may be brought evenwhere rights granted by the patent have beenterminated, or where the patent has been refused.

(4) A decision regarding the annulment of the patentshall be communicated to the Agency by theinterested parties and entered in the NationalRegister of Patents. A communication regarding theannulment of the patent shall be published in theGazette.

Article 23Consequences of annulment

(1) Where a patent is declared annulled, theconsequences of protection specified in Articles 15to 19 shall be regarded as void from the date ofgrant of the patent.

(2) The retrospective effect of annulment of a patentshall not extend:

(a) to decisions relating to actions for theinfringement of rights, which are recognized as finaland coming into legal force before the decision toannul was taken;

(b) to contracts concluded before the decision toannul was taken, to the extent that they wereimplemented before this decision was taken. In theinterests of fairness, compensation of sums paidunder the contract may be demanded.

Article 24Deprivation of patent owner’s rights

(1) The Agency shall announce the withdrawal ofthe patent owner’s rights with consequences infuturum where it has been established that theconditions specified in Articles 8 and 9 are no longerbeing satisfied. Where it has been established thatthese conditions were not being satisfied at a dateearlier than the date of deprivation of rights, thenthe deprivation of rights may commence from thisearlier date.

(2) The Agency shall announce the deprivation of apatent owner’s rights where, within a time limitprescribed by the Agency, the patent owner:

(a) refuses to provide at the request of the StateCommission information, documents or material ofthe protected variety necessary for its controlledtesting;

(b) fails to propose another denomination for thevariety, where the denomination of the variety nolonger complies with the conditions of Article 36;

(c) fails to pay patent grantgrant and maintenance-in-force fees;

(d) where the patent owner or his successor-in-titleno longer satisfy the conditions specified in Articles13 and 87.

(3) The deprivation of a patent owner’s rights on thebasis of non-payment of an annual fee or, wherenecessary, of an additional fee, shall be regardedas entering into force from the expiry date of theprescribed time limit for payment of this fee.

(4) The Agency shall publish a notice in the Gazetteregarding the deprivation of a patent owner’s rights.


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Article 25Surrender of a patent

(1) A patent owner shall be entitled to surrender apatent by written request to the Agency, on conditionof payment of the prescribed fee.

(2) The surrender of a patent by one of the patentowners shall not terminate the validity of the patent,which shall remain in the ownership of the otherpatent owners.

(3) The surrender of a patent shall take effect onlyafter its entry in the National Register of Patents. Arecord of this shall be published in the Gazette.

(4) The surrender of a patent shall be entered inthe National Register of Patents only with theconsent of a person enjoying a preferential rightwhich has been entered in the Register.

(5) Where the patent is the subject of a licensecontract entered in the National Register of Patents,the surrender of the patent shall be entered in theRegister only where the patent owner providesevidence of the fact that he informed the licenseeof his intention to surrender the patent. In such acase, the licensee shall have a preferential right toobtain the patent in his name within three monthsof the patent owner notifying him in writing of hisintention to surrender the patent.

(6) At the same time as submitting a written requestto the Agency, the patent owner shall notify thebreeder of his intention to surrender the patent. Insuch a case, the breeder shall have a preferentialright to obtain the patent in his name within threemonths of the patent owner informing him in writingof his intention to surrender the patent.

Part 5Patent application and patent as a

subject of ownership

Article 26Rights granted by a

patent application after publication

(1) During the period from the date of publicationuntil the date of grantgrant of a patent, the patentapplication shall temporarily grant the applicant the

same rights as those granted to the patent owner inaccordance with Article 15.

(2) Infringement by third parties of the rightsspecified in paragraph (1) shall oblige the guilty partyto compensate damages in accordance with the law.Compensation for damage shall be dischargedfollowing the grantgrant of the patent. The amountof compensation shall be prescribed by agreementbetween the parties. Where the parties are unableto reach agreement regarding the amount ofcompensation, it shall be fixed by a court.

(3) The consequences of a patent application, asspecified in paragraph (1), shall be regarded asinvalid and shall cease to exist where the patentapplication has been withdrawn or rejected.

Article 27Transfer of rights

(1) The patent application and patent may betransferred to one or more successors-in-title.

(2) Transfer of a patent application or patent bymeans of assignment may only be effected to asuccessor-in-title which satisfies the conditionsspecified in Articles 13 and 87. Assignment shall beperformed in writing and signed by the parties tothe contract, with the exception of assignment onthe basis of a court decision or any other finaldocument of a legal procedure. Otherwise, it shallbe considered invalid.

(3) Regarding cases referred to in Article 61, thetransfer of rights shall not affect the rights of thirdparties which have been obtained before the dateof transfer.

(4) The transfer of rights shall be regarded ascoming into effect for the Agency and may bepresented to third parties only after the provision ofspecified documentary evidence and following theirentry into the National Register of Applications orthe National Register of Patents.

Article 28Proprietary rights

(1) A patent may be an independent subject of amortgage or the subject of another proprietary right.

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(2) The rights specified in paragraph (1) shall beentered into the National Register of Patents at therequest of one of the parties, and correspondinginformation shall be published in the Gazette.

Article 29License contracts

(1) The patent application and patent may be thesubject of a license contract. The licenses may beexclusive or non-exclusive.(2) The applicant or patent owner may claim rightsgranted by the patent application or patent to alicense owner who has infringed one of theconditions or limitations stated in the licensecontract, in accordance with part (1).

Article 30Joint ownership

In the case of joint ownership of a patent, theprovisions of Articles 27 to 29 shall be appliedmutatis mutandis in relation to the appropriate partsbelonging to the joint owners, where such parts aredefined by the contract.

Article 31Compulsory licenses

(1) The court may grant compulsory, non-exclusivelicenses for the use of the protected variety to oneor more persons filing an application within threeyears after the grant of the patent, under thefollowing conditions:

(a) authorization for such use shall be given whereit is in the public interest;

(b) such use may be authorized only where prior tosuch use, the proposed user has attempted to obtainauthorization from the patent owner on reasonablecommercial terms and by acceptable means,although, regardless of his best efforts, he has notbeen successful within a reasonable period of time.Deviation from this provision is only permissible insituations of national emergency or othercircumstances of extreme urgency or in cases ofpublic, non-commercial use. In such instances, thepatent owner shall be notified as soon as reasonablypracticable;

(c) the scope and duration of such use shall belimited to the purposes for which it was authorized;

(d) such use shall be non-exclusive and non-assignable, except for transfer with the part of theenterprise or its intangible assets which enjoy suchuse;

(e) any such use shall be authorized predominantlyto satisfy the requirements of the domestic market;

(f) authorization for such use shall be liable, subjectto appropriate protection of the legitimate interestsof the persons so authorized, to be terminated, ifthe circumstances which led to it cease to exist andit is evident that they will not recur. The courts shallhave the authority to review the case, uponreasonable request, where these circumstancespersist;

(g) the patent owner shall be paid adequateremuneration appropriate to each individual case,taking into account the economic value of theauthorization;

(h) the validity of any decision relating toauthorization of such use, and any decision relatingto remuneration stipulated in relation to such use,may be subject to judicial review or otherindependent review by higher authorities;

(i) the provisions specified in items (b) and (e) shallnot apply where such use is permitted to remedy apractice deemed after judicial or administrativeprocess to be anti-competitive. The need to correctanti-competitive practices may be taken into accountin determining the amount of remuneration payablein such cases. The courts shall have the right torefuse termination of authorization where it is likelythat the circumstances which led to suchauthorization may recur.

(2) A compulsory license shall only be granted to aperson who is able to use the variety in accordancewith the license, which shall confer on its owner theright to obtain source material of the variety fromthe patent owner.

(3) The compulsory license shall not prevent thepatent owner using the protected variety or grantinglicenses for its use to others.


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(4) A compulsory, non-exclusive license for the useof a protected variety may be granted, upon request,to the owner of the patent for a biotechnologicalinvention on condition of payment of fairremuneration where:

(a) he unsuccessfully attempted to obtain a licensecontract from the plant variety patent owner;

(b) the invention is regarded as significanttechnological progress, with substantial economicsignificance in relation to the protected variety.

(5) Where the plant variety patent owner has beengranted a compulsory, non-exclusive license for theuse of the patented invention, a reciprocal, non-exclusive license for use of the variety may begranted, upon application, to the patent owner ofthe invention on reasonable terms.

(6) A compulsory license may be granted to thepatent owner for an essentially derived variety, underthe provisions of paragraph (1). The conditions forgranting the compulsory license may includepayment of fair remuneration to the owner of theinitial variety patent.

(7) The decision of the court to grant or, undercertain circumstances, to cancel the compulsorylicense shall be notified by the holder to the Agency,entered into the National Register of Patents andpublished in the Gazette.

(8) Where the holder of the compulsory license hasfailed to exploit the variety within one year followingthe date of the grant, the license may be cancelledby a court decision. The validity of the license shalllikewise be terminated in the event where its holderfails to exploit the variety within two years followingthe date of the grant.

Chapter IIIPATENT APPLICATION

Part 1Conditions of filing a patent application

Article 32Filing of an application

The patent application shall be filed at the Agencyby a competent person under Article 13 in person

or via a patent attorney in accordance withArticle 87.

Article 33Criteria which a patent application must satisfy

(1) The patent application must include:

(a) a statement regarding the grant of the patent;

(b) specification of the botanical taxon;

(c) information about the applicant (applicants);

(d) information about the breeder (breeders);

(e) a proposal for the denomination of the variety;

(f) a technical description of the variety (technicalquestionnaire);

(g) a declaration by which the applicant assumesresponsibility for confirming that the variety for whichprotection is sought conforms with the provisionsof Article 10;

(h) information relating to any other application filedfor the variety, along with such applications.

(2) The following shall accompany the application:

(a) a document regarding payment of fees for thefiling of the application;

(b) a document regarding priority, where necessary;

(c) a power of attorney, where the application is filedthrough a patent attorney;

(d) necessary documentary proof of acquisition ofthe right to the patent, where the applicant is notthe breeder or is not the sole breeder;

(e) photographs or drawings, as necessary;

(f) results of testing of the variety, carried out by acompetent body, as necessary;

(g) permission for introduction into the environment,granted by a competent national body in accordancewith legislation in the field of biological security,where the variety is a genetically modified organism.

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(3) A separate patent application shall be filed foreach variety or each category of variety.

(4) The breeder shall be entitled to be specified inthe application, patent, and in Agency publicationsconcerning the application or patent. The breedershall likewise be entitled to refuse attribution of hisname in the patent and relevant Agencypublications, for which purpose a request shall befiled in writing with the Agency.

(5) Other requirements which the application mustsatisfy shall be prescribed in regulations ratified bythe Government (hereinafter referred to as “theRegulations”).

Article 34Language of prosecution

(1) A patent application shall be filed with the Agencyin Moldovan.

(2) The filing of the application and accompanyingdocumentation shall be permitted in anotherlanguage with the exception of the items specifiedin (a) Article 33(1)((a)-(e).

(3) Where the application and accompanyingdocumentation are filed in another language, for thepurposes of examination the applicant shall beobliged to provide a translation into Moldovan withintwo months of filing the application. Otherwise, theapplication shall be declined.

Article 35Filing date of the application

(1) The filing date of the patent application shall bedeemed to be the date when the Agency waspresented with an application containing, at the veryleast, the items specified in (a) Article 33(1)((a)-(g).

(2) Where the requirements specified in Article33(1)(a)-(g) are not satisfied, the filing date of theapplication shall be deemed to be the date on whichthese conditions were satisfied.

(3) The parts of the application specified in item (h)of paragraph (1), and documents accompanying theapplication specified in paragraph (2) of Article 33,

with the exception of those specified in items (b)and (g), may be provided by the applicant withintwo months of the application filing date.

(4) Permission to introduce a genetically modifiedorganism into the environment shall be providedsimultaneously with the filing of the application orwithin two months of the date of completion of thesubstantive examination.

Article 36Variety denominations

(1) The variety must be designated by adenomination which includes its generic designationand which enables it to be identified.

(2) Variety denominations:

(a) must be easily identifiable and reproducable byusers and must not consist solely of figures, exceptwhere this conforms with the established practicefor designating specific varieties;

(b) must not be misleading or confusing in relationto the characteristics, qualities or identity of thevariety, or in relation to the identity of the breeder;

(c) must be different or may not be confused withthe denomination of another variety of the same, orclosely related, species, which has been entered inthe Official Register of Varieties or marketed in anyUPOV member State, except when this other varietyno longer exists and its denomination did not acquirespecial significance;

(d) must be used even after the expiry of the termof the patent;

(e) must be different or may not be confused withother denominations used for the marketing ofgoods, or with denominations which may not beused by virtue of other normative acts.

(f) must not conflict with ethical standards andpublic order.

(3) Where the variety has already been entered inthe Official Register of Plant Varieties and thematerial of the variety has been marketed in any


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UPOV member State, the denomination of thevariety in the patent application filed in the Republicof Moldova must be the same.

(4) Where, by virtue of a previously acquired right,a person obliged to use the variety denomination inaccordance with paragraph (5) is prohibited fromdoing so, the Agency may require the applicant toprovide another denomination for the variety.

(5) Any person who, on the territory of any UPOVmember State, offers for sale or markets the materialof a variety protected on the territory of said State,shall be obliged to use the denomination of thatvariety, even after the expiry of the term of the patentprotecting that variety, except where the provisionsof paragraph (4) apply.

(6) A variety denomination conforming withparagraphs (1) to (5) shall be entered in the NationalRegister of Patents at the same time as the patentis granted, and shall be published in the Gazette.

(7) The conditions for conferral of the denominationto the variety shall be prescribed in the Regulations.

Part 2Priority

Article 37Right of priority

(1) The priority of the application shall be determinedby its filing date. Where several applications havebeen filed on the same date, priority shall beestablished dependent upon the order in which theyare received.

(2) Any person or his successor-in-title who has fileda plant variety patent application in accordance withthe law in a UPOV member State or member of theWorld Trade Organization, shall enjoy for thepurposes of filing the application for that samevariety the right of priority for 12 months from thefiling date of the preceding application; the filing dayshall not be included in this period.

(3) The applicant shall enjoy the right of priority ofthe preceding application on condition that suchapplication exists on the filing date.

(4) The right of priority shall be recognized in relationto any filing of an application valid as a correctlyregistered national application.

(5) The applicant shall be granted a two-year periodfollowing the expiry of the term of priority or, wherethe initial application was refused or withdrawn, anappropriate period after such refusal or withdrawal,in order to provide all documentation, informationor materials requested for the purpose of carryingout an examination.

Article 38Requesting priority

(1) An applicant who wishes to benefit from thepriority of a previous application must file anapplication regarding the request of priority, a copyof the previous application, and, where necessary,a translation into Moldovan.

(2) Priority shall be requested at the same time asfiling of a patent application or within two months ofthe date of filing of the application, and shall beconfirmed by a priority document.

(3) The request for the right of priority shall be invalidwhere the applicant has failed to provide the Agencywith copies of the previous applications, certifiedby a competent authority, within three months ofthe date of filing of the application.

(4) Where the previous application was not inMoldovan, the Agency shall be entitled to request acertified translation into Moldovan.

Article 39Restoration of the right of priority

(1) Where an application in which the priority of aprevious application is sought is filed after the expiryof the time limit specified in paragraph (2) of Article37, but not later than two months after the expiry ofsaid period, the Agency may re-establish the rightof priority, if, at the same time as the filing of thepatent application, the applicant filed a requestconfirming that under these circumstancesappropriate measures had been taken, or that failureto comply with the time limit was unintentional.

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(2) An application regarding the re-establishment ofthe right of priority shall be filed within two monthsof the expiry date of the priority period specified inparagraph (2) of Article 37, along with payment ofthe prescribed fee; failure to do so will result in theapplication being deemed not to have been filed.

(3) Where the Agency has not been provided with acopy of the previous application in the time limitspecified in paragraph (3) of Article 38, the Agencymay restore the right of priority if the followingconditions are satisfied in aggregate:

(a) the applicant filed an appropriate request withthe Agency before the expiry of the time limitprescribed in paragraph (3) of Article 38;

(b) the applicant provided the Agency withconfirmation of the request filed with the Office whichregistered the previous application, proving that acopy of the previous application was requested in aperiod not exceeding 14 months from the filing dateof said previous application;

(c) the Agency was provided with a certified copy ofthe previous application within one month of the datewhen the Office which registered the previousapplication granted the applicant with the relevantcopy.

Article 40Effect of the right of priority

(1) The effect of the right of priority shall be thatwhere Articles 7 and 10 apply, the filing date of theprevious application and the filing date of the patentapplication shall be one and the same.

(2) The filing of another patent application,publication of information on a variety or use of anew variety which was the subject of an initialapplication, in the period specified in paragraph (2)of Article 37, may not serve as a basis for refusinga subsequent application and the acquisition ofrights by third parties.

(3) Failure to comply with the time limits stipulatedin paragraphs (2) and (3) of Article 38, or to pay thepriority claim fee shall cause the priority claim notto be recognized.

Chapter IVPROCEDURE FOR GRANTING A PATENT

Part 1Examination conducted prior to the

granting of a patent

Article 41Examination of an application

(1) The Agency and the State Commission shallverify whether the patent application and varietywhich is the subject matter of the patent complywith the requirements stipulated by the Law. To thisend, the Agency shall conduct an examination ofform, a preliminary examination and a substantiveexamination of the patent application. The StateCommission shall conduct a technical examinationof the patent application.

(2) The Agency shall be entitled to request from theapplicant what it deems to be necessary additionalmaterials in relation to the identity of the applicanthimself or of the breeder, a correctly registerednational application, or to the fulfillment of conditionsof patentability.

(3) The conditions for providing the additionalmaterials specified in paragraph (2) shall beprescribed in the Regulations.

Article 42Examination of form

(1) In conducting a formal examination, the Agencyshall within two months verify the compliance of thepatent application with the criteria for the award ofa filing date under paragraph (1) of Article 35.

(2) Where the application complies with the criteriaspecified in (a)Article 33(1)((a)-(g), the Agency shallenter information relating to the application in theNational Register of Applications.

(3) Where the application fails to comply with thecriteria specified in (a)Article 33(1)((a)-(g), theAgency shall give the applicant the opportunity tocorrect any shortcomings within a time limitprescribed in a notification.


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(4) If in the prescribed timeframe the applicant failsto provide the necessary information or to satisfythe conditions of (a)Article 33(1)((a)-(g), theapplication shall be deemed not to have been filed,and the applicant shall be accordingly notified ofthis.

Article 43Preliminary examination

(1) In conducting a preliminary examination, withinthree months of the filing date of the patentapplication the Agency shall verify:

(a) the application’s compliance with the conditionsspecified in Article 33, and, where necessary, Article34;(b) compliance of the contents of the applicationdocumentation with the conditions specified in theRegulations;

(c) compliance of the procedure for claiming rightof priority with the provisions of Articles 37 and 38;

(d) fulfillment of the requirements of Article 87;

(e) payment within the prescribed time limit of theapplication filing fee.

(2) Where deficiencies are identified which may beobviated, the Agency shall notify the applicant,having granted him the opportunity to obviate themwithin a time limit specified in the notification. Wherethe specified time limit is not observed, or in theabsence of a request to extend the time limit, thepatent application shall be refused.

Article 44Publication of the application

(1) Three months after the date of filing the patentapplication, the Agency shall publish informationregarding said application in the Gazette. Theinformation subject to publication shall be prescribedin the Regulations.

(2) At the same time as the publication of theapplication in the Gazette, the Agency shall publishthe documents relating to the application in the formin which they were provided by the applicant.

(3) Patent applications which were withdrawn orrefused prior to the completion of technicalpreparation for publication shall not be published.

Article 45Substantive examination

(1) In conducting a substantive examination, withinsix months of the filing date of the patent applicationthe Agency shall verify:

(a) compliance of the variety for which a patent hasbeen applied for with the conditions specified inArticle 10;

(b) compliance of the variety denomination with theconditions specified in Article 36.

(2) The Agency is entitled to request from theapplicant any missing corroborative documents orclarifying materials which he must provide within atime limit specified in the Agency’s notification.Where the time limit is not observed, or in theabsence of a request to extend it, the patentapplication shall be refused.

(3) Where during the examination it is establishedthat the variety denomination does not comply withthe conditions of Article 36, the applicant shall beoffered the opportunity to provide the Agency with anew variety denomination within a time limitspecified in the notification. Where the time limit isnot observed, or in the absence of a request toextend it, the patent application shall be refused.

(4) Where the patent application complies with theprescribed conditions, the Agency shall notify theapplicant to this effect.

(5) Upon completion of the substantive examination,the Agency shall forward copies of the applicationdocumentation to the State Commission for thepurpose of conducting a technical examination ofthe variety.

Article 46Technical examination of a variety

(1) Where after conducting examinations underArticles 43 and 45, the Agency establishes that thereare no obstacles to granting a patent, steps shall

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be taken to conduct a technical examination in orderto:

(a) determine whether the new candidate varietybelongs to the botanical taxon applied for by theapplicant and identified in the preliminaryexamination;

(b) establish whether the variety complies with theconditions of distinctness, uniformity and stabilityaccording to Articles 7, 8 and 9;

(c) establish whether a description of the new varietyenables it to be distinguished from anothercommonly known variety.

(2) A technical examination of the variety shall becarried out by the State Commission and shallinclude the conduct of breeding tests:

(4) The State Commission shall establish a date andplace for the seeds or propagating material requiredto conduct a technical examination to be providedfree-of-charge, in appropriate samples and innecessary quantities. Failure to provide thenecessary materials within the prescribed time limitshall result in the application being deemed to havebeen withdrawn.

(5) The State Commission may request allnecessary information and documents from theapplicant.

Article 47Conducting a technical examination

(1) The State Commission shall conduct atechnical examination of a variety in accordance withdirections and within time limits prescribed byinternational standards.

(2) The applicant shall pay the prescribed fee forthe technical examination to be conducted.

(3) Where testing of the variety has been carriedout by a competent authority of a UPOV memberState or by the applicant, the State Commission shallanalyze its results in order to confirm or deny thesuitability of the testing done.

(4) On the basis of the results of the technicalexamination, the State Commission shall compilea report on the technical examination and send it tothe Agency.

Article 48Technical examination report

(1) Where the State Commission deems the resultsof the technical examination to be insufficient toevaluate the variety, it shall send a report on thetechnical examination and a more precise officialdescription of the variety to the Agency.

(2) Where in the course of conducting a technicalexamination it is established that the variety doesnot comply with the conditions in Articles 7, 8 and9, the State Commission shall compile a report onthe technical examination and send it to the Agency.

(3) The Agency shall notify the applicant of theresults of the technical examination and invite himto provide feedback within the time limit specifiedin the notification.

(4) Where it is established that the report on thetechnical examination does not contain sufficientgrounds to make a decision, the State Commissionmay, on its own initiative and following consultationwith the applicant or upon reasonable request ofthe applicant, stipulate the conducting of anadditional examination on condition of an additionalpayment. Any additional examination carried outprior to taking the final decision shall be deemed tobe a constituent part of the examination carried outin accordance with Article 46(1).

(5) The results of the technical examination shallbe for the exclusive use of the Agency and mayonly be used in future with its consent.

Article 49Objections to a patent application

(1) Any person may file objections to a patentapplication in writing. Objections must bereasonable and relate exclusively to the failure tocomply with Articles 6 to 10 and 36 and may belodged:


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(a) within three months of the publication date ofthe application where the proposed denominationdoes not comply with the provisions of Article 36;

(b) in the period between the publication of theapplication and before a decision is taken in thecase of failure to comply with the conditionsspecified in Articles 6 to 10.

(2) The applicant shall be notified of objections andgranted the opportunity to respond within twomonths. The objections and responses providedshall be taken into account by the Agency in takingthe decisions specified in Article 50.

Article 50Decisions of the Agency

(1) Within three months of the date of obtaining thereport on the technical examination and the preciseofficial description of a variety, where it has beenestablished that the examination results aresufficient to take a decision on an application, andin the absence of any of the obstacles specified inArticle 49 and paragraph (2) of this Article, theAgency shall take a decision regarding the grant ofthe patent.

(2) The Agency shall take a decision to reject anapplication:

(a) where the applicant has failed to eliminatedeficiencies within the time limit specified in Articles43 and 45;

(b) where the applicant has failed to satisfy therequirements specified in paragraph (1) of Article46;

(c) where the applicant has failed to propose avariety denomination in accordance with Article 36;

(d) where on the basis of the technical examinationreport it has been concluded that the conditions ofArticles 7, 8 and 9 have not been satisfied;

(e) at the request of a person whose right in thepatent has been recognized by a court decision.

(3) The Agency shall notify the applicant of thedecision taken.

Article 51Basis of decisions

(1) The Agency’s decisions must contain thegrounds for taking said decisions.

(2) The Agency’s decisions shall be basedexclusively on grounds and items of evidence withwhich interested parties could familiarizethemselves orally or in writing and on which theycould state their point of view.

Article 52Publication of a decision

(1) The Agency shall publish notification of itsdecision to grant a patent or refuse an applicationin the Gazette.

(2) At the same time as the publication of thenotification of the decision to grant a patent, theAgency shall publish patent documents containingthe official description of a variety and photographs,as necessary. Information for publication shall bedetermined by the Regulations.

Article 53Withdrawal of a patent application

(1) An applicant shall be entitled to withdraw a patentapplication at any time prior to a decision being takenas to its validity.

(2) Where there is more than one applicant, a patentapplication may only be withdrawn with the consentof each of them.

(3) Where the applicant is not the breeder, he shallinform the breeder of his intention to withdraw theapplication at the same time as lodging a requestto this effect in writing with the Agency. In this case,the breeder within two months of receiving suchnotification shall have a preferential right to applyfor continuation of the application procedures asthe applicant.

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Part 2Appeals procedure

Article 54Conditions for filing an appeal

(1) Any decision taken by the Agency may beappealed at the Board of Appeals of the Agency.

(2) Any natural or legal person may lodge an appeal,while complying with the provisions of Article 87,against a decision affecting him directly, or againsta decision affecting another person, but who has adirect relationship with him.

(3) A justified appeal shall be presented to theAgency in writing within two months of the day ofthe decision where the appeal is lodged by theapplicant, or otherwise, within two months of thedate of publication of the decision.

(4) The appeal shall only be deemed to have beenlodged upon payment of the prescribed fee.

(5) An appeal lodged according to paragraph (1) hasa suspending effect. The Agency, where it considersit necessary, may take the decision not to suspendan appealed decision.

Article 55Examination of an appeal

(1) Where an appeal is permitted for examination,the Board of Appeals shall verify whether it isreasonable.

(2) In the course of examination of the appeal, whichshall be conducted in accordance with theRegulations on the Board of Appeals of the Agency,the parties may lodge as necessary within the timelimit prescribed by the Board of Appeals theirfeedback on the notifications addressed to them,or the communications received from other parties.(3) The parties to the appeals procedure shall beentitled to make oral representations.

Article 56Decision in relation to an appeal

(1) Following examination of an appeal, the Boardof Appeals shall either pass final judgment on it, ortransfer the matter to a competent sub-division ofthe Agency or to the State Commission in order torepeat the examination.

(2) Where the Board of Appeals transfers the matterto a competent sub-division of the Agency or to theState Commission, the grounds and directionscontained in the Board of Appeals’ decision shallbe binding on said sub-division and the StateCommission, provided that the facts of the matterare one and the same.

(3) The decision of the Board of Appeals shall bepublished in the Gazette within two months of itbeing taken.

Article 57Means of appealing the

Board of Appeals’ decisions

(1) Any decision taken by the Board of Appeals maybe challenged in court under the provisions of theCode of Civil Procedure. The bringing of a suit shallnot have a suspending effect.

(2) Grounds for bringing a legal action may be lackof competence, infringement of the fundamentalrequirements of the procedure, infringement of theprovisions of this Law or the order of its applicationor abuse of authority.(3) A Board of Appeals’ decision, which in theprocedure is not final with respect to one of theparties, may not be the subject of a legal actionbefore the final decision is taken, except where sucha decision does not provide for a legal action to bebrought.

(4) The court is entitled to cancel or amend anappealed decision.

(5) A legal action may be brought in court within twomonths of the date of notification of interestedparties of the Board of Appeals’ decision.

(6) An action may be brought by any of the partiesto proceedings which have been affected by theBoard of Appeals’ decision.


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(7) The Agency shall be informed of a court’sdecision by an interested party. The Agency shallenter amendments arising from the court’s final andlegally enforceable judgment in the nationalregisters, and shall publish said judgment in theGazette within two months of the date of registrationwith the Agency.

Chapter VPROCEDURE FOR GRANT AND

MAINTENANCE IN FORCE OF A PATENT

Article 58Grant of a patent

(2) Where a decision to grant a patent has not beenchallenged, or the lodged appeals were rejected,the Agency shall grant a patent to the person entitledto said patent, provided that the prescribed feeshave been paid, and shall publish information to thateffect in the Gazette.

(3) The patent shall be granted by the Agency onthe basis of the decision on the grant of the patent.

(4) The date of grant of the patent shall be thepublication date of a notification of its grant in theGazette. A list of information to be published shallbe determined by the Agency. The date of grant ofthe patent shall be entered in the National Registerof Patents.

(5) Where the prescribed fees for the grant of apatent have not been paid following publication ofthe notification of the grant of the patent under theconditions specified in the Regulations, the patentshall not be granted; a notification regarding theloss of the patent owner’s rights shall be entered inthe National Register of Patents and published inthe Gazette.

Article 59Maintenance in force of a patent

(2) In order to maintain a patent in force, it shall benecessary to pay annual fees in accordance withthe provisions of Article 92.

(3) Annual fees shall be paid following publicationof the notification regarding grant of a patent, andshall be deemed to have been paid when paymentis effected within the time limit prescribed in theRegulations.

(4) Where the annual fee has not been paid withinthe prescribed time limit, it may be paid within sixmonths of the expiry date of said time limit, subjectto the payment of an additional fee.

Article 60Patent granted to a non-competent person

(1) Where a patent is granted to a person who isnot entitled to it, then the person who is so entitledmay request the transfer of the patent to his name,without prejudicing other existing rights or actionsaccording to the law.

(2) Where a person is only entitled to partial patentprotection, he may request recognition as the jointowner of the patent in accordance with paragraph(1).

(3) The actions specified in paragraphs (1) and (2)may only be examined in court within five years ofthe publication date of the decision to grant thepatent in the Gazette.

(4) Paragraph (3) shall not be applied where, on thedate of the grant or grant of the patent, the patentowner was aware that he was not entitled to it, orwas not the sole person so entitled.

(5) The lodging of a legal action shall be recordedin the National Register of Patents. A certified copyof the court judgment shall be provided to theAgency by the interested party. The final and legallyenforceable court judgment shall be entered in theNational Register of Patents and come into forcefor third parties as of the publication date in theGazette.

Article 61Implications of a change of patent owner

(1) Where there is a change of patent ownerfollowing a court judgment, a license agreement andany other rights shall be terminated by entering theauthorized person in the National Register ofPatents.

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(2) Where, prior to bringing the action, the patentowner or license owner used the variety on theterritory of the Republic of Moldova or undertookeffective and substantive preparations for thispurpose, they may continue such use, provided thatan application for the grant of a non-exclusivelicense is submitted to the new patent owner, asentered in the National Register of Patents. Theapplication must be submitted within the time limitstipulated in the Regulations. The license shall begranted for a defined period and under reasonableconditions.

(3) In the absence of agreement between theparties, the non-exclusive license specified inparagraph (2) may be granted by a court.

(4) The provisions of paragraph (2) shall not beapplied where the patent owner or license owneracted in bad faith when they began to use the varietyor prepared for such use.

Article 62Change in variety denomination

(1) The denomination of the variety, conferred to itin accordance with Article 36, may be changedwhere the Agency establishes that suchdenomination fails to satisfy or no longer satisfiesthe requirements specified in the relevant Article,and where it has previously been possible todemonstrate the right of a third party, and the patentowner has agreed with the change, or where use ofthe variety denomination by the patent owner or byany other person is prohibited by a court decision.

(2) The Agency shall propose to the patent ownerto provide an amended variety denomination inaccordance with Article 36.

(3) The amended denomination proposed maybecome the subject of objections under Article 49.

Article 63Technical inspection

(1) The patent owner shall be obliged to maintainthe protected variety for the patent’s entire term tosuch an extent as to retain all of its features asspecified in the official description of the variety asat the date of the grant of the patent.

(2) The State Commission may carry out a technicalinspection under Articles 46 and 47 in order to verifywhether the protected variety is in continuedexistence as such, i.e. whether it retains all thefeatures specified in the official description as atthe date of the grant of the patent.

(3) The patent owner shall be obliged to provide theState Commission with all information necessaryto verify the existence of the variety as such. Heshall be obliged to provide variety material and toallow testing for the purpose of establishing whetheressential measures have been taken to guaranteethe existence of the variety as such.

Article 64Technical inspection report

(1) Where the State Commission has establishedthat the variety is no longer uniform or stable, it shallsend the Agency a report with its conclusions.

(2) Where, upon conducting the technicalinspection, it emerges that the variety fails to complywith the conditions of patentability specified in Part(1), the Agency shall notify the patent owner of theresults of the inspection and give him the opportunityto provide feedback.

(3) Where the patent owner fails to providefeedback, the Agency shall announce his loss ofrights as granted by the patent, in accordance withArticle 24.

Chapter VIINFORMING THE PUBLIC

Article 65Informing the public

The Agency and State Commission shall, by virtueof their authority, inform the public of all decisionsand notifications which stipulate a certain time limitor communication, which in turn are stipulated byother provisions of this Law, order of the DirectorGeneral of the Agency, or order of the Chairman ofthe State Commission.

Article 66Registers


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(2) The Agency shall keep the National Register ofApplications, including:

(a) patent applications, containing an indication oftaxon, preliminary variety denomination, filing date,names and addresses of the applicants, breedersand patent attorney;

(b) all information relating to the completion of theprocedure concerning patent applications, withreference to the information specified initem (a);

(c) proposals for the denomination of the variety;(d) amendments affecting the applicant or the patentattorney.

(1) The Agency shall keep the National Registry ofPatents, in which the following information shall beincluded after the decision regarding the grant of apatent is taken:

(a) the species and denomination of the variety;

(b) the official description of the variety, or anindication of a document at the Agency’s disposal,which contains such a description;

(c) for varieties requiring certain components inorder to obtain material for repeated use, anindication of such components;

(d) the names and addresses of the patent owner,breeder and patent attorney;

(e) the commencement date and expiry date of theperiod of validity of the patent;

(f) upon request, any contractual right to exclusiveuse or any right to compulsory use of the variety,including the name and address of the personenjoying the right of use;

(g) instructions for the identification of the varietyas an initial variety, or a variety essentially inheritingthe features of the initial variety, including thedenomination of the varieties and the names of theparties involved.

(1) The Agency shall maintain the registers specifiedin paragraphs (1) and (2), in accordance with theprovisions of the Law on Registers.

(2) The State Commission shall maintain theRegister of Plant Varieties, which contains thefollowing information about varieties permitted forbreeding in the Republic of Moldova:

(a) registration number;

(b) variety denomination;

(c) breeder’s name and address;

(d) holder’s name and address;

(e) year of registration;

(f) some morphological and breedingcharacteristics of the variety.

Article 67Public inspection

(1) The registers referred to in Article 66 shall beopen for public inspection.

(2) Where there is legitimate interest and inaccordance with the conditions specified in theprovision, the following shall be open for publicinspection:

(a) documents concerning the patent application;

(b) documents concerning the granted patent;

(c) cultivation tests conducted for the purposes ofthe technical examination of the variety;

(d) cultivation tests conducted for the purposes ofthe technical inspection of the maintenance of thevariety.

(3) In the case of varieties whose material,consisting of specific components, must be usedrepeatedly in order to obtain the variety, upon therequest of the applicant any information on thecomponents, including their cultivation, shall beexcluded from the number of materials subject topublic inspection. After the decision regarding thepatent application has been taken, such anapplication shall not be accepted.

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(4) The Agency and State Commission shall not beentitled to transfer material provided or obtainedwithin the framework of testing to third parties,except where the relevant person gives his consent.

(5) Upon request by an interested party, the Agencyand the State Commission shall be entitled to grantexcerpts from the register upon payment of theprescribed fee.

Article 68Periodicals

(1) The Agency shall, on a monthly basis, grant theGazette, containing:

(a) information entered in the National Register ofApplications and the National Register of Patents,and likewise any other information whosepublication is stipulated by this Law;

(b) notifications and information of a general nature,received from the Director General of the Agency,and also any other information affecting this Lawand the application thereof.

(2) The State Commission shall periodically publishthe Register of Plant Varieties, including varietiesand hybrids allowed for breeding and marketing.

Article 69Preventive marking

(1) The patent owner shall be entitled to mark thematerial of a variety or the harvested material of avariety with preventive marking indicating that thevariety is patented.

(2) The absence of preventive marking shall nothave legal consequences.

(3) A person who, directly or indirectly, falselyspecifies that the material of a variety or theharvested material of a variety obtained or sold byhim belongs to a variety patented by another personshall be answerable before the law.(4) Where genetically modified plant varieties aremarketed, the material of a variety shall be markedappropriately with an indication on the label and/orin accompanying documentation of the presenceof genetically modified organisms.

Chapter VIIENSURING OBSERVANCE OF RIGHTS

Article 70Actions for infringement of rights

(1) The undertaking of any act specified in Article15 without the permission of the patent owner shallbe deemed to be an infringement of rights arisingfrom a patent application or a patent, as shall thefollowing acts:

(a) incorrect use of the variety denomination orfailure to indicate the denomination in contraventionof the provision of Article 18(2);

(b) contrary to Article 19(3), use of the denominationof a protected variety or of a denomination so similaras to be easily confused with the denomination of aprotected variety.

(2) A person who has committed the infringementsspecified in paragraph (1) shall be obliged tocompensate for damages sustained by the patentowner. The amount of compensation may not beless than the benefit obtained by the infringer.

Article 71Actions preceding the grant of a patent

The patent owner may apply for reasonablecompensation from any person who in the periodbetween the publication date of the patentapplication and the patent grant date committed anact which would have been prohibited had the patentbeen granted.

Article 72Right to bring an action for infringement of rights

(1) An action for infringement of rights may bebrought by a patent owner.

(2) A licensee may bring an action for infringementof rights, except where such an eventuality wasdeliberately excluded by way of agreement with thepatent owner in the case of an exclusive license, orby a court in accordance with Article 31 or 61.


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(3) Any licensee shall have the right to participatein infringement proceedings brought by the patentowner in a court in order to obtain compensationfor damages sustained.

Article 73Measures to secure evidence prior to thefiling of an action for infringement of rights

(2) Any competent person who has providedsufficient evidence to confirm the infringement ofhis rights may request a court or other competentauthority prior to the filing of an action against illegalacts to take temporary measures to secure relevantevidence provided that the confidentiality of theinformation is safeguarded. A court may pronouncejudgment on the adoption of measures to secureevidence on condition that a deposit is lodged bythe plaintiff or a guarantee of equivalent value isprovided, necessary to compensate any damagescaused to the defendant where no infringement isconfirmed.

(3) In order to adopt measures to secure evidence,the court shall have the right to:

(a) request a detailed description of the variety orits materials, the rights to which are assumed tohave been infringed, either with or withoutspecimens;

(b) to seize the disputed products;

(c) to seize materials and equipment used in theproduction process and/or distribution of thedisputed products, and also documents relatingthereto.

(1) The procedure for applying measures to secureevidence shall be performed by a court or othercompetent authority in accordance with the Codeof Civil Procedure. Measures to secure evidenceshall be implemented with the assistance of a bailiff,accompanied where necessary by a representativeof the Agency and a police officer.

Article 74Securing evidence in urgent cases

(2) Measures to secure evidence may be prescribedwithout the knowledge of the defendant where adelay could cause irreparable harm to the patent

owner or where there is a risk of the evidence beingdestroyed. The affected parties shall be promptlyinformed of the court’s decision.

(3) The decision regarding the securing of evidencemay be appealed to the court.

Article 75Invalidity of measures to secure evidence

(1) Measures to secure evidence shall be deemedworthless or invalid:

(a) where within 20 working days the plaintiff fails tobring an action on infringement of rights in court;

(b) as a result of any actions or inaction of the plaintiffwhich involved the causing of damage;

(c) upon the establishment of the absence ofinfringement or the risk of infringement of rights ina plant variety;

(d) in other cases specified by law, by court decision.

(2) Where damage is caused by measures tosecure evidence recognized as worthless or invalid,the plaintiff shall pay the defendant appropriatecompensation.

Article 76Provision and securing of evidence in the context

of an action for infringement of rights

(1) Where a party presents arguments as a basisfor his claims, and also information that specificevidence is available to the opposing party, the courtshall order that these documents are provided insufficient and reasonable number provided thatconfidentiality of the information is ensured. In thecase of an infringement of rights in a commercialfield, the court may additionally order the parties toprovide bank, financial or trade documentation.

(2) Where one of the parties to proceedingsunreasonably refuses access to necessaryinformation or in bad faith delays providing suchinformation, thereby hindering settlement of thedispute, the court shall make a judgment on whetheror not to take into consideration the statement ofclaim on the basis of information provided, includingthe appeals or claims of the party adversely affected

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by the refusal to grant access to the information, oncondition that the parties are granted the opportunityof a hearing as regards their claims or evidence.

Article 77Right to information

(1) Where upon examination of the dispute it hasbeen established that rights in a plant variety havebeen infringed, a court may request informationregarding the provenance and distribution channelsof materials infringing the right in the variety fromthe infringer or any other person:

(a) in whose possession counterfeit materialsintended for sale were discovered;

(b) identified by the person mentioned in item (a)as a person involved in the production, reproductionor distribution of the variety materials.

(2) The information specified in paragraph (1) shallinclude where necessary:

(a) the names and addresses of the breeder,distributor, supplier and previous owners of thevariety materials, and also of wholesalers andretailers;

(b) information on the amount produced, supplied,obtained or ordered, and also about the price of therelevant variety materials.

(3) The provisions of paragraphs (1) and (2) shallbe applied without detriment to other legislative andregulatory norms, which:

(a) shall enable the patent owner to obtain moredetailed information;

(b) shall govern use of information provided inaccordance with this Article in civil or criminal cases;

(c) shall determine responsibility for abuse of theright to information;

(d) shall give the opportunity to refuse to provideinformation which might force the person identifiedin paragraph (1) to recognize his own participationor that of close relatives in the infringement of thepatent;

(e) shall govern the safeguarding of confidentialityof information sources or the processing of personaldata.

Article 78Measures to secure an action for infringement of

rights

(1) Having established actual or unavoidableinfringement of a patent, a court may, upon theapplication of the right owner, take measures tosecure an action on infringement of rights in relationto the infringer and/or intermediaries, such as:

(a) taking a decision on the temporary prohibitionof any act which is an infringement of the patentowner’s rights, or permitting the continuation of suchacts on condition that a deposit is lodged which issufficient to compensate the patent owner fordamages sustained;

(b) the sequestration of materials suspected in theinfringement of a patent in order to prevent theiruse in commercial trade;

(c) the sequestration of any of the infringer’sproperty, including freezing of bank accounts,requiring bank, financial or commercialdocumentation to be provided, where theinfringement has been committed in the commercialarena and there is a risk of failure to compensatefor damages sustained.

(2) Measures for ensuring maintenance of rightsmay be prescribed without the defendant’sknowledge, where any delay could cause irreparableharm to the patent owner, or where there is a riskthat the evidence will be destroyed. The affectedparties shall be promptly informed of the court’sdecision.

Article 79Remedies

(1) Having established that an infringement of rightshas taken place, a court may, upon application, orderappropriate measures to be taken in relation to theproducts infringing a patent, and in appropriatecases in relation to materials and equipment whichwere used for creating and manufacturing suchproducts.In particular, such measures are:


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(a) temporary withdrawal from trade;

(b) final and complete withdrawal from trade;

(c) destruction.

(2) The measures specified in paragraph (1) shallbe implemented at the expense of the defendant,except when there are important reasons preventingthis.

(3) Upon examination of an application for remedies,a court shall be led by the principle of fairness, byproportionality of the seriousness of the infringementand prescribed means of protection, and shall alsotake into account the interests of third parties.

Article 80Ensuring execution of a court judgment

Where a court passes judgment on the verificationof a patent infringement, the court may, upon thepatent owner’s request, take measures to ensurethe infringer fulfils the judgment, in accordance withwhich the latter shall be ordered to cease any actionsinfringing the rights of the patent owner. For thispurpose, the court may oblige the infringer to lodgean appropriate deposit or provide a guarantee ofequivalent value. The patent owner may alsorequest the application of such measures tointermediaries whose services are used by thirdparties in infringing the patent.

Article 81Alternative measures

The court may, upon the request of the infringer,prescribe financial compensation to the plaintiffinstead of the measures specified in Articles 79 and80, where the infringer acted unintentionally orcarelessly, where adoption of such measures wouldcause him disproportionate detriment, and wherefinancial compensation for the plaintiff is reasonable.

Article 82Compensation for damage

(1) Upon the request of an aggrieved party, a personwho deliberately infringed, or who had reasonablegrounds to recognize the patent had been infringed,

shall compensate the patent owner for realisticdamage caused by the infringement of his rights. Indetermining the amount of compensation:

(a) all existing circumstances must be taken intoaccount, such as negative economicconsequences, including profit foregone by theaggrieved party, income obtained illegally by thedefendant, and also other aspects, such as moraldamage sustained by the patent owner as a resultof infringement of his rights;

(b) as an alternative, a single lump sum may bedetermined, calculated based upon, at the veryleast, regular payments or remuneration whichwould be due to the patent owner where thedefendant has requested permission to use therelevant plant variety.

(3) Where the infringer has committed aninfringement unwittingly or did not have reasonablegrounds to be aware of said infringement, he shallbe obliged to compensate the patent owner for profitforegone or damage caused, as prescribed inaccordance with the law.

Article 83Publication of court decisions

(1) In the context of actions for infringement ofprotected rights, at the request of the plaintiff andat the expense of the defendant, a competent legalauthority may prescribe measures for the distributionof information relating to a court decision, includingdisplaying it in public places, and also partial or fullpublication of the decision.

(2) The competent legal authority may prescribeadditional publicity measures, including mass-market, appropriate to the specific circumstances.

Chapter VIIIGENERAL PROVISIONS

Article 84Extension of time limits and reinstatement

of a missed deadline

(1) Time limits concerning the application or patentprescribed by this Law or by the Regulations maybe extended by submitting a request to the Agencyprior to the expiry of the prescribed time limit. The


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time limit shall be extended by no more than sixmonths from the expiry date of the prescribed timelimit.

(2) The request for an extension to a time limit shallbe deemed to be submitted only upon payment ofthe relevant fee.

(3) An applicant who has breached a time limitprescribed in relation to any procedure under theAgency’s auspices may request the reinstatementof the missed deadline within six months of theexpiry date of the prescribed time limit. The missedprocedure must be undertaken within this time limit.The request shall be deemed to be submitted onlyafter the payment of the fee for the reinstatementof a missed deadline; otherwise, it shall be rejected.

(4) The provisions of this Article shall not beapplicable to the time limits specified in paragraphs(1) and (3) of this Article, paragraph (3) of Article12, paragraph (3) of Article 34, paragraph (3) ofArticle 35, in Articles 37 to 39, 49, paragraph (3) ofArticle 54, paragraph (3) of Article 59, and paragraph(2) of Article 85.

Article 85Restoration of rights (restitutio in integrum)

(1) Where, despite taking all appropriate measuresdictated by circumstances, the applicant or patentowner or any of the parties to a procedure underthe Agency’s auspices are not confined to any timelimit, a direct consequence of which is the loss ofthe right or the opportunity to appeal, the rights ofthe relevant person or party, upon request, shall berestored.

(2) A request for the restoration of rights shall besubmitted in writing within two months of the dateof the elimination of the reason for failing to complywith the prescribed time limit, but no later than 12months from the expiry date of the missed deadline.Where a request concerns the reinstatement of apatent due to non-payment of the annualmaintenance-in-force fee, the 12-month period shallcommence from the expiry of the time limit specifiedin Article 59(3).

(3) A request for restoration of rights must bejustified and contain the facts and arguments onwhich it is based.

(4) A request for restoration of rights shall bedeemed to be submitted upon payment of theprescribed fee for restoration of rights.(5) The provisions of this Article shall not beapplicable to the time limits specified in paragraph(2) of this Article, paragraph (3) of Article 12,paragraph (1) of Article 14, in Articles 37 to 39, 49and paragraph (3) of Article 54.

Article 86Right of subsequent use

Any person who, in the period between the loss ofapplication or patent rights and the restoration ofsuch rights, used in good faith or undertook effectiveand essential preparations to use a variety which isthe subject of a published application or enjoyspatent protection, may continue to use it free ofcharge within the framework or for the requirementsof his business, without exceeding the existingscope of use.

Article 87Representation

(1) Applying the provisions of Part (2), nobody shallbe obliged to have a representative for the conductof business with the Agency in proceduresprescribed by this Law.

(2) Natural or legal persons who are not domiciledor do not have a place of business in the Republicof Moldova, or likewise an industrial or commercialenterprise operating in the Republic of Moldova,must be represented by a patent attorney in orderto conduct business with the Agency, with theexception of the following activities:

(a) filing of a patent application;

(b) payment of fees;

(c) filing of a previous application.

(1) Natural or legal persons who are domiciled orhave a place of business in the Republic of Moldova,or an industrial or commercial enterprise operatingin the Republic of Moldova, may be represented atthe Agency by their own employees.



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(2) Representation shall be conducted through apower of attorney provided to the Agency, under theconditions and within the time limits prescribed bythe Regulations.

(3) Patent attorneys shall conduct their activities inaccordance with regulations approved by theGovernment.

Article 88Examination at the Agency’s initiative

(1) Whilst carrying out procedures, the Agency may,on its own initiative, resort to studying facts to theextent that they are the subject of the examinationsspecified in Articles 45 and 46.

(2) The Agency shall not be obliged to take intoaccount facts which have not been requested, orevidence which has not been provided within theprescribed time limit.

Article 89Oral procedure

(1) An oral procedure shall be conducted at theAgency’s initiative or upon the request of one of theparties to the procedure.

(2) Without affecting the provisions of paragraph (3),an oral procedure conducted at the Agency shallnot be public.

(3) An oral procedure conducted at the Board ofAppeals, and in particular publication of the decision,shall be public, with the exception of decisionswhose publication might inflict serious andunjustified losses, especially on one of the partiesto the procedure.

Article 90Gathering evidence

(1) In carrying out any procedure under theauspices of the Agency, State Commission, or thecourts, the following measures may be undertakenfor the collection of evidence:

(a) hearing of the parties;

(b) request for information;

(c) provision of documents and other evidence;

(d) hearing of witnesses;

(e) examination;

(f) visiting the place of business;

(g) written declarations under oath.

(2) Where the Agency, State Commission or courtconsiders it necessary that a party to the procedure,witness or specialist give an oral testimony:

(a) the person shall be invited to the appropriateauthority;

(b) a request to obtain testimonies from theappropriate person shall be submitted to the courtor other competent authority.

(3) A party to the procedure, witness or specialistwho has been invited to the Agency, StateCommission or court, may request approval to beheard by a competent authority. After receiving sucha request, or where the person fails to appear, theAgency, State Commission or court may requestbefore the competent authority to receive thetestimony of said person.

(4) Where a party to the procedure, witness orspecialist gives evidence to the Agency, StateCommission or court, the relevant person mayrequest before the competent authority to be heardunder appropriate conditions.

Article 91Suspension of procedure in court

(1) Where the matter in court concerns establishingwhich person has the right to obtain a patent, andwhere the decision depends upon an assessmentof the patentability of the variety according to Article6, then such a decision may only be taken after theAgency has taken a decision as to the patentabilityof the variety in accordance with the patentapplication.

(2) Where the matter in court concerns a patent thathas already been granted, in relation to which acancellation or loss of rights procedure has been


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applied, the procedure may be suspended to theextent that the decision is dependent upon thevalidity of the patent.

Article 92Fees

(1) In accordance with regulations ratified by theGovernment, the Agency shall levy fees for theperformance of legal acts, and also annual fees forthe maintenance in force of the patent during itsterm of validity.

(2) In the case of non-payment of fees prescribedfor the performance of other acts only on the requestof an interested party, the application shall not bedeemed to be filed where the fee has not been paidwithin the time limit specified in the Agency’snotification, by means of which the person wasinvited to pay the fee and was warned about theconsequences of non-payment.

(3) Where certain information provided by theapplicant may only be verified by means of carryingout a technical examination, the cost of whichexceeds the prescribed payment, an additionalcharge shall be levied in respect of the technicalexamination.(4) Fees shall be paid by the applicant, patent owner,and also by other interested natural or legal persons.

Article 93Protection and testing of varieties abroad

(2) Natural and legal persons from the Republic ofMoldova shall have the right to choose in which Stateto submit the initial filing of the patent application.

(3) The applicant shall be entitled to apply to otherUPOV member States for the grant of a plant varietypatent, without having to wait for the grant of thepatent for said variety by an authority of the State inwhich the initial application was filed.

(4) The variety for which protection is sought in theRepublic of Moldova may be tested in another Statewhere a corresponding bilateral or internationaltreaty has been concluded with that State.

(5) An applicant who has filed his first application inanother State shall be required to provideinformation on the testing carried out in compliancewith the requirements for variety protection in thatState.

(6) The cost of protecting a variety abroad shall beborne by the applicant.

Article 94Competencies in examination of disputes

(1) The Agency’s Board of Appeals shall examinedisputes concerning:

(a) grant of a patent or rejection of a patentapplication;

(b) recognition of right of priority;

(c) withdrawal of the patent application or refusal ofthe patent.

(2) The work of the Board of Appeals shall begoverned by the Regulations on the work of theAgency’s Board of Appeals, as ratified by theGovernment.

(3) The Cisinãu Chamber of Appeals shall examinedisputes:

(a) regarding the establishment of the breeder;

(b) concerning the establishment of the personentitled to obtain a patent;

(c) regarding the grant of a license for a patentapplication or patent;

(d) in relation to actions concerning the right ofsubsequent use;

(e) between an enterprise and an employee relatingto actions affecting patent rights;

(f) relating to actions concerning the infringementof a patent application or a patent, and instructionson appropriate measures;

(g) regarding the cancellation of the patent;



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(h) regarding the examination in a court of firstinstance of objections to decisions of the Board ofAppeals.

Article 95Use of varieties for production purposes

Plant varieties shall be used for production purposesonly after said varieties are tested for agronomicalvalue and entered in the Register of Plant Varieties.Varieties of genetically modified plants shall be usedfor production purposes only after obtaining approvalfor their introduction into the environment, grantedwhere necessary by a national competent authorityin compliance with biological safety legislation.

Article 96National policy

Foreign natural and legal persons from UPOVmember States shall enjoy rights granted by thisLaw on an equal footing with natural and legalpersons from the Republic of Moldova. Theprovisions of this Law shall be applicable both inthe case of bilateral agreements and on the basisof the principle of reciprocity.

Chapter IXFINAL AND TRANSITIONAL PROVISIONS

Article 97Entry into force

This Law shall enter into force three months fromits publication date in the Official Monitor of theRepublic of Moldova, with the exception of Articles73, 74, 75 and 76, which shall come into effect atthe same time as the entry into force of thecorresponding changes entered in the Code of CivilProcedure.

From the date of entry into force of this Law, theLaw on Protection of Plant Varieties No.915-XIII ofJuly 11, 1996, as amended, shall be recognized assuperseded.

It shall be established that:

(a) patent applications, the procedure for theexamination of which shall not be complete untilthe date of entry into force of this Law, shall beexamined in the order prescribed by this Law;

(b) patents for varieties of plants relating to botanicalgenera and species protected on the territory of theRepublic of Moldova under the Law on Protectionof Plant Varieties No.915-XIII of July 11, 1996,granted prior to the entry into force of this Law, shallbe equivalent in legal terms to patents granted inaccordance with this Law.

Article 98Organization of enforcement

In the three-month period from the date of entryinto force of this Law, the Government shall:

(a) present Parliament with proposals on bringingcurrent legislation into line with this Law;

(b) bring its normative acts into line with this Law.

CHAIRMAN OF PARLIAMENTMarian Lupu

Cisinãu, February 29, 2008.No.39-XVI.

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NETHERLANDS

ACT OF 19 FEBRUARY 2005, CONTAINING NEW REGULATIONS GOVERNINGTHE APPROVAL OF VARIETIES OF PLANTS, THE MARKETING OF PROPAGATING

MATERIAL, AND THE GRANTING OF BREEDER'S RIGHTS(SEEDS AND PLANTING MATERIALS ACT, 2005)*

* Translation provided by the Dutch Authorities. This Act replaces the Seeds and Planting Material Act.The Law entered into force on February 1, 2006.

Netherlands The Seeds and Planting Material Act 2005

Bulletin of Acts, Orders, and Decrees of theKingdom of the Netherlands

Year 2005

184

Act of 19 February 2005, containing new regulationsgoverning the approval of varieties of plants, themarketing of propagating material, and the grantingof breeder’s rights (Seeds and Planting MaterialsAct [Zaaizaad- en plantgoedwet] 2005)

We Beatrix, by the Grace of God, Queen of theNetherlands, Princess of Orange-Nassau, etc., etc.,etc.

To all who shall see or hear these presents, greeting!Be it known:

Having regard to the necessity of imposing newregulations for the approval of varieties of plants,the marketing of propagating material, and thegranting of breeder’s rights; to the InternationalConvention for the Protection of New Varieties ofPlants, signed in Paris on 2 December 1961 (TreatySeries of the Kingdom of the Netherlands[Tractatenblad] 1962,117), as most recentlyamended by an instrument of 19 March 1991(Treaty Series 1992, 52); and to the variousEuropean directives on the marketing of propagatingmaterial of various species of plants;

We, therefore, having heard the Council of State,and in consultation with the States General, haveapproved and decreed, as We herby approve anddecree, the following:

CHAPTER 1. DEFINITION OF TERMS

Section 1

For the purposes of this Act and the provisionsbased upon it, the following terms shall beunderstood to have the meanings assigned to thembelow:

a. Our Minister: Our Minister of Agriculture, Nature,and Food Quality

b. the Board: the Plant Varieties Board [Raad voorplantenrassen] referred to in Section 2;

c. variety: a group of plants within a single botanicaltaxon of the lowest known rank, which group –regardless of whether it complies fully with theprovisions of the present Act regarding thegranting of a breeder’s right – can be

- defined on the basis of the expression of thecharacteristics resulting from a certain genotypeor a combination of genotypes;

- distinguished from all other plant groups on thebasis of the expression of at least one of thesaid characteristics; and

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

d. the Register of Varieties: the NetherlandsRegister of Varieties referred to in Section 25;

e. stand: a clearly delimited and, as regardscomposition, sufficiently uniform population oftrees;


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f. propagating material: plants and plant partsintended for the cultivation or propagation ofplants or that are used for such purposes;

g. marketing: commercial provision or stocking,displaying or offering for sale, selling, possessingwith a view to sale, and also providing, supplyingor transferring to a third party free of charge;

h. maintainer: a person who ensures that anapproved variety is maintained;

i. supplier: any natural person or legal entity who/that – other than for use on his/its own holding –professionally propagates, produces, holds,processes, treats, imports, or marketspropagating material;

j. breeder: a person who has propagated a varietythrough his own work or has discovered ordeveloped that variety, or that person’s legalsuccessor;

k. Union: the International Union for the Protectionof New Varieties of Plants formed by the statesthat are party to the International Convention forthe Protection of New Varieties of Plants, signedin Paris on 2 December 1961 (Treaty Series1962,117), as most recently amended by aninstrument of 19 March 1991 (Treaty Series1992, 52);

l. Union State: a state that is a member of theUnion;

m. trade directive or regulation: a directive orregulation of the Council of the European Union,or of the European Parliament and the Councilof the European Union jointly, that is wholly orpartly based on Articles 37, 52, 95, 152, or 175of the Treaty Establishing the EuropeanCommunity, that relates to the plants sector andthat sets rules regarding economic activity in thatsector, the interests of customers, the internalmarket, quality, production with a view tomarketing and marketing of propagatingmaterial, the environment, public health,technical requirements, or the provision ofinformation;

n. delegated directive, delegated regulation, ordelegated decision: a directive, regulation, ordecision of the Commission of the European

Communities based on a trade directive orregulation.

CHAPTER 2. PLANT VARIETIES BOARD

Section 2

There shall be a Plant Varieties Board, whose dutiesshall be:

a. to register varieties and stands in the Registerof Varieties pursuant to Chapter 4 of the presentAct;

b. to approve varieties and stands pursuant toChapter 5 of the present Act;

c. to grant breeders’ rights pursuant to Chapter 7of the present Act;

d. to draw up and announce national lists ofapproved varieties and stands pursuant toSection 26; and

e. to approve plant groups and register them in theRegister of Varieties pursuant to Section 85.

Section 3

1. The Board shall consist, including its President,of a minimum of seven and a maximum of elevenmembers, who shall be appointed and dischargedby Our Minister. They shall be appointed on the basisof their expertise in the area of the duties with whichthe Board is charged. Persons who are subordinatesof Our Minister shall not be appointed to the Board.

2. The Board may designate one or more Vice-Presidents from its midst.

3. A Secretary and one or more AssistantSecretaries, to be appointed by Our Minister, shallbe attached to the Board.

4. In order to support it in its work, the Board shallhave an office headed by the Secretary referred toin Subsection 3.

5. One or more departments may be appointedwithin the Board by means of a generaladministrative order [algemene maatregel vanbestuur].

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Section 4

1. The appointment of the President and othermembers shall be for a period of five years.

2. Upon resigning their position, the persons referredto in Subsection 1 shall immediately be eligible forreappointment. They may be reappointed no morethan twice.

3. Our Minister may suspend or prematurelydischarge the persons referred to in Subsection 1because of their being unsuitable or incompetentfor the position they hold or for other serious reasonsregarding their person. The persons concerned mayalso be discharged at their own request.

4. Any of the persons concerned may besuspended or discharged due to serious reasonsregarding his person within the meaning ofSubsection 3:

a. if he is convicted of a criminal offence by meansof a judicial decision that has become final andconclusive or has been sentenced to a term ofimprisonment by means of such decision;

b. if, by means of a judicial decision that hasbecome final and conclusive, he has been placedunder legal guardianship, has been declaredbankrupt or subject to a debt reschedulingarrangement for natural persons, has beengranted a suspension of payments, or has beenimprisoned for debt;

c. if by his action or omission he causes seriousharm to the activities of the Board or toconfidence in the Board; or

d. if he contravenes the confidentiality obligationwithin the meaning of Section 2:5 of the GeneralAdministrative Law Act [Algemene wetbestuursrecht] or acts contrary to Section 5 ofthis Act.

5. A person appointed to replace a member of theBoard whose position has fallen vacant shall resignat the point when the person he has replaced wouldbe required to resign.

6. Our Minister shall allocate remuneration to themembers of the Board.

Section 5

1. The President of the Board, its other members,the Secretary, and the Assistant Secretaries shallnot participate in the consideration of cases in whichthey are in any way personally involved.

2. The President and other members of the Boardshall not hold any other additional positions if suchis undesirable with a view to the proper fulfilment oftheir duties, the maintenance of their independence,or confidence in such independence.

3. The persons referred to in Subsection 2 shallinform Our Minister of their intention to accept anadditional position.

4. Additional positions other than those arising froma Board member’s position as such shall bepublished. Such publication shall be effectuated bya list of additional positions being submitted forperusal by the Board and by Our Minister.

Section 6

1. The costs for the Board shall be borne by thenational budget.

2. Our Minister shall set fees for:

a. processing requests for registration and entry inthe Register of Varieties;

b. processing applications for the approval ofvarieties and stands;

c. processing applications for a breeder’s right;

d. carrying out the technical investigation that isnecessary to assess applications within themeaning of (b) and (c) above;

e. the provision of copies and extracts from theRegister of Varieties;

f. each year that a variety or stand is included inthe Register of Varieties in connection with itsapproval or in connection with the granting of abreeder’s right;

g. the provision of advice within the meaning ofSection 58(4); and


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h. the processing of applications for approval ofplant groups within the meaning of Section 85.

3. The fees referred to in Subsection 2:

a. shall be directly related to the activities referredto in (a) to (h) of Subsection 2 ;

b. shall not amount to more than is necessary tocover the costs incurred due to the variousdifferent activities; and

c. shall be set separately for each plant or for eachcategory of plants to which the activities of theBoard pertain.

4. Specific rules shall be set by ministerialregulation with respect to the imposition andcollection of the said fees and to their periodicalrevision to take account of trends in wages andprices.

5. If payment is not effectuated within the periodset by the Board, the Board shall be empowered tocollect the amount owing, plus the statutory interestand the costs relating to collection, by means of awrit of execution. The writ of execution shall beserved by means of a bailiff’s notification at theexpense of the party that owes the said amount inaccordance with Section 45 ff. of Book 1 of the DutchCode of Civil Procedure [Wetboek van BurgerlijkeRechtsvordering] and shall constitute entitlement toenforcement within the meaning of Section 430 ofBook 2 of the said Code.

6. For a period of six weeks after the date ofservice, it shall be possible to lodge an objection tothe writ of execution by issuing a writ of summonsagainst the State. The lodging of such objection shallsuspend enforcement of the writ of execution. Acourt of law may lift the suspension of enforcementat the request of the State.

7. The Board shall not process any documents orissue any copies or extracts from the Register ofVarieties until the amount owing pursuant to thepresent section has been paid.

Section 7

1. The Board may examine witnesses and expertsin connection with the approval of varieties andstands and the granting of a breeder’s right.

2. Any person who is called by the Board as awitness shall be obliged to comply.3. Sections 191 and 203(2) and (3) of the Code ofCivil Procedure shall apply mutatis mutandis towitnesses.

4. he Board may order that witnesses who, thoughduly summoned, have failed to appear shall bebrought before it by the public authorities.

5. Sections 197 to 199, 203, and 205 of the Codeof Civil Procedure shall apply mutatis mutandis tothe examination of witnesses.

6. Experts shall carry out their task impartially andmake their reports to the best of their knowledge.

Section 8

1. The Board shall adopt administrative regulationsspecifying in any case:

a. the working methods of the Board and thedivision of duties between its members;

b. the summoning of applicants, persons makinga request, and other interested parties, as wellas witnesses and experts;

c. the monetary remuneration to be paid towitnesses and experts.

2. In the said administrative regulations, the Boardmay assign the authority to represent it, both at lawand otherwise, to one or more of its members or tothe Secretary. The Board may provide that suchauthority to represent it shall apply solely to certainspecific matters.

3. In the administrative regulations referred to inSubsection 1, the Board may assign duties andpowers to one or more of its members or to theSecretary.

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4. The said administrative regulations shall requirethe approval of Our Minister. Our Minister mayrefuse such approval if he considers that there is aconflict with the law or on the grounds that hebelieves that the said regulations impede the properfulfilment of the tasks of the Board.

Section 9

1. Before 1 July of each year, the Board shall drawup an annual report on its work and general policy,and specifically on the efficiency and effectivenessof its work and working methods during the previouscalendar year.

2. The said annual report shall be submitted to OurMinister and to both houses of the States Generaland shall be made public.

Section 10

1. As regards the exercise of its tasks and powers,the Board shall ensure:

a. timely preparation and implementation;

b. the quality of the procedures adopted;

c. the careful treatment of persons and institutionscoming into contact with it;

d. the careful treatment of any objections orcomplaints that it may receive.

2. The Board shall make provisions allowingpersons and institutions coming into contact with itto make proposals for improvements in its workingmethods and procedures.

3. In the annual report referred to in Section 9, theBoard shall report on what it has undertaken toimplement Subsections 1 and 2.

Section 11

1. The Board shall provide Our Minister, on request,with the information required for him to perform histask. Our Minister may require that he be enabledto inspect business data and records insofar as suchis necessary for him to perform his task.

2. In providing the information referred to inSubsection 1, the Board shall if necessary indicatewhich information is of a confidential nature. Theconfidentiality of the said information may arise fromthe nature of the information or from the fact thatnatural persons or legal entities provided thatinformation to the relevant body on condition that itshould be classed as confidential.

Section 12

1. Our Minister may adopt guidelines regarding thefulfilment of the Board’s tasks.2. The said guidelines shall be published in theGovernment Gazette [Staatscourant].

Section 13

1. Our Minister shall be empowered to nullify adecision adopted by the Board.

2. Such nullification shall be announced in theGovernment Gazette.

Section 14

1. Should Our Minister consider that the Board isseriously neglecting its task, he shall be empoweredto take the necessary measures.

2. Except for urgent cases, the said measures shallnot be taken until the Board has been given theopportunity to carry out its task properly within aperiod to be determined by Our Minister.

3. Our Minister shall immediately inform bothhouses of the States General of measures he hastaken within the meaning of Subsection 1.

Section 15

Before 1 April of each year, the Board shall submitan annual draft budget for the following year to OurMinister.


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Section 16

If significant differences arise or seem likely to arisein the course of the year between the actual andbudgeted revenue and charges, or income andexpenditure, the Board shall immediately inform OurMinister, stating the reasons for the said differences.

Section 17

Pursuant to the relevant civil service regulations,the Board shall ensure that the necessary technicaland organisational facilities are in place to ensurethe security of its data against loss or damage, andagainst unauthorised perusal, alteration, ordisclosure.

Section 18

Within four years of this Act entering into force, andsubsequently every four years, Our Minister shallprovide both houses of the States General with areport regarding the efficiency and effectiveness ofthe manner in which the Board operates.

CHAPTER 3.TESTING INSTITUTIONS

Section 19

1. By means of a general administrative order, oneor more legal entities under private law, with fullstatutory powers, shall be charged with the task oftesting propagating material and issuing supportingdocumentation or distinguishing marks to implementthe provisions of or pursuant to Chapter 6 of thepresent Act.

2. The testing referred to in Subsection 1 shall beintended to determine whether propagating materialcomplies with the rules of or pursuant to Chapter 6of the present Act, including by studying thepropagating material or its origin by means ofsampling and the performance of tests.

3. By means of a general administrative order withinthe meaning of Subsection 1, a testing institutionappointed pursuant to that subsection may also becharged with the task of recognising or registeringsuppliers, as referred to in Section 42.

Section 20

1. A testing institution designated pursuant toSection 19 shall not operate in the pursuit of profit.

2. The said testing institution shall adopt regulationsspecifying the manner in which testing will be carriedout and the manner in which it will issue supportingdocumentation and distinguishing marks. The saidregulations shall require the approval of OurMinister. Our Minister may refuse such approval ifhe considers that there is a conflict with the law oron the grounds that he believes that the saidregulations impede the proper fulfilment of the tasksof the testing institution.

Section 21

1. Insofar as the costs incurred by a testinginstitution relate to the statutory tasks within themeaning of Section 19, they shall be covered bythe fees to be determined and charged by the testinginstitution for:

a. granting consent within the meaning of Section39(6);

b. carrying out testing within the meaning of Section40;

c. issuing supporting documentation anddistinguishing marks within the meaning ofSection 41;

d. processing applications for recognition orregistration of suppliers within the meaning ofSection 42, or processing applications forrenewal or alteration of such recognition orregistration;

e. maintaining a recognition or registration withinthe meaning of (d); and

f. the provision of information within the meaning ofSection 64.

2. The fees referred to in Subsection 1 shall requirethe prior approval of Our Minister. Our Minister mayrefuse such approval if he considers that there is aconflict with the law or the public interest.

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3. The fees referred to in Subsection 1:

a. shall relate directly to the activities referred to inthat subsection

b. shall not amount to more than is necessary tocover the costs incurred due to the variousdifferent activities; and

c. shall be set separately for each plant or for eachcategory of plants to which the activities of thetesting institution pertain.

4. Specific rules shall be set by ministerial regulationwith respect to the imposition and collection of thesaid fees and to their periodical revision to takeaccount of trends in wages and prices.

5. If payment is not effectuated within the periodset by the testing institution, the testing institutionshall be empowered to collect the amount owing,plus the statutory interest and the costs relating tocollection, by means of a writ of execution. The writof execution shall be served by means of a bailiff’snotification at the expense of the party that owesthe said amount in accordance with Section 45 ff.of Book 1 of the Code of Civil Procedure and shallconstitute entitlement to enforcement within themeaning of Section 430 of Book 2 of the said Code.

6. For a period of six weeks after the date of service,it shall be possible to lodge an objection to the writof execution by issuing a writ of summons againstthe legal entity to which the testing institutionbelongs. The lodging of such objection shallsuspend enforcement of the writ of execution. Thecourt may lift the suspension of enforcement at therequest of the said legal entity.

7. The testing institution shall not carry out activitieswithin the meaning of Subsection 1, or shall ceasesuch activities, if the fee payable pursuant to thissection is not paid.

Section 22

1. Amendments to the articles of a testing institutiondesignated pursuant to Section 19 shall require theconsent of Our Minister before taking effect. OurMinister shall ensure that the said articles arepublished in the Government Gazette.

2. The appointment and discharge of the Presidentof a testing institution shall require the prior consentof Our Minister.

Section 23

The testing institution shall keep separate accountsin respect of the tasks assigned to it by or pursuantto the present Act and in respect of work arisingdirectly from those tasks, and shall accountseparately for those tasks and that work in its annualaccounts.

Section 24

Sections 9 to 14 and Sections 17 and 18 shall applymutatis mutandis.

CHAPTER 4.THE REGISTER OF VARIETIES

Section 25

1. There shall be a Netherlands Register of Varietiesfor the registration of varieties and stands. The saidregister shall be public.

2. The following shall be registered in the Registerof Varieties:

a. varieties and stands that have been approvedpursuant to Chapter 5 of the present Act;

b. varieties for which a breeder’s right has beengranted pursuant to Chapter 7 of the presentAct;

c. plant groups within the meaning of Section 85.

3. Registration shall be effectuated by the Boardrecording the description characterising the varietyadopted by the Board and, insofar as a variety isconcerned, the denomination adopted by the Board.

4. The registered denomination shall be deemed tobe the generic designation.

5. By or pursuant to a general administrative order,rules shall be laid down regarding the structure ofthe Register of Varieties and the information to begiven when varieties, stands, and plant groups within


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the meaning of Subsection 2 are registered. Theinformation referred to in the first sentence of thisSubsection shall in any case comprise:

a. a record of the technical investigation carried outin order for a variety or stand to be approved orfor a breeder’s right to be granted, within themeaning of Section 35(1)(a, b, and c) or Section49(7);

b. where approved varieties are concerned: arecord of the maintainer or maintainers;

c. where stands are concerned: a record of theowner or manager and the growing location ofthe stand.

Section 26

1. In order to implement binding decisions of theCouncil of the European Union, of the EuropeanParliament and the Council of the European Unionjointly, or of the Commission of the EuropeanCommunities, the Board shall draw up national listsof the varieties and stands of a plant that have beenapproved in the Netherlands, doing so on the basisof the information contained in the Register ofVarieties.

2. The establishment of a national list within themeaning of Subsection 1 shall be announced in theGovernment Gazette.

Section 27

1. The denomination referred to in Section 25(3)shall be suitable to identify the variety to which itapplies.

2. The denomination shall differ, specifically:

a. if a variety is concerned for which a breeder’sright has been granted: from any denominationused in any Union State to refer to an existingvariety of the same or a related plant;

b. where other varieties are concerned: from anydenomination used in any Member State of theEuropean Union, or in another state that is a partyto the Agreement on the European EconomicArea, to refer to an existing variety of the sameor a related plant.

3. The denomination shall not be contrary to publicorder or be offensive.

4. The denomination shall be the same as thatalready registered for the variety in any Union State,or in any Member State or other state that is a partyto the Agreement on the European Economic Area,provided that that denomination is suitable for usein the Netherlands.

5. No denomination shall be adopted that so closelyresembles a trade name or trademark that using itmight give rise to confusion regarding the nature ororigin of goods.

6. More detailed rules regarding denominations shallbe laid down by ministerial regulation in order toimplement a binding decision of the Council of theEuropean Union, of the European Parliament andthe Council jointly, or of the Commission of theEuropean Communities. In drawing up the rulesreferred to in the first sentence of this subsection,account shall also be taken of the recommendationsadopted by the Council of the European Unionregarding the nomenclature for varieties for whicha breeder’s right has been granted.

Section 28

1. Before adopting a denomination, the Board shallannounce its intention to do so in the GovernmentGazette.

2. Within eight weeks after the announcementreferred to in Subsection 1, an interested party maysubmit objections to the denomination pursuant toSection 27(5).

3. The Board shall not adopt a denomination beforeit has decided on the objections referred to inSubsection 2.

4. The Netherlands Industrial Property Office[Bureau voor de Industriële Eigendom] shall providethe Board, on request, with information regardingtrademarks that are registered with it.

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Section 29

1. When applying for the granting of a breeder’sright or for the approval of a variety, the applicantshall also submit a proposal for the denominationof the variety.

2. The applicant may also restrict itself to proposinga provisional denomination. In that case, theapplicant shall be obliged to submit a proposal for adefinitive denomination at a time to be specified bythe Board.

3. The proposal for the denomination shall beaccompanied by a deed stating that if the proposeddenomination is registered, the applicantrelinquishes the rights that may accrue to him inany Union State or in any Member State of theEuropean Union, or another state that is a party tothe Agreement on the European Economic Area, inrespect of the same or similar goods.

4. The Board shall adopt the proposeddenomination, or the denomination within themeaning of Section 27(4), unless it considers thatdoing so would be contrary to the provisions ofSection 27. In that event, the Board shall give theapplicant the opportunity to propose a differentdenomination.

5. The Board shall provide the Netherlands IndustrialProperty Office and the Office of the Union, onrequest, with information regarding thedenominations that are registered with it.

Section 30

1. If the use of a registered denomination forpropagating material of the variety for which thishas been registered is prohibited by a judicialdecision on the grounds of a right accruing toanother party in respect of that denomination, theBoard, at the request of any of the partiesconcerned, shall delete the registered denominationand register a provisional denomination, doing soin consultation with the party that has an interest inthe approval of a variety or with the holder of thebreeder’s right.

2. The Board shall adopt an amended denominationafter giving the party that has an interest in theapproval of a variety or the holder of the breeder’s

right the opportunity to propose a differentdenomination within a set period of time, and shallthen register the amended denomination. Section28 shall apply mutatis mutandis.

3. Should it be established that a variety cannot beincluded under the registered denomination in acommon list of varieties for the plant to which thevariety belongs that has been adopted by theCommission of the European Communities, theBoard, upon receiving a request to that effect fromthe holder of the breeder’s right or from the partythat requested that the variety be approved, shalldelete a registered denomination and register aprovisional denomination. Subsection 2 shall applymutatis mutandis.

Section 31

1. The Board may establish and register aprovisional description characterising the variety.

2. The Board may add to the description referred toin Subsection 1 and shall register such addition:

a. at the request of the applicant;

b. ex officio, if such is necessary in connection withthe description of another variety, in which casethe party that has an interest in the approval of avariety or the holder of the breeder’s right shallbe heard, or for other reasons, but then only inagreement with the persons referred to above.

Section 32

Subject to the provisions of Section 3:41 of theGeneral Administrative Law Act, decisions of theBoard pursuant to the present chapter shall beannounced to the interested party referred to inSection 28, to the party that has an interest in theapproval of a variety pursuant to Sections 30 and31, and to the holder of the breeder’s right referredto in Sections 30 and 31.

Section 33

The applications and requests referred to in thischapter and in Chapters 5 and 7, and the withdrawalor refusal of such applications and requests, shall


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be recorded in the Register of Varieties, with anannouncement being made in the GovernmentGazette.

Section 34

Registrations and entries within the meaning of thepresent chapter and Chapters 5 and 7 pursuant todecisions that are the subject of an appeal shall beeffectuated as soon as a ruling has been given onany appeal or the period for lodging an appeal hasexpired without such appeal being lodged, or assoon as the appeal has been withdrawn by meansof written notification to that effect submitted to theBoard.

CHAPTER 5.APPROVAL OF VARIETIES AND STANDS

Section 35

1. Rules may be set by or pursuant to a generaladministrative order regarding the approval ofvarieties and stands; the said rules may differ fromone plant to another. The said rules may in any caseconcern:

a. the requirement that it be established, on the basisof a technical investigation, whether a variety isdistinct, uniform, and stable;

b. the requirement that it be established, on the basisof a technical investigation, whether a variety hassufficient cultivation and utility value;

c. the requirement that it be established, on thebasis of a technical investigation, whether astand for silvicultural purposes complies withconditions to be set by or pursuant to the generaladministrative order referred to in the openingwords of this section regarding the productionof categories of propagating material asdesignated by the said order;

d. the features covered by the technicalinvestigation within the meaning of (a), (b), and(c) and the requirements for that investigation;and

e. further requirements for approval and theconditions under which, and cases in which,approval can be amended or withdrawn by theBoard.

2. A variety shall be considered distinct if it can beclearly distinguished from any other variety whoseexistence is a matter of common knowledge at thepoint when the application is submitted. A varietyshall be considered to be a matter of commonknowledge if, at the point when application is madefor approval of a variety that is to be assessed, it isincluded either in a common list of varieties adoptedon the instructions of the Commission of theEuropean Communities or has been approved, oris the subject of an application for approval, in aMember State of the European Union.

3. A variety shall be considered uniform if,disregarding the variation that may be expected fromthe particular features of its propagation, it issufficiently uniform as regards its significantcharacteristics.

4. A variety shall be considered stable if its significantcharacteristics remain unchanged after repeatedpropagation or, in the case of a particular cycle ofpropagation, at the end of each cycle.

5. A variety shall be deemed to have sufficientcultivation and utility value if, when compared toother varieties approved in the Netherlands, the sumtotal of its qualities, at least as regards productionin a particular area, constitutes a clear improvementfor either the propagation or the valorisation of theharvest or of the products derived from it. A lowerlevel of certain characteristics may be compensatedfor by other favourable characteristics.

6. The technical investigation referred to in (a), (b),and (c) of Subsection 1 shall be carried out at theresponsibility of the Board. By or pursuant to theorder referred to in Subsection 1, rules may be setfor cases in which the conditions under which theBoard, for the purposes of the technical investigationof a variety, may make use of existing investigationreports regarding that variety or of the results ofinvestigations carried out by the applicant itself andpractical experience gained during cultivation.

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Section 36

1. The Board shall decide, on application, regardingthe approval of a variety or stand.

2. An application for approval of a variety shallcomprise the following information:

a. a proposal for the denomination of the varietywithin the meaning of Section 29;

b. a description characterising the variety; and

c. a precise account of the characteristics by whichthe variety is distinguished from other varietiesof the same plant.

3. If the Board so requires, a sufficient quantity ofmaterial of the variety to which the application relatesshall be provided to the Board for the purposes ofthe technical investigation within the meaning ofSection 35(1)(a and b), in accordance withrequirements to be set by the Board.

4. The application for approval of a stand shallcontain a record of the owner or manager of thestand, the location of the stand, and a descriptioncharacterising the stand.

Section 37

1. An approved variety or stand shall be registeredin the Register of Varieties, with a record beingmade, simultaneously with the registration of thevariety or stand, of the approval and of themaintainer/maintainers or the owner or manager ofthe stand designated pursuant to Section 39(3).

2. The said approval shall be dated and shall takeeffect on the day immediately following that on whichthe registration and entry in the Register of Varietieswithin the meaning of Subsection 1 took place.

3. The Board shall ensure that an approved varietythat is not clearly distinguishable from:

a. a variety previously approved in the Netherlandsor another Member State; or

b. another variety that has been assessed inrespect of its distinctiveness, uniformity, andstability according to rules agreeing with those

set pursuant to Section 35 but without being avariety that is a matter of common knowledgewithin the meaning of Section 35(2), shall bearthe denomination of the variety concerned.

4. Subsection 3 shall not apply if the denominationreferred to in that subsection is misleading or maybe confusing as regards the variety or if other factsprevent its use, or if a third-party right prevents thefree use of that denomination for the varietyconcerned.

Section 38

1. The approval of a variety or stand shall lapse byoperation of law if the fee referred to in Section6(2)(f) remains unpaid six months after it becamedue. Such lapse of approval shall be recorded inthe Register of Varieties.

2. If payment has not been effectuated withinfourteen days after the date on which the approvallapsed, the party that is the maintainer of the varietyaccording to the Register of Varieties, or theapplicant for approval of a stand, shall receive areminder of its obligation to pay from the Board byregistered letter.

CHAPTER 6MARKETING OF PROPAGATING MATERIAL

Section 39

1. Rules may be set by or pursuant to a generaladministrative order in respect of plants designatedby such order regarding the marketing ofpropagating material of the varieties or stands thatbelong to those plants. Such rules may include, forexample:

a. the condition that propagating material may onlybe marketed if it derives from a variety or a standthat has been approved and has been registeredin the Register of Varieties or is included in acommon list of varieties or stands adopted onthe instructions of the Commission of theEuropean Communities;

b. the condition that only certain categories ofpropagating material may be marketed;


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c. the condition that certain categories ofpropagating material may only be marketed bythe holder of the breeder’s right to the varietyconcerned or, if no breeder’s right exists inrespect of the variety, by the maintainers of thevariety registered with the Board.

2. By or pursuant to the order referred to inSubsection 1, rules may also be set regarding:

a. supervision of the maintenance and marketingof propagating material of a variety that is nolonger maintained;

b. marketing with a view to export beyond theterritory of the European Union of propagatingmaterial of varieties and stands that do notcomply with the conditions set out in Sub-section 1(a).

3. The registration of maintainers within the meaningof Subsection 1(c) shall be carried out by the Boardon the instructions of the testing institution. If this isnecessary for reasons of propagation technology,the Board shall designate a single maintainer. Thelatter shall be obliged, on conditions set by theBoard, to provide other parties that have requestedit with material suitable for producing propagatingmaterial.

4. In respect of plants for the marketing of whichrules have been drawn up by a binding decision ofthe Council of the European Union, of the EuropeanParliament and the Council jointly, or of theCommission of the European Communities, thatapply, pursuant to the Agreement on the EuropeanEconomic Area, to the whole territory of theEuropean Economic Area, Subsection 1(a) andSubsection 2(b) shall apply mutatis mutandis to theterritory of the European Economic Area.

5. In deviation from the rules pursuant to Subsection1, it shall be permissible to market small quantitiesof propagating material for scientific or breedingpurposes.

6. In deviation from the rules pursuant to Subsection1, a testing institution, on request, may grant consenteither for the marketing of propagating material fora given period or for the marketing of quantities ofpropagating material suitable for research andtesting purposes or for maintaining genetic diversity,

insofar as the propagating material concerned is ofa variety or stand for which an application forapproval has been submitted in at least one MemberState of the European Union.

7. The conditions under which consent within themeaning of Subsection 6 may be granted and thequantities within the meaning of that subsection shallbe set by ministerial regulation.

Section 40

1. Propagating material shall not be marketed if ithas not been determined on the basis of testingthat it complies with the rules regarding the qualityof propagating material set by or pursuant to ageneral administrative order.

2. The rules referred to in Subsection 1 may relateto:

a. the trueness to type, health, viability, dimensions,and purity of the propagating material;

b. the sorting, classification, treatment, packaging,shipping, and designation or labelling of thepropagating material insofar as these relate tothe matters referred to in (a);

c. the technical organisation and administration ofthe enterprise and its technical operations; and

d. the manner of testing the propagating material.

Section 41

1. If rules have been set by or pursuant to a generaladministrative order within the meaning of Section40 regarding the testing of propagating material,supporting documentation and distinguishing marksmay be specified as being exclusively intended forattachment, by or on behalf of the authorised party,to the propagating material or its packaging, or forinclusion with the propagating material.

2. Rules may also be set by or pursuant to an orderwithin the meaning of Section 40 regarding theissuing, preparation, having available, stocking, andusing supporting documentation and distinguishingmarks as well as printing plates, stamps, and othertools for creating or applying supportingdocumentation and distinguishing marks.

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Section 42

1. Suppliers shall be prohibited from marketingpropagating material of plants designated by OurMinister without the relevant recognition orregistration by a testing institution.

2. Recognition or registration shall only be valid fora period set when it is effectuated for the specifiedactivities in respect of propagating material ofspecified plants.

3. The testing institution may attach conditions orregulations to recognition or registration.Recognition or registration may be granted or beeffectuated subject to restrictions.

4. Subsection 1 shall not apply to suppliers who onlysell or supply to persons who do not concernthemselves professionally with the production ofplants or the marketing of propagating material.

Section 43

1. Recognition or registration within the meaning ofSection 42 shall be granted or effectuated onrequest if the requirements set by or pursuant to ageneral administrative order have been met.

2. The requirements referred to in Subsection 1 may,for example, relate to:

a. the technical organisation of the enterprise;

b. the production process and storage;

c. documentation regarding the productionprocess, storage, and delivery; and

d. arrangements regarding supervision ofcompliance with the provisions of or pursuant to thepresent Act.

Section 44

Rules shall be set by ministerial regulation regardingthe submission of an application for recognition orregistration, or for the renewal or alteration of suchrecognition or registration and regarding the mannerof dealing with such. The following may, for example,be specified:

a. the data and documents that must be submittedbefore an application can be dealt with;

b. the period within which application can be madefor an amendment to the recognition orregistration after alteration of the informationwithin the meaning of (a) above.

Section 45

Recognition or registration within the meaning ofSection 42 may be suspended, withdrawn, orcancelled by the testing institution if:

a. the activities for which the recognition wasgranted or registration was effectuated are nolonger carried out; or

b. the requirements within the meaning of Section43 are no longer complied with, even though theholder of the recognition or registration has beengiven a reasonable period in which to make thenecessary changes.

Section 46

1. Without prejudice to the right to use a trade nameor a trademark, propagating material of a varietyincluded in the Register of Varieties by or pursuantto the provisions of the present Act shall bemarketed solely under the registered denomination.

2. If the denomination prescribed for a variety in adifferent country differs from that registered in theNetherlands, propagating material of that varietyshall only be exported to that country under thedenomination prescribed in that country.

3. In deviation from Subsection 1, propagatingmaterial of a registered variety shall be exportedunder a denomination that is usual in the country towhich it is imported:

a. to other Union States, insofar as a breeder’s righthas been granted for the variety concerned; or

b. to states other than one of the Member States ofthe European Union or another state that is aparty to the Agreement on the EuropeanEconomic Area, insofar as no breeder’s right hasbeen granted for the variety concerned.


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4. The registered denomination or a similar wordshall not be used for other propagating material ofthe same or a related plant.

Section 47

1. The testing institution shall ensure thatpropagating material that fails to comply with therules set out in the present chapter is withdrawnfrom the market. To that end, the testing institutionshall oblige the offender, in writing, to withdraw thedefective propagating material from the marketwithin a period set by the testing institution, or tostore or destroy it.

2. If an offender fails to take the measures referredto in Subsection 1 within the period referred to inthat subsection, the testing institution shall beempowered to take any necessary measures itselfat the expense of the offender.

3. The testing institution shall be empowered tocollect the amount owed by the offender, plus thestatutory interest and the costs relating to collection,by means of a writ of execution. The provisions ofSection 21(5)(second sentence) and (6), shall applymutatis mutandis.

Section 48

1. Our Minister may grant dispensation or exemptionin respect of the provisions of or pursuant to thepresent chapter.

2. Such dispensation or exemption shall only begranted:

a. in order to provide the market with sufficientpropagating material of plants whosepropagation is important; or

b. to enable temporary experiments to be carriedout.

3. Such dispensation or exemption may be subjectto conditions.

CHAPTER 7.BREEDER’S RIGHT

Part 1Entitlement to the granting of a breeder’s right

Section 49

1. A breeder’s right may be granted for varieties ofall plants belonging to the plant kingdom insofar asthe varieties concerned are new, distinguishable,uniform, and stable.

2. A variety shall be deemed to be new if, at thedate of submission of the application for a breeder’sright, no propagating material or harvested materialof the variety has been sold or otherwise providedto others by or with the consent of the breeder, forpurposes of exploitation of the variety for a period:

a. in the Netherlands: no more than one year priorto the point referred to in the opening words;

b. outside the Netherlands: either no more than fouryears or, in the case of trees or vines, no morethan six years before the point referred to in theopening words.

3. For the application of Subsection 2, the fact thatmaterial of a variety has already been provided toother parties for testing shall not be relied uponagainst the breeder of that variety or his legalsuccessors.

4. A variety shall be deemed to be distinct if it isclearly distinguishable from any other variety whoseexistence is a matter of common knowledge at thetime of the submission of the application. A varietyshall in any case be considered to be a matter ofcommon knowledge if an application for the grantingof a breeder’s right or for the entering of that varietyin an official register of varieties has been submitted,in any country, from the date of the application,provided that the application leads or has led to thegranting of a breeder’s right or to the registering ofthe said other variety in the said register of varieties.

5. A variety shall be deemed to be uniform if itcomplies with the provisions of Section 35(3).

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6. A variety shall be deemed to be stable if it complieswith the provisions of Section 35(4).

7. In order to determine whether a variety complieswith the conditions set out in Subsections 4 to 6, atechnical investigation shall be carried out at theresponsibility of the Board. The features that thesaid investigation covers and the requirements withwhich it must comply shall be set by ministerialregulation. In the said ministerial regulation, rulesmay be set for the cases in which, and the conditionsunder which, the Board, for the purposes of thetechnical investigation of a variety, may make useof existing investigation reports regarding that varietyor of the results of investigations carried out by theapplicant itself and practical experience gainedduring cultivation.

Section 50

1. Entitlement to the granting of a breeder’s rightshall accrue solely to the breeder.

2. If the variety was bred, or discovered anddeveloped, outside the Netherlands, either by anatural person who does not hold Dutch nationalityor by a legal entity without a registered office in theNetherlands, there shall only be an equivalententitlement to the granting of a breeder’s right insofaras the Netherlands is obliged by an internationalagreement to grant a breeder’s right.

3. If a variety has been bred, or discovered anddeveloped, outside the Netherlands but theNetherlands is not subject to an obligation withinthe meaning of Subsection 2, a breeder’s right maybe granted for the variety if it is a variety for which abreeder’s right may be granted both in the countrywhere the variety was bred and in the Netherlands.

Section 51

1. If the breeder has bred a variety, or hasdiscovered and developed it, in the context of anemployment relationship or in the context of anagreement to provide services for another partyotherwise than in return for wages and thatemployment relationship or agreement provides thatthe breeder perform breeding or development workin respect of the plant to which the variety belongs,the entitlement to the granting of a breeder’s right

shall accrue, in deviation from Section 50, to theemployer or the client or to the employer’s or client’slegal successor.

2. In a case within the meaning of Subsection 1,the breeder shall be entitled to reasonableremuneration unless such remuneration can alreadybe deemed to be included in his wages or in thebenefits he enjoys.

3. Any stipulation that provides for a departure fromSubsection 2 shall be null and void.

Section 52

If two or more persons, otherwise than in the casereferred to in Section 53, have collaborated inbreeding or discovering and developing a newvariety, they shall be jointly entitled to the grantingof a breeder’s right.

Section 53

If, pursuant to Section 52, two or more persons maybe individually entitled to the granting of a breeder’sright for the same new variety, the entitlement tothe granting of the breeder’s right shall accrue tothe person who first submitted the relevantapplication.

Section 54

1. A breeder who has submitted an application forthe granting of a breeder’s right in another UnionState in accordance with the provisions in force inthat State, shall have a priority right in respect ofthe acquisition of a breeder’s right in the Netherlandsfor the same variety if:

a. within twelve months of the submission of theapplication in the Union State concerned,excluding the day on which the application wassubmitted, a provisional application is submittedin the Netherlands invoking, in writing, the saidpriority right;

b. within three months of the submission of theprovisional application, a copy of the documentssubmitted in the other Union State is presented,such copy being certified by the competentauthority in the Union State concerned; and


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c. within two years of the end of the period referredto in (a) above, a full application within themeaning of Section 55 is submitted.

2. The priority right shall mean that, in deviation tothat extent from the provisions of Sections 49 to53, events occurring in the period between thesubmission of the application in the other countryand the submission of the provisional applicationshall not affect an application submitted in theNetherlands in accordance with Subsection 2(c); inparticular, such events shall not affect thesubmission of an application by another party orthe marketing of propagating material of the varietyconcerned.

Part 2The granting of a breeder’s right

Section 55

1. An application for the granting of a breeder’s rightshall be submitted to the Board.

2. The said application shall comprise the followinginformation:

a. a proposal for the denomination of the variety inaccordance with the rules set out in Chapter 4;

b. a description characterising the variety; and

c. a precise account of the characteristics by whichthe variety can be distinguished from othervarieties of the same plant.

3. If the Board so requires, a sufficient quantity ofmaterial of the variety to which the application relatesshall be provided to the Board for the purposes ofthe technical investigation within the meaning ofSection 49(7) in accordance with requirements tobe set by the Board.

4. If an applicant is not resident or does not have aregistered office within the territory of the EuropeanUnion, he shall be obliged to elect domicile withinthe Netherlands at the address of a legalrepresentative, with such election of domicile beingdeemed, for the application of this Act, to continueuntil the Board has been informed in writing of achange of domicile.

Section 56

1. The Board shall decide on an application for thegranting of a breeder’s right and shall adopt thedescription characterising the variety anddenomination of the variety.

2. When the variety is registered in the Register ofVarieties, a record shall simultaneously be made ofthe granting of the breeder’s right.

3. The breeder’s right shall be dated and shall takeeffect on the day immediately following that on whichthe registration and entry in the Register of Varietieswithin the meaning of Subsection 2 took place.

Part 3Rights and obligations of the holder

of a breeder’s right

Section 57

1. The holder of a breeder’s right to a variety shallhave the exclusive right to produce propagatingmaterial of that variety or to further propagate it, totreat it for the purposes of propagation, to market it,export it, import it, stock it for one of these purposes,or to cause these activities to be carried out byanother party or parties.

2. Parties other than the holder of the breeder’sright shall be prohibited from carrying out theactivities referred to in Subsection 1. This prohibitionshall not apply if consent has been given by orpursuant to the present Act or by the holder of thebreeder’s right.

3. The prohibition shall not apply to:

a. activities engaged in for private purposes andnot commercially;

b. activities engaged in solely for the purpose ofscientific research;

c. activities engaged in in order to breed newvarieties.

4. The exclusive right shall also apply to activitiesin respect of harvested material of the variety,including plants and parts of plants, that is acquiredthrough the use of propagating material for which

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no consent has been granted, unless the holder ofthe breeder’s right has had reasonable opportunityto exercise his right in respect of the saidpropagating material.

5. The exclusive right shall also apply to activitiesin respect of products that have been directlyproduced using harvested material of the varietyfor which no consent has been granted, unless theholder of the breeder’s right has had reasonableopportunity to exercise his right in respect of thesaid harvested material.

Section 58

1. The exclusive right within the meaning of Section57(1) shall also apply to activities within the meaningof that subsection in respect of material of:

a. varieties derived from the protected variety withinthe meaning of Section 57(1), unless theprotected variety is itself derived from a differentvariety;

b. varieties which are not clearly distinguishable,in accordance with Section 49(4), from theprotected variety;

c. varieties whose propagation requires therepeated use of the protected variety.

2. For the application of Subsection 1(a), a varietyshall be deemed to be derived from another varietyif the former variety:

a. is predominantly derived from the initial variety,or from a variety that is itself predominantlyderived from the initial variety;

b. is clearly distinguishable, pursuant to Section49(4), from the initial variety; and

c. except for the differences which result from theact of derivation, conforms to the initial varietyin the expression of the essential characteristicsthat result from the genotype or combination ofgenotypes of the initial variety.

3. Subsection 1(a) shall not apply to varieties whichwere a matter of common knowledge at the pointwhen the Act Implementing the 1991 UPOV

Convention [Uitvoeringswet UPOV 1991] came intoforce. Section 49(3) shall apply mutatis mutandis.

4. The Board may advise, on request, regardingwhether a variety referred to in the request is derivedfrom a variety for which the Board has granted abreeder’s right.

5. The advice provided by the Board within themeaning of Subsection 4 shall state the groundson which it is based.

Section 59

1. It may be provided by means of a generaladministrative order that the exclusive right withinthe meaning of Section 57(1) in respect of a varietybelonging to plants designated in the said generaladministrative order shall not apply to a breeder’suse for propagation purposes, on his own holding,of material of that variety or a variety within themeaning of Section 58(1)(a or b) that he hasharvested.

2. The use of harvested material for propagationpurposes on a breeder’s own holding may be madesubject to restrictions or conditions by or pursuantto the general administrative order referred to inSubsection 1, with such restrictions or conditionsrelating, inter alia, to the maximum quantity ofharvested material that may be used for propagationpurposes, the information and supportingdocumentation to be provided to the holder of thebreeder’s right by the breeder, and the payment tobe made to the holder of the breeder’s right.

Section 60

The exclusive right within the meaning of Section57(1) shall not apply to activities involving materialof the protected variety or a variety within themeaning of Section 58(1) that has been marketedby or with the consent of the holder of the breeder’sright in the Netherlands or in one of the MemberStates of the European Union or in another statewhich is a party to the Agreement on the EuropeanEconomic Area, or that has been derived from suchmaterial, with the exception of activities:

a. that involve further propagation of the variety towhich the material belongs;


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b. that involve export, other than for consumptionpurposes, of the material to a country where theplant to which the variety belongs is not subjectto protection comparable to the protection thatmay be afforded pursuant to the provisions ofthe present Act.

Section 61

1. The holder of a breeder’s right shall be obligedto grant such licences as are in the public interest.

2. The obligation within the meaning of Subsection1 shall also mean that the holder of the breeder’sright, in return for reasonable payment, shall providethe propagating material necessary for the exerciseof the licence.

3. The holder of a breeder’s right shall be obligedto grant a licence to a patent holder, in return forreasonable payment, if the patent holder is unableto exploit a patent for a biotechnological discoverywithout infringing the breeder’s right predating thepatent and the said biotechnological discoveryconstitutes important technical progress ofsignificant economic significance in respect of theprotected variety.

4. If the holder of a breeder’s right has been granteda licence under Section 57(5) of the Dutch PatentsAct 1995 [Rijksoctrooiwet] 1995, the holder of thebreeder’s right shall be obliged to grant a reciprocallicence to the patent holder, at the latter’s request,for use of the protected variety.

Section 62

1. If the holder of the breeder’s right fails to complywith his obligations within the meaning of Section61, the Board shall issue the licence at the requestof the interested party.

2. Before reaching a decision, the Board shall givethe parties the opportunity to reach agreement withina period set by the Board.

3. In the event of a failure to reach agreement, theBoard shall decide, having heard the parties. TheBoard’s decision shall specify the following: thescope of the licence, the amount of the fee to bepaid to the holder of the breeder’s right, and thequantity of propagating material to be provided,

together with the fee to be paid for that material. Ingiving its decision, the Board may impose arequirement on the party acquiring the licence thatit furnish security within a stated period.

4. After the licence has been issued by the Boardand, if such obligation has been imposed, theobligation to furnish security has been complied with,the licence shall be registered in the Register ofVarieties. The licence shall not take effect until ithas been registered, including as regards those whoacquired rights to the breeder’s right after theregistration of the request within the meaning ofSubsection 1.

Section 63

1. A licence shall authorise the licensee to engagein the activities specified therein that parties otherthan the holder of the breeder’s right are notpermitted to engage in pursuant to Section 57(1).

2. If no provisions are made to the contrary, alicence shall apply for the whole duration of thebreeder’s right and shall relate to all activities thatare subject to the consent of the holder of thebreeder’s right pursuant to this Act.

3. A licence issued otherwise than pursuant toSections 61 and 62 shall be registered in theRegister of Varieties at the request of the licensee.It shall become valid vis-à-vis third parties after suchregistration.

Section 64

A testing institution designated pursuant to Section19 and a supervisory body designated pursuant toSection 8 of the Agricultural Quality Act[Landbouwkwaliteitswet], insofar as that body ischarged by or pursuant to that Act with the testingof propagating material, shall provide, at the requestof the holder of a breeder’s right that is valid in theNetherlands in respect of propagating materialtested by the said testing institution or supervisorybody, with a list of the persons or enterprises thathave produced propagating material of the varietyfor which the breeder’s right has been granted and,as far as possible, of the quantities they haveproduced.

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Part 4The breeder’s right as a component of property

Section 65

1. A breeder’s right and an entitlement to thegranting of a breeder’s right, both as regards theentire right or a part of it, shall be assignable orotherwise transferable.

2. The transfer required to assign a breeder’s rightor the right arising from an application for thegranting of a breeder’s right shall be effectuated bymeans of a deed.

3. Any proviso regarding the assignment shall bespecified in the said deed; should no proviso bemade, the assignment shall be deemed to beunrestricted.

4. The transfer shall not take effect in respect ofthird parties until the deed has been registered inthe Register of Varieties.

5. Either party shall be equally entitled to have theBoard carry out such registration.

Section 66

1. If a breeder’s right accrues to more than oneperson jointly, the relationship between them andvis-à-vis third parties shall be governed by what hasbeen agreed between them; however, theirrelationship vis-à-vis third parties shall only be sogoverned insofar as such is shown by the Registerof Varieties.

2. If there is no agreement, or if the agreement doesnot provide otherwise, each co-titleholder shall beentitled to exercise the breeder’s right and to takeaction against any infringement of that right;however, a licence, or consent within the meaningof Section 57(2) and 60, shall only be granted bythe co-titleholders with their joint approval.

3. Before disposing of his rights to a third party,each co-titleholder shall be obliged to offer themfor sale at a reasonable price to his co-titleholders.

Section 67

1. Any pledge of a breeder’s right shall beestablished by means of a deed and shall not takeeffect in respect of third parties until the said deedhas been registered in the Register of Varieties.

2. The pledgee shall be obliged to elect domicile inThe Hague, doing so by means of a signeddeclaration submitted to the Board. If the pledgeefails to elect domicile in that way, the registered officeof the Board shall be deemed to be his electeddomicile.

3. Stipulations in the deed establishing the pledgeregarding licences to be issued after registrationshall apply, including in respect of third parties, fromthe point when they are registered in the Registerof Varieties. Stipulations within the meaning of thefirst sentence regarding fees for licences that hadalready been issued at the point of registration shalltake effect in respect of the licensee after a bailiff’snotification has been served on the latter.

4. Deeds showing that the pledge has ceased toexist or has ceased to have effect shall be enteredregistered in the Register of Varieties.

Section 68

1. Any attachment of a breeder’s right shall belevied, and the report of attachment entered in theRegister of Varieties, with the provisions of the Codeof Civil Procedure regarding the attachment ofimmovable property under a writ of execution andpre-judgment attachment applying mutatismutandis, on the understanding that the record ofattachment shall specify the breeder’s right ratherthan the location of the immovable property.

2. Any disposal, encumbering, administration order,or issuing of a licence effectuated after registrationof the report of attachment shall not be relied uponagainst the party levying the attachment.

3. Licence fees not yet paid prior to the registrationof the record of attachment shall also be includedin any attachment levied on the breeder’s right, afternotice of the registered attachment has been servedon the licensee. The said fees shall be paid to thecivil-law notary [notaris] before whom the executionis effectuated if the licensee is explicitly informed of


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this when service takes place and without prejudiceto any third-party rights that the execution creditoris required to respect. The amounts paid to the civil-law notary shall be counted as part of the proceedswithin the meaning of Section 69(2). Sections475(c), 476, and 478 of the Code of Civil Procedureshall apply mutatis mutandis.

4. The registration of the report of attachment canbe cancelled:

a. pursuant to a written statement by the bailiff,submitted for registration, to the effect that thebailiff lifted the attachment at the behest of theparty levying the attachment or that theattachment has lapsed;

b. pursuant to a judicial judgment, submitted forregistration, that orders the lifting of theattachment or brings about the lapse of theattachment.

5. Sections 504(a), 538 to 541, 726(2), and 727 ofthe Code of Civil Procedure shall apply mutatismutandis in the event of a breeder’s right beingattached.

Section 69

1. The sale of a breeder’s right by a pledgee orparty levying an attachment in order to enforce aclaim shall take place in public before a competentcivil-law notary. Sections 508, 509, 513(1), 514(2)and (3), 515-519, and 521-529 of the Code of CivilProcedure shall apply mutatis mutandis, on theunderstanding that the provisions of those sectionsregarding mortgages and mortgagees shall applyto pledges on the breeder’s right and pledgees.

2. Sections 551 to 552 of the Code of CivilProcedure shall apply mutatis mutandis to thedivision of the proceeds.

Part 5Enforcement of the breeder’s right

Section 70

1. The holder of a breeder’s right may enforce thatright against any person who engages in one of theactivities within the meaning of Section 57 withoutbeing entitled to do so.

2. Compensation may only be claimed from a partythat engages in such activities intentionally. Anintentional act shall in any case be deemed to havetaken place if the infringement was perpetrated afterthe party concerned was informed, by means of abailiff’s notification, of the fact that the activitiesconcerned constitute an infringement of thebreeder’s right.

3. In place of compensation, it shall be possible torequest that the defendant be ordered to surrenderthe profits enjoyed due to the infringement and toprovide a documented account; should a court find,however, that the circumstances of the case do notjustify such an order, it may order the defendant topay damages.

4. The holder of a breeder’s right may also bringan action for compensation or the surrender ofprofits on behalf of, or also on behalf of, licenseesor pledgees, without prejudice to the entitlement ofpledgees to intervene in an action brought by theholder of the breeder’s right, whether or not on theirbehalf, in order to claim compensation directly forthe damage they have sustained or to have itordered that the defendant surrender aproportionate share of the profits to them. Licenseesand pledgees shall only bring an independent actionor effectuate service of a bailiff’s notification withinthe meaning of Subsection 2 with a view to such ifthey have gained the consent of the holder of thebreeder’s right.

5. The holder of the breeder’s right shall be entitledto request an order that the movable property thatinfringes his right be withdrawn from use, destroyed,or rendered unfit for use, and to demand thatmaterials and tools that are primarily used toproduce that property should be withdrawn from use.When the claim is assessed, the court shall considerthe seriousness of the infringement and themeasures requested, together with the interests ofthird parties.

6. At the request of the holder of the breeder’s right,the court may order that the party that has infringedthat right should inform the holder of the breeder’sright, at the latter’s request, of everything that itknows regarding the origin of the property used inperpetrating the infringement, together with all datarelating to it .

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Section 71

1. The holder of a breeder’s right shall be entitledto claim reasonable payment from a party thatengages in activities within the meaning of Section57 in respect of a variety for which a breeder’s righthas been requested in the period betweenapplication being made for a breeder’s right andthe granting of such right.

2. Such payment shall only be due for activitiesengaged in from thirty days after the party concernedwas notified, by means of a bailiff’s notification, ofthe entitlement accruing to the holder of thebreeder’s right pursuant to the present section.

3. The said bailiff ’s notification shall beaccompanied by a copy, certified as such by theBoard, of the documentation submitted in respectof the application or excerpts from thatdocumentation insofar as these relate solely to thefeatures of the variety for which the application wassubmitted and to the account of the characteristicsthat distinguish that variety from other varieties. Thisshall not include specifying the actual breedingprocess for the variety or the genealogicalcomponents.

4. Section 1 shall not apply to activities carried outby a party entitled to do so pursuant to an agreementwith the party entitled to the granting of a breeder’sright in accordance with Sections 50 and 51.

Part 6.The duration and claiming of the breeder’s right

Section 72

The duration of the breeder’s right shall be twenty-five (25) years from the date it is granted, with theexception of plants designated by Our Minister, forwhich the duration of the breeder’s right shall bethirty (30) years.

Section 73

1. The holder of the breeder’s right may relinquishit.

2. Such relinquishment may only be effectuated bymeans of a deed, which shall be recorded in theRegister of Varieties.

3. Such registration shall not be effectuated if thereare persons who, as evidenced by documentsrecorded in the said Register, have acquired rightsor licences in respect of the breeder’s right or whohave instituted legal action in respect of thebreeder’s right, and if the said persons have notgiven their consent for relinquishment.

4. The breeder’s right shall lapse at the point whenthe said deed is registered in the Register ofVarieties.

Section 74

1. A breeder’s right shall expire by operation of lawif the fee referred to in Section 6(2)(f) remains unpaidsix months after it became due. Such expiry shallbe recorded in the Register of Varieties.

2. If payment has not been effectuated withinfourteen days after the due date, the party that isthe holder of the breeder’s right according to theRegister of Varieties shall receive a reminder fromthe Board, by registered letter, of its obligation topay.

3. If payment has not been effectuated within onemonth of the due date, written notification to thateffect shall be sent to all parties that, as evidencedby the documents recorded in the Register ofVarieties, have acquired rights or licences in respectof the breeder’s right or who have instituted legalaction in respect of the breeder’s right.

Section 75

1. A breeder’s right shall be declared null and voidby a court of law:

a. if it becomes apparent that the variety was not anew one at the point when the breeder’s rightwas granted;

b. if it becomes apparent that the variety was not adistinct one within the meaning of Section 49(4)at the point when the breeder’s right was granted;

c. if – in the event that the breeder’s right wasgranted primarily on the basis of information anddocumentation provided by the breeder – it


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becomes apparent that the variety was notuniform or stable within the meaning of Section49(5) and (6);

d. if the breeder’s right was granted to a personnot entitled to hold it in accordance with theprovisions of or pursuant to the present Act,unless the breeder’s right is transferred to theperson who is in fact so entitled.

2. Action may be instituted to bring aboutnullification at any time by any interested party orby or on the instructions of Our Minister.

3. At the request of the claimant, the summonsshall be recorded in the Register of Varieties.

4. Nullification of a breeder’s right shall remove allfurther legal consequences from the breeder’s rightand the rights arising from it.

Section 76

1. A breeder’s right may be claimed, either whollyor in part, if it has been granted to a party that hadno entitlement or no exclusive entitlement to itpursuant to Sections 50, 51, or 52.

2. At the request of the claimant, the summonsshall be recorded in the Register of Varieties.

3. The right to claim the breeder’s right shall accrueto the party that, pursuant to the above-mentionedsections, is entitled or jointly entitled to the grantingof the breeder’s right.

4. The right to claim the breeder’s right shall expirefive years after the date of the breeder’s right.

5. Licences acquired in good faith before the entrywithin the meaning of Section 77(1) was made shallremain valid vis-à-vis the new holder of the breeder’sright, who shall acquire a right to the fee owing forthe licences.

Section 77

1. An entry shall be made in the Register ofVarieties of the upholding or dismissal of legal actionto claim a breeder’s right or to have it declared nulland void.

2. The dismissal or upholding of such claim shallhave retroactive effect back to the date of the entryin the Register of Varieties referred to in Subsection1.

Part 7Disputes in respect of breeder’s rights

Section 78

1. The District Court in The Hague shall haveexclusive jurisdiction in the first instance in respectof legal action to claim a breeder’s right or to have itdeclared null and void within the meaning ofSections 75 and 76.

2. The District Court in The Hague and thepreliminary relief judge of that court shall haveexclusive jurisdiction in the first instance in respectof:

a. claims within the meaning of Sections 70and 71;

b. claims instituted by a party other than the holderof a breeder’s right for a ruling that certainactivities do not infringe a breeder’s right.

3. Judgments and injunctions rendered or issuedby the said District Court shall be open to appeal atthe Court of Appeal in The Hague.

Section 79

1. The expert members within the meaning ofSections 55(a)(2) and 70(2) of the Judiciary(Organisation) Act [Wet op de rechterlijkeorganisatie] shall be appointed by Royal Decree.They shall be appointed as members, or as deputymembers, to the District Court in The Hague or asadvisers, or deputy advisers, at the Court of Appealin The Hague, depending on the particular case.

2. The members and deputy members, or theadvisers and deputy advisers, shall be appointedfor a period of five years. Upon resigning theirposition, they shall immediately be eligible forreappointment. They may be discharged, at theirrequest, by Royal Decree.

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3. The members and deputy members, or theadvisers and deputy advisers, shall be granteddischarge by Royal Decree with effect from the firstday of the month following that in which they reachthe age of seventy.

Section 80

Sections 46(c), 46(d), 46(f), 46(g)(1 and 2), 46(i,with the exception of (c) of the first paragraph), 46(j),46(l)(1 and 3), 46(m), 46(o), and 46(p)(1 to 5) ofthe Judicial Officers (Legal Status) Act [Wetrechtspositie rechterlijke ambtenaren] shall applymutatis mutandis in respect of the members anddeputy members or the advisers and deputyadvisers.

Section 81

Our Minister shall set rules regarding the allocationof an allowance to cover travel and accommodationcosts and further reimbursement to the membersand deputy members or the advisers and deputyadvisers.

Section 82

Legal representatives of the holder of a breeder’sright may address the court at the hearing ofdisputes within the meaning of Section 78, withoutprejudice to the responsibility of the local counsel[procureur].

Section 83

The court registrar shall send a copy of all judicialdecisions in respect of a breeder’s right to the Boardwithin one month of such decision, this being at nocharge.

CHAPTER 8. OTHER PROVISIONS

Section 84

Specific rules shall be set by or pursuant to a generaladministrative order in respect of:

a. applications and requests submitted to the Boardpursuant to Chapters 4 to 7;

b. the point at which applications and requestssubmitted pursuant to Chapters 4 to 7 must havebeen submitted to the Board;

c. the hearing of interested parties by the Board.

Section 85

In order to implement decisions of the Council ofthe European Union, of the European Parliamentand the Council of the European Union jointly, or ofthe Commission of the European Communities,rules shall be set by or pursuant to a generaladministrative order regarding the approval of plantgroups that do not comply with the requirements ofSection 35 and regarding the marketing ofpropagating material deriving from such plantgroups.

Section 86

An interested party may lodge an appeal against adecision arrived at pursuant to the present Act withthe Trade and Industry Appeals Tribunal [Collegevan Beroep voor het bedrijfsleven].

Section 87

1. If matters regulated in this Act should requirefurther regulation in the interests of properimplementation of the law, this may be done bymeans of a general administrative order.

2. Rules for implementing trade directives may beset by or pursuant to a general administrative order.

3. Rules may be set by or pursuant to a generaladministrative order to implement a bindingagreement between the European Community anda third country or an international organisation thatrelates to a matter covered by a trade directive orregulation.

4. Rules may be set by ministerial regulation for theproper implementation of trade regulations.5. Rules may be set by ministerial regulation for theimplementation of delegated regulations anddelegated orders.


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6. The rules referred to in subsections 2 to 5 may:

a. assign tasks and powers to Our Minister, to theBoard, or to a testing institution designatedpursuant to Section 19;

b. designate provisions of a trade regulation thatare to be subject to the supervision of officialsor other persons appointed by Our Minister, orthat Our Minister, the Board, or a testinginstitution designated pursuant to Section 19 mayapply by taking relevant decisions.

Section 88

1. It may be determined by or pursuant to a generaladministrative order that co-operation be requiredof the management board of a product board orindustry board within the meaning of Section 66 ofthe Industrial Organisation Act [Wet op debedrijfsorganisatie].

2. If the co-operation to be provided by themanagement board of an industrial associationinvolves setting rules or detailed rules by means ofregulations, such regulations shall require theapproval of Our Minister. Insofar as such isdetermined by or pursuant to a generaladministrative order, decisions taken pursuant tothe said regulations shall require the approval ofOur Minister.

Section 89

1. Officials appointed pursuant to an order issuedby Our Minister and persons appointed pursuant toan order issued by Our Minister working at a testinginstitution designated pursuant to Section 19 shallbe charged with supervising compliance with theprovisions of or pursuant to this Act.

2. An order within the meaning of Subsection 1 shallbe published in the Government Gazette.

CHAPTER 9.TRANSITIONAL PROVISIONS AND

FINAL PROVISIONS

Section 90

1. Should the decision in any civil or criminalproceedings depend on determining the variety towhich a group of plants should be assigned, theBoard shall be heard in respect of the matter. Theadvice provided by the Board shall state the groundson which it is based.

2. The Board shall give priority to dealing with caseswithin the meaning of Subsection 1 over all othercases.

Section 91

The Economic Offences Act [Wet op deeconomische delicten] shall be amended as follows:

a. in (2°) of Section 1, the following shall be addedwithin the alphabetical order: the Seeds andPlanting Materials Act 2005, Sections 39, 40, 41,42, 46, 48(3) 57 to 60, 85 and 87;

b. (3°) of Section 1, the passage relating toRegulation (EC) No. 2100/94 of 27 July 1994 ofthe Council of the European Union onCommunity plant variety rights shall be deleted;it shall be inserted at (2°) of Section 1;

c. in (3°) of Section 1, the passage relating to theSeeds and Planting Materials Act shall bedeleted.

Section 92

The Judiciary (Organisation) Act shall be amendedas follows:

A

After Section 55, a section shall be inserted reading:

Section 55(a)

1. The board of the District Court in The Hague shallform divisions, to be known as “breeder’s rightsdivisions” to consider and rule on matters within themeaning of Section 78(1) and (2) of the Seeds and

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Planting Materials Act 2005. The board of the saidDistrict Court shall determine the membership ofthe said divisions.

2. A breeder’s rights division shall consist of twojudicial officers charged with delivering judgmentsand a person who is not a judicial officer as an expertmember. The provisions of Sections 7(3), 12, and13 shall apply mutatis mutandis.

B

In Section 70, “cases within the meaning of Section60 of the Seeds and Planting Materials Act” shallbe replaced by “cases within the meaning of Section78(3) of the Seeds and Planting Materials Act 2005”.

Section 93

Our Minister shall be empowered to applyadministrative coercion to enforce the obligationsimposed by or pursuant to the present Act.

Section 94

1. Varieties already entered in the Register ofVarieties at the point when the present Act entersinto force shall be reclassified by the Board inaccordance with the rules set by or pursuant toSection 25.

2. The Board shall ensure that varieties that hadbeen approved pursuant to Section 82 of the Seedsand Planting Materials Act on the day prior to thepoint referred to in Subsection 1 are registered inthe Register of Varieties.

3. The Board shall ensure that the approval isregistered in the Register of Varieties of varieties ofagricultural or silvicultural plants that, on the dayprior to the point referred to in Subsection 1, wereincluded in the list of varieties of agricultural plantsdetermined pursuant to Section 73 in conjunctionwith Sections 79 and 83(1) of the Seeds andPlanting Materials Act or in the list of varieties ofsilvicultural plants determined pursuant to Section73 in conjunction with Section 79 of the Seeds andPlanting Materials Act.

4. Applications and requests that are pendingbefore the Breeders’ Rights Board [Raad voor hetKwekersrecht] at the point when the present Act

enters into force shall from that point becomepending by operation of law before the Board in thestate in which they are at that point, on theunderstanding that applications relating to a varietywithin the meaning of Section 18(1)(b) and (2) ofthe Seeds and Planting Materials Act shall beconsidered as an application for the approval of avariety in accordance with Chapter 5 of the presentAct.

5. Applications for the designation of plant groupswithin the meaning of Section 82 of the Seeds andPlanting Materials Act that are pending at the pointwhen the present Act enters into force shall fromthat point become pending by operation of lawbefore the Board and shall from that point on beconsidered as an application for the approval of avariety in accordance with Chapter 5 of the presentAct.

6. Cases that are pending before the AppealsDepartment of the Breeders’ Rights Board, withinthe meaning of Section 5(1)(d) of the Seeds andPlanting Materials Act, at the point when the presentAct enters into force shall from that point becomepending by operation of law before the Board andshall from that point on be considered as anobjection.

7. Cases that are pending before the AppealsBoard [Raad van Beroep] or Appeals Commissionon Testing Matters [Commissie van Beroep inzakeKeuringen] of a testing institution within the meaningof Section 88(2°)(e or g) of the Seeds and PlantingMaterials Act at the point when the present Actenters into force shall from that point becomepending by operation of law before the relevanttesting institution designated pursuant to Section19 of the present Act and shall from that point on beconsidered as an objection.

8. Requests that are pending before the Breeders’Rights Board to claim a breeder’s right or to have itdeclared null and void within the meaning ofSections 54 and 55 of the Seeds and PlantingMaterials Act at the point when the present Actenters into force shall be considered and ruled onin accordance with the provisions of the Seeds andPlanting Materials Act.


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9. Cases pending pursuant to Sections 25(2), 60,and 69 of the Seeds and Planting Materials Actbefore the Court of Appeal in The Hague or theSupreme Court of the Netherlands [Hoge Raad]shall be considered and ruled on in accordance withthe provisions of the Seeds and Planting MaterialsAct.

Section 95

The Seeds and Planting Materials Act is herebyrepealed.

Section 96

1. This Act may be referred to as the “Seeds andPlanting Materials Act”, with reference being madeto the year of the Bulletin of Acts, Orders, andDecrees in which it is published.

2. This Act shall enter into force at a point to bedetermined by Royal Decree.

We hereby order and command that this Act bepublished in the Bulletin of Acts, Orders, andDecrees and that all ministries, authorities, boards,and civil servants to whom such applies shall takemeasures to implement it diligently.

Issued in The Hague on 19 February 2005

Beatrix

The Minister of Agriculture, Nature and Food QualityC. P Veerman

Published on 7 April 2005

The Minister of Justice


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OMAN

ROYAL DECREE 49/2009 PROMULGATINGTHE LAW ON THE PROTECTION OF BREEDERS' RIGHTS

IN NEW VARIETIES OF PLANTS*

Oman Law on the Protection of Breeders' Rights in New Varieties of Plants

* Translation provided by the Office of the Union. The Law entered into force on August 29, 2009.

We, Qaboos bin Said, Sultan of Oman,

After perusal of the Basic Law of the Statepromulgated by Royal Decree 101/96;

The Royal Decree No. 92/2000 Promulgating the Lawon the Protection of New Plant Varieties;

The Royal Decree 37/2007 regarding accession ofthe Sultanate of Oman to some International Treatiesrelated to the Protection of Intellectual PropertyRights;

The Royal Decree 9/2008 defining functions of theMinistry of Agriculture and adopting its AdministrativeStructure;

The Royal Decree 67/2008 promulgating the Lawon Industrial Property Rights

And according to the exigencies of public interest.

We decree the following:

Article I : Provisions of the attached Law on theProtection of the Breeders’ Rights in New Varietiesof Plants shall apply

Article II : Referred Royal Decree 92/2000 shall berendered null.

Article III : The Minister of Agriculture shall issue thebylaws and regulations necessary for theenforcement of the provisions of this Law. Pendingthe issuance of the bylaws and regulations, prevailingacts shall remain in force provided they do notcontradict with the provisions of the Law.

Article IV : The Royal Decree shall be published inthe Official Gazette and shall come into effect fromthe day following the date of its publication.

Qaboos bin Said

Issued on: 8 Ramadan 1430HSultan of Oman29 August 2009

CHAPTER IDEFINITIONS

Article 1

In the application of this Law, the following termsand expressions shall have the meaning attachedfor each:

(1) “breeder” means

i- the person who bred, or discovered anddeveloped, a variety, or

ii- the person who is the employer of theaforementioned person or who hascommissioned the latter’s work, or

iii- the successor in title of the first or secondaforementioned person, as the case may be;

(2) "breeder’s right" means the right of the breederprovided for in this Law;

(3) "variety" means a plant grouping within a singlebotanical taxon of the lowest known rank, whichgrouping, irrespective of whether the conditions forthe grant of a breeder’s right are fully met, can be

- defined by the expression of the characteristicsresulting from a given genotype or combinationof genotypes,

- distinguished from any other plant grouping bythe expression of at least one of the saidcharacteristics and


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

(4) "Minister": Minister of Agriculture;

(5) "Authority": The Ministry of Agriculture isdesignated as the “authority”;

(6) "UPOV" means the International Union for theProtection of New Varieties of Plants founded bythe International Convention for the Protection ofNew Varieties of Plants of 1961 and furthermentioned in the Act of 1972, the Act of 1978 and inthe 1991 Act;

(7) "member of UPOV" means a State party to theUPOV Convention of 1961/ Act of 1972 or the Actof 1978 or a Contracting Party to the 1991 Act.

CHAPTER IIGENERAL OBLIGATIONS OF THE

CONTRACTING PARTIES

Article 2Purpose

(1) The purpose of this Law is to grant and protectbreeders’ rights.

(2) The authority is entrusted with the task ofgranting breeders’ rights.

Article 3Genera and Species to be Protected

This Law shall be applied to the plant genera andspecies designated by the Minister, and by theexpiration of a period of 10 years from the date ofcoming into force of this Law at the latest, to allplant genera and species.

Article 4National Treatment

(1) According to this Law, nationals of a member ofUPOV as well as natural persons resident and legalentities having their registered offices within theterritory of a member of UPOV shall, insofar as thegrant and protection of breeders’ rights areconcerned, enjoy within the territory of the Sultanate

of Oman the same treatment as is accorded by thisLaw to the nationals of the Sultanate of Oman. Thesaid nationals, natural persons or legal entities of amember of UPOV shall comply with the conditionsand formalities imposed on the nationals of theSultanate of Oman.

(2) Nationals of any State which, not being a memberof UPOV, grants reciprocity of treatment to thenationals of the Sultanate of Oman, shall enjoynational treatment in the Sultanate of Oman.

CHAPTER IIICONDITIONS FOR THE GRANT OF THE

BREEDER’S RIGHT

Article 5Conditions of Grant

(1) The breeder’s right shall be granted where thevariety is

new,distinct,uniform andstable.

(2) The grant of the breeder’s right shall not besubject to any further conditions, provided that thevariety is designated by a denomination inaccordance with the provisions of Article 20, thatthe applicant complies with the formalities providedfor in this Law and that he pays the required fees.

Article 6Novelty

(1) The variety shall be deemed to be new if, at thedate of filing of the application for a breeder’s right,propagating or harvested material of the variety hasnot been sold or otherwise disposed of to others,by or with the consent of the breeder, for purposesof exploitation of the variety

(a) in the territory of the Sultanate of Oman earlierthan one year before the date of filing of theapplication and

(b) in a territory other than that of the Sultanate ofOman earlier than four years or, in the case oftrees or of vines, earlier than six years beforethe said date.

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(2) Where, according to Article 3, this Law appliesto a plant genus or species to which it did notpreviously apply, varieties belonging to such plantgenus or species shall be considered to satisfy thecondition of novelty defined in paragraph (1) evenwhere the sale or disposal to others described inthat paragraph took place in the territory of theSultanate of Oman within four years before the filingdate or, in the case of trees or of vines, within sixyears before the said date.

(3) The provision under paragraph (2) of this Article,shall apply to applications for protection of thebreeder’s right filed within one year after theprovisions of the Law apply to the genera or speciesconcerned.

Article 7Distinctness

The variety shall be deemed to be distinct if it isclearly distinguishable from any other variety whoseexistence is a matter of common knowledge at thetime of the filing of the application. In particular, thefiling of an application for the granting of a breeder’sright or for the entering of another variety in an officialregister of varieties, in any country, shall be deemedto render that other variety a matter of commonknowledge from the date of the application, providedthat the application leads to the granting of abreeder’s right or to the entering of the said othervariety in the official register of varieties, as the casemay be.

Article 8Uniformity

The variety shall be deemed to be uniform if, subjectto the variation that may be expected from theparticular features of its propagation, it is sufficientlyuniform in its relevant characteristics.

Article 9Stability

The variety shall be deemed to be stable if itsrelevant characteristics remain unchanged afterrepeated propagation or, in the case of a particularcycle of propagation, at the end of each such cycle.

CHAPTER IVAPPLICATION FOR THE GRANT

OF THE BREEDER’S RIGHT

Article 10Filing of Applications

(1) The filing date of the application for a breeder’sright shall be the date of receipt of the applicationduly filed as prescribed by the bylaws.

(2) The authority shall not refuse to grant a breeder’sright or limit its duration on the ground that protectionfor the same variety has not been applied for, hasbeen refused or has expired in any other State orintergovernmental organization.

Article 11Right of Priority

(1) Any breeder who has duly filed an applicationfor the protection of a variety in one of the membersof UPOV (the “first application”) shall, for thepurpose of filing an application for the grant of abreeder’s right for the same variety with the authority,enjoy a right of priority for a period of 12 months.This period shall be computed from the date of filingof the first application. The day of filing shall not beincluded in the latter period.

(2) In order to benefit from the right of priority, thebreeder shall, in the application filed with theauthority, claim the priority of the first application.The authority shall require the breeder to furnish,after a period of not less than three months fromthe filing date of the application, a copy of thedocuments which constitute the first application,certified to be a true copy by the member of UPOVin which that first application was filed, and samplesor other evidence that the variety which is the subjectmatter of both applications is the same.

(3) The breeder shall be allowed a period of twoyears after the expiration of the period of priority or,where the first application is rejected or withdrawn,an appropriate time, after such rejection orwithdrawal, in which to furnish, to the authority, anynecessary information, document or materialrequired for the purpose of the examination underArticle 12 of this Law.


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Article 12Examination of the Application

Any decision to grant a breeder’s right shall requirean examination for compliance with the conditionsunder Articles 5 to 9 of this Law. In the course ofthe examination, the authority may grow the varietyor carry out other necessary tests, cause thegrowing of the variety or the carrying out of othernecessary tests, or take into account the results ofgrowing tests or other trials which have already beencarried out. For the purposes of examination, theauthority may require the breeder to furnish all thenecessary information, documents or material asspecified in the bylaws.

Article 13Provisional Protection

Provisional protection is provided to the breederduring the period between the publication of theapplication for the grant of a breeder’s right and thegrant of that right. Such measures shall have theeffect that the holder of a breeder’s right shall be isentitled to at least equitable remuneration from anyperson who, during the said period, has carried outacts which, once the right is granted, require thebreeder’s authorization as provided in Article 14 ofthis Law.

CHAPTER VTHE RIGHTS OF THE BREEDER

Article 14Scope of the Breeder’s Right

(1)(a) Subject to Articles 15 and 16 of this Law, thefollowing acts in respect of the propagating materialof the protected variety shall require theauthorization of the breeder:

- production or reproduction (multiplication),- conditioning for the purpose of propagation,- offering for sale,- selling or other marketing,- exporting,- importing,- stocking for any of the purposes mentioned above.

(b) The breeder may make his authorization subjectto conditions and limitations.

(2) Subject to Articles 15 and 16 of this Law, theacts referred to in paragraph (1)(a) in respect ofharvested material, including entire plants and partsof plants, obtained through the unauthorized use ofpropagating material of the protected variety shallrequire the authorization of the breeder, unless thebreeder has had reasonable opportunity to exercisehis right in relation to the said propagating material.

(3)(a) The provisions of paragraphs (1) and (2) shallalso apply in relation to

"1" varieties which are essentially derived from theprotected variety, where the protected variety is notitself an essentially derived variety,

"2” varieties which are not clearly distinguishable inaccordance with Article 7 from the protected varietyand

"3" varieties whose production requires the repeateduse of the protected variety.

(b) For the purposes of subparagraph (a)“1”, avariety shall be deemed to be essentially derivedfrom another variety (“the initial variety”) when

"1" it is predominantly derived from the initial variety,or from a variety that is itself predominantly derivedfrom the initial variety, while retaining the expressionof the essential characteristics that result from thegenotype or combination of genotypes of the initialvariety,

"2" it is clearly distinguishable from the initial varietyand

"3" except for the differences which result from theact of derivation, it conforms to the initial variety inthe expression of the essential characteristics thatresult from the genotype or combination ofgenotypes of the initial variety.

(c) Essentially derived varieties may be obtainedby the selection of a natural or induced mutant,or of a somaclonal variant, the selection of avariant individual from plants of the initial variety,backcrossing, or transformation by geneticengineering or other means.

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Article 15Exceptions to the Breeder’s Right

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

(a) acts done privately and for non-commercialpurposes,

(b) acts done for experimental purposes and

(c) acts done for the purpose of breeding othervarieties, and, except where the provisions ofArticle 14(3) of this Law apply, acts referred to inArticle 14(1) and (2) of this Law in respect ofsuch other varieties.

(2) Small farmers shall not infringe the breeder’sright, in relation to varieties included in a list ofagricultural plants, if they use for propagatingpurposes, on their own holdings, the product ofthe harvest which they have obtained by planting,on their own holdings, the protected variety or avariety covered by Article 14(3)(a)“1” or “2” ofthis Law, provided that this use is withinreasonable limits and subject to the safeguardingof the legitimate interests of the breeder.

(3) The varieties of fruit trees, ornamentals,vegetables and forest plants are excluded fromthe exception under paragraph (2) of this Article.

Article 16Exhaustion of the Breeder’s Right

(1) The breeder’s right shall not extend to actsconcerning any material of the protected variety, orof a variety covered by the provisions of Article 14(3)of this Law, which has been sold or otherwisemarketed by the breeder or with his consent in theterritory of the Sultanate of Oman, or any materialderived from the said material, unless such acts

(a) involve further propagation of the variety inquestion or

(b) involve an export of material of the variety, whichenables the propagation of the variety, into a countrywhich does not protect varieties of the plant genusor species to which the variety belongs, exceptwhere the exported material is for final consumptionpurposes.

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

(a) propagating material of any kind,

(b) harvested material, including entire plants andparts of plants, and

(c) any product made directly from the harvestedmaterial.

Article 17Restrictions on the Exercise

of the Breeder’s Right

(1) Except where expressly provided in this Law,the free exercise of a breeder’s right shall not berestricted in the territory of the Sultanate of Omanfor reasons other than of public interest.

(2) When any such restriction has the effect of theMinister granting a compulsory license whereby athird party is authorized to perform any act for whichthe breeder’s authorization is required, the breedershall receive equitable remuneration.

Article 18Measures Regulating Commerce

The breeder’s right is independent of any measuretaken by any relevant authority within its competenceto regulate in the Sultanate of Oman the production,certification and marketing of material of varietiesor the importing or exporting of such material. Inany case, such measures shall not affect theapplication of the provisions of this Law.

Article 19Duration of the Breeder’s Right

The breeder’s right shall be granted for a fixedperiod of 20 years from the date of the grant of thebreeder’s right. For trees and vines, the said periodshall be 25 years from the said date.


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CHAPTER VIVARIETY DENOMINATION

Article 20Variety Denomination

(1)(a) The variety shall be designated by adenomination which will be its generic designation.

(b) Subject to paragraph (4), no rights in thedesignation registered as the denomination of thevariety shall hamper the free use of thedenomination of the variety, even after the expirationof the breeder’s right.

(2) The denomination must enable the variety to beidentified. It may not consist solely of figures exceptwhere this is an established practice for designatingvarieties. It must not be liable to mislead or to causeconfusion concerning the characteristics, value oridentity of the variety or the identity of the breeder.In particular, it must be different from everydenomination which designates, in the territory ofany member of UPOV, an existing variety of thesame plant species or of a closely related species.

(3) The denomination of the variety shall besubmitted by the breeder to the authority. If it is foundthat the denomination does not satisfy therequirements of paragraph (2), the authority shallrefuse to register it and shall require the breeder topropose another denomination within a prescribedperiod. The denomination shall be registered by theauthority at the same time as the breeder’s right isgranted.

(4) Prior rights of third persons shall not be affected.If, by reason of a prior right, the use of thedenomination of a variety is forbidden to a personwho, in accordance with the provisions of paragraph(7), is obliged to use it, the authority shall requirethe breeder to submit another denomination for thevariety.

(5) A variety must be submitted to all members ofUPOV under the same denomination. The authorityshall register the denomination so submitted, unlessit considers the denomination unsuitable. In the lattercase, it shall require the breeder to submit anotherdenomination.

(6) The authority shall ensure that all the othermembers of UPOV are informed of mattersconcerning variety denominations, in particular thesubmission, registration and cancellation ofdenominations. Any member of UPOV may addressits observations, if any, on the registration of adenomination to the authority.

(7) Any person who, in the Sultanate of Oman, offersfor sale or markets propagating material of a varietyprotected in it shall be obliged to use thedenomination of that variety, even after theexpiration of the breeder’s right in that variety, exceptwhere, in accordance with the provisions ofparagraph (4), prior rights prevent such use.

(8) When a variety is offered for sale or marketed,it shall be permitted to associate a trademark, tradename or other similar indication with a registeredvariety denomination. If such an indication is soassociated, the denomination must nevertheless beeasily recognizable.

CHAPTER VIINULLITY, CANCELLATION AND TERMINATION

OF THE BREEDER’S RIGHT

Article 21Nullity of the Breeder’s Right

The breeder’s right shall be declared null and voidwhen any of the following is established

(a) that the conditions laid down in Articles 6 or 7 ofthis Law were not complied with at the time of thegrant of the breeder’s right,

(b) that, where the grant of the breeder’s right hasbeen essentially based upon information anddocuments furnished by the breeder, the conditionslaid down in Articles 8 or 9 of this Law were notcomplied with at the time of the grant of the breeder’sright,

(c) that the breeder’s right has been granted to aperson who is not entitled to it, unless it is transferredto the person who is so entitled.

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Article 22Cancellation of the Breeder’s Right

(1) The breeder’s right may be cancelled if it isestablished that the conditions laid down in Articles8 or 9 of this Law are no longer fulfilled.

(2) The breeder’s right may be cancelled if, afterbeing requested to do so and within the prescribedperiod,

(a) the breeder does not provide the authority withthe information, documents or material deemednecessary for verifying the maintenance of thevariety,

(b) the breeder fails to pay such fees as may bepayable to keep his right in force, or

(c) the breeder does not propose, where thedenomination of the variety is cancelled after thegrant of the right, another suitable denomination.

Article 23Termination of the Breeder’s Right

(1) The breeder’s right shall terminate when the termprovided in Article 19 of this Law expires.

(2) The breeder’s right shall terminate before theterm expires when the breeder renounces it bywritten declaration addressed to the authority.

(3) Termination and assignment shall be recordedand published according to the conditions andprocedures prescribed by the Bylaws.

CHAPTER VIIIFINAL PROVISIONS

Article 24Bylaws

(1) The Minister of Agriculture shall make bylawsand issue decisions required for the implementationof the provisions of this Law, and, more particularlyfor the following:

(a) Procedural matters concerning applications forthe grant of breeders’ rights;(b) Matters concerning variety denominations;

(c) Matters concerning examination of applicationsfor the grant of breeders’ rights;(d) Publication requirements;(e) Opposition procedures; and(f) Fixing the fees to be paid for the filing ofapplications, breeders’ certificates and thecompulsory licenses in coordination with the Ministryof Finance.(g) Data to be included in the registers concerningbreeders’ rights.

(2) Any interested person may file an appeal againstdecisions made in respect of that person, within 60days from the date on which the said person isinformed of the relevant decision, before acommittee, the constitution and working methodsof which shall be prescribed by the Bylaws.Decisions made by the committee shall becomefinal only upon approval by the Minister.

Article 25Enforcement of Breeders’ Rights

(1) The competent court shall expedite thesettlement of disputes relating to the application ofthe provisions of this law and its executive bylawsand decisions.

(2) The provisional, civil, customs and criminalmeasures provided in the Law of Industrial PropertyRights issued by the Royal Decree 67/2008 shallapply in respect of the enforcement of plantbreeders’ rights provided in this Law.

Article 26Supervision

Supervision over the implementation of this Law andthe Bylaws according to this Law shall be performedby the authority designated by the Minister.

Article 27Publication

Information concerning applications for and grantsof breeders’ rights, and proposed and approveddenominations shall be regularly published, asprescribed by the Bylaws.


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The Senate and the Chamber of Representativesof the Eastern Republic of Uruguay, having met atthe General Assembly,Decreed as follows:

Article 1 –Articles 14, 35, 37, 38, 40, 41, 44, 45,48, 63, 65, 69, 72 and 75 of Law No. 16.811 ofFebruary 21, 1997 are hereby replaced to read asfollows:

“Article 14 – The Institute shall have the followingduties:

(A)To promote the development of seed activitiesat all stages.

(B)To monitor the production and marketing ofseeds and at the same time to ensure compliancewith the provisions laid down by this Law and theRegulations under it; to that end it shall beempowered to:

(1) sample, inspect, analyze and test seeds in theprocess of production, transportation, sale andoffering or display for sale, in any place and at anytime, in order to ascertain whether legal andregulatory provisions have been met;

(2) have access to places in which seeds are locatedor are in the process of being produced;

(3) effect the withdrawal from sale of any seed thatdoes not meet the requirements of this Law; and,

(4) seek the assistance of the forces of law andorder where necessary.

(C)To advise the Executive on matters of seed policyby issuing opinions prior and fundamental to theenactment of provisions related to seed activities.

(D)To keep the National Register of Cultivars andthe General Register of the Seed Industry.

(E)To maintain the Register of Cultivar Ownershipand grant the appropriate titles in accordance withnational provisions and bilateral or multilateralinternational agreements.

(F)To effect the national and internationalcertification of seeds, subject to observance ofbilateral or multilateral international agreements.

(G) To maintain the country’s official seedlaboratory by carrying out analytical work and alsoissuing the corresponding certificates, subject toobservance of bilateral or multilateral internationalagreements.

(H)To authorize and advise private seed testinglaboratories in accordance with the applicableprovisions.

(I) To process and implement arrangements for theimport and export of seeds.

(J) To carry out, either by itself or through thirdparties, such investigations of technical characteras it may consider necessary for the fulfillment ofits duties and functions, and also such consultationsor verifications as may have to be made with foreignorganizations of the same kind.

(K)To enter into relations of mutual cooperation andagreements with public or private institutions, eithernational or foreign, and also with international orregional organizations.

(L) To promote the training and further training ofofficials concerned with the relevant sector, incoordination with national research and technicalassistance bodies.

(LL) To set prices for:

· entries in the National Register of Cultivars, theGeneral Register of the Seed Industry and theRegister of Cultivar Ownership;

URUGUAY

EXECUTIVELaw No. 18.467* of February 27, 2009

* Translation provided by the Office of the Union.

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· annual fees for the maintenance of entries inthe aforementioned registers;· labels for the various categories of seeds;· seed testing;· applications and annual fees for authorizationof seed testing laboratories, processing plants andother service providers associated with seeds;· seed certification;· applications for cultivar ownership titles andprocessing and grant thereof; and,· any other service provided by the Institute inaccordance with the rules governing matters withinits jurisdiction; the prices set shall be in strictproportion to the cost of the services provided.

(M) To decide on and apply the appropriatesanctions for violations of the regulatory provisionsestablished by this Law and the Regulations underit, and to set the amounts of the corresponding fines.

(N)To enforce the sanctions imposed by it, for thepurposes of which the records of its final resolutionsshall constitute the titles of enforcement; thoserulings shall be considered final that are expresslyor tacitly accepted by the recipient of the sanctionsand also those that deny leave to appeal underArticle 22 of this Law.

(O) To enter into agreements on payment for thesanctions imposed by it, where it sees fit.”

“Article 35 – The only batches of seed producedin the country that may be marketed are those thathave been previously tested by authorized or officialseed testing laboratories, whose test findings showthat the seed meets prevailing quality standards.

The Executive shall, when regulating thisprovision, set the date of the entry into force thereof.”

“Article 37 – Where the test findings fall short ofthose prescribed by the regulations, the seed shall,in order to be offered for sale, be reclassified underthe control of the National Seeds Institute with aview to the achievement of acceptable values.

Where reclassification is not appropriate, theNational Seeds Institute may order its use as aconsumer product or in industrial processes, or itsdestruction.”

“Article 38 – The seed institutions shall beresponsible, when dealing with third parties and theNational Seeds Institute, for the conformity of a seedto the quality standards laid down in this Law andthe Regulations under it, and for the accuracy ofthe information given on the labels and packagingof the seed, when the said seed is sold and offeredfor sale by them, or when it is sold or offered forsale by third parties, and the liability of the said seedinstitutions shall be verified. In other cases, thetrader selling the seed shall be liable.”

“Article 40 – Where the consumer has doubtsconcerning the genuineness, purity, germination ortreatment specified on the labels of seeds that heor she has bought, he or she may seek officialconfirmation from the National Seeds Instituteaccording to the procedure laid down in the relevantregulations.

Complaints concerning genuineness, purity,germination and processing shall be made duringcultivation and up to the start of harvesting, as soonas the problem is discovered.

If it is found that the complaint is justified, theseller shall be obliged to repay the price of the seedand freight charges to the buyer, without prejudiceto the sanctions provided for in this Law.

The buyer shall be obliged to return the seedthat has not been sown, along with thecorresponding packaging, any expenses associatedwith the return being payable by the seller.”

“Article 41 – It shall be prohibited to market anyseed:(1) in packaging that prevents the traceabilityprocess needed to guarantee the fulfillment of theprovisions;

(2) together with information on the packaging orlabels that is not expressly allowed by prevailingregulations;

(3) with a label or notice that in one way or anothermisleads as to the properties and condition of theseed or does not conform to prescribed standards;and,


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(4) that does not conform to the requirements,tolerances and other specific conditions laid downto that end by the provisions of this Law.

The National Seeds Institute shall regulate theconditions in which seeds in any of thesituationsprovided for in this Article are transported.”

“Article 44 – Cultivars entered in the Registerreferred to shall:(1) possess a characterizing proper name thatprevents them from being confused with anothervariety already registered or from misleading as tothe properties of the seed;

(2) retain their original names, in the case of foreigncultivars;

(3) be distinguishable from other cultivars alreadyregistered;

(4) be sufficiently uniform in their characteristics asa whole, according to their reproductive orvegetative propagation system, and satisfy theconditions of stability that enable them to beidentified;

(5) be the subject of national test data carried out inthe form and under the conditions stipulated by theExecutive;

(6) have a maintainer that is registered with theNational Seeds Institute; and,

(7) be sponsored by agricultural engineers.

For the purposes of the national test datarequirement, regulations issued by the NationalSeeds Institute shall specify the growing periods orcycles required according to the species concerned,and it may make exceptions for species in respectof which such testing is required.”

“Article 45 – The testing of cultivars for thepurposes of acceptance in the National Register ofCultivars shall be the responsibility of the NationalSeeds Institute, which may conduct technicalexaminations either directly or through other publicor private national institutions. The testing shall beessentially agronomic and have scientific backingthat allows an assessment, at the experimentallevel, of how the cultivar behaves in the field.”

“Article 48 – The term of validity of entries in theNational Register of Cultivars shall be determinedby the Ministry of Livestock, Agriculture andFisheries on a proposal by the National SeedsInstitute, taking into consideration the particularcharacteristics of each species or groups of species.

“Article 63 – The activities described in Article82(9) of this Law, and also the production forcommercial purposes, processing, testing, storage,distribution, sale, import and export of seeds mayonly be carried out by those who have been enteredin the General Register of the Seed Industry that iskept for such purposes by the National SeedsInstitute.

Those registered under Decree Law No. 15.173of August 13, 1981, and the Regulations under it,Decree 84/983 of March 16, 1983, and its amendingDecrees 418/987 of August 12, 1987, and 519/991of September 17, 1991, shall be considered enteredin the Register created by this Article.”

“Article 65 – Nurseries, seed producers,seedsmen, seed laboratories and seed processors,importers and exporters shall conduct their activitiesunder the technical supervision of a professionalagricultural engineer, who shall be registered withthe National Seeds Institute.”

“Article 69 – For a cultivar to qualify for protection,it shall meet all of the following requirements:

(A)It shall be new, in the sense that it shall not havebeen offered for sale or marketed with the consentof the breeder:

(1) within the Republic, for a period of more thanone year immediately prior to the filing date of theapplication for protection; and,

(2) outside the Republic, for more than six years inthe case of vines and trees, or more than four yearsin the case of all other plants.

(B)It shall be clearly distinguished from any cultivar,the existence of which is a matter of commonknowledge on the filing date of the application forprotection in terms of at least one morphological,physiological, cytological, chemical or other

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important characteristic, shall fluctuate little, and beable to be described and recognized in preciseterms.

(C)It shall be sufficiently uniform in its characteristicsas a whole according to its system of reproductiveor vegetative propagation.

(D)It shall remain stable in its essentialcharacteristics, in the sense that, at the end of eachcycle of propagation carried out in the mannerspecified by its breeder, it shall retain thecharacteristics by which the said breeder definedit.

(E)It shall have been given a denomination that isacceptable to the Registry in accordance with theprovisions of the Regulations.”

“Article 72 – The cultivar that is the subject ofthe title of ownership may be used without the holderthereof being granted any right to compensationwhere:

(A)the product of cultivation is used or sold as araw material or food;

(B)seed is set aside and sown for own use and notfor commercial purposes. When it is a small farmerwho sets aside and sows seeds for own use andnot for commercial purposes, the present provisionis public policy. The Executive, through the Ministryof Livestock, Agriculture and Fisheries, shall definethe term ‘small farmer’; or,

(C)other breeders use it for experimental purposesor as a source of genetic material for the creationof new cultivars, provided that the protected cultivaris not used repeatedly and systematically for thecommercial production of other cultivars.”

“Article 75 – The term of validity of the title ofownership shall run from the time of its provisionalissue, and may not be less than 20 years or morethan 25 years according to the species concernedand to the provisions of the Regulations.”

Article 2 – The following paragraph shall be addedto Article 82 of Law No. 16.811, of February 21,1997:

“18) ‘Maintainer’ means the natural person orlegal entity responsible for the maintenance of avariety, which ensures that it conserves thecharacteristics of its variety throughout its life spanand, in the case of hybrids, that the hybridizationformula was followed.”

Article 3 –Articles 83, 85 and 86 of Law No. 16.811,of February 21, 1997, shall be replaced to read asfollows:

“Article 83 – With respect to aspects not providedfor in the foregoing definitions, the criteria laid downby the International Seed Testing Association orother bilateral or multilateral agreements to whichthe country is a party shall be observed.”

“Article 85 – The violations referred to in theforegoing Article shall be punished with the following,according to the seriousness of the violation andthe background of the violator:

(A)Warning.

(B)Fine from 20 to 2,000 UR (readjustable units).

(C)Seizure of the merchandise or of the apparatusused to commit the violation.

(D)Destruction of the merchandise whereappropriate.

(E)Suspension of the violator from the relevantregister.

(F)Temporary or permanent disqualification.

(G) Partial or total, temporary or permanent closureof the premises of the company, whether owned byit or by third parties, and regardless of whether theyare intended for storage, processing, marketing,laboratory testing or any other activity associatedwith seed production and trading.

Where appropriate, closure may affect only suchpremises as are used for a specific activity.

The sanctions provided for above may be appliedin combination and adapted to the seriousness ofthe violation, the value of the merchandise and thebackground of the offender. The National SeedsInstitute shall periodically publish, through the


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relevant channel, details of the wages of offendersthat have been sanctioned for committing violationscategorized as ‘serious’ or ‘very serious’, and itssanction decisions shall be final. The publicationshall list the name of the violator, the violationcommitted and the sanction administered.

“Article 86 – Agricultural engineers with technicalresponsibilities who violate the provisions laid downin this Law and the Regulations under it shall beliable to the following sanctions:

(1) Warning.

(2) The fines provided for in the foregoing Article.

(3) Suspension of their status as seed experts forup to one year.

Sanctions shall be graduated and applied withdue regard to the nature and seriousness of theviolations, the degree of guilt and similar actspreviously committed by the offender. The NationalSeeds Institute shall keep a register of violators andshall periodically publish, through the relevantchannel, details of the wages of those with technicalresponsibilities that have been sanctioned forcommitting violations categorized as ‘serious’ or‘very serious’, and its sanction decisions shall befinal. The publication shall list the name of thetechnical violator, the violation committed and thesanction administered.

Companies shall be jointly liable for the financialsanctions imposed on their technical staff.”

Meeting Room of the Chamber of Representatives,Montevideo, February 17, 2009.

(signed)

NELSON RODRÍGUEZ SERVETTO3rd Deputy Chairman

(signed)

MARTI DALGALARRONDO AÑÓNSecretary

Presidency of the Eastern Republic of Uruguay

MINISTRY OF THE INTERIORMINISTRY OF EXTERNAL RELATIONSMINISTRY OF ECONOMY AND FINANCEMINISTRY OF NATIONAL DEFENSEMINISTRY OF EDUCATION AND CULTUREMINISTRY OF TRANSPORT AND PUBLICWORKSMINISTRY OF INDUSTRY, ENERGY AND MININGMINISTRY OF LABOUR AND SOCIAL SECURITYMINISTRY OF PUBLIC HEALTHMINISTRY OF LIVESTOCK, AGRICULTURE ANDFISHERIESMINISTRY OF TOURISM AND SPORTMINISTRY OF HOUSING, PLANNING AND THEENVIRONMENTMINISTRY OF SOCIAL DEVELOPMENT

Montevideo, February 27, 2009

Be it complied with, receipt acknowledged,informed, published and included in the NationalRegistry of Laws and Decrees, the Law whichamends various provisions of Law No. 16.811, ofFebruary 21, 1997, relating to the National SeedsInstitute.

(signed)

Dr. TABARE VAZQUEZPresident of the Republic

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CASE LAW

This section has been created to publish informationon case law relevant to plant breeders' rights. TheOffice of the Union welcomes the submission ofsummaries of recent decisions and/or, if possible,a direct link to the full text of the decision. Pleasesend your contribution to: [email protected].

Disclaimer: The views expressed in the summariesunder this section and/or in the contents of Courtdecisions are not necessarily those of UPOV. Theyare provided for information purposes only.

EUROPEAN UNIO N - Lemon Symphony

Summary by Gert Würtenberger, Wuesthoff &Wuesthoff, Germany

Facts

The Plaintiff, being the owner of a Community plantvariety right for the “Lemon Symphony” variety ofthe Osteospermum ecklonis species, accused theDefendant of infringing upon its rights in “LemonSymphony” by distributing cap marguerite seedlingsunder the variety denomination “Sumost 01” (brandname “Summer daisy’s Alexander). In 2001 grantof Community plant variety protection for this varietywas applied for under the denomination “SUMOST01”. At the time of the appeal decision, no finaldecision had been issued in relation to theapplication for plant variety protection. However, in2003 the Bundessortenamt (the German authorityfor plant variety protection), that had been entrustedwith the technical examination by the CPVO,reached in an interim report, that had been drawnup in consideration of material dealt with as beingpart of the Plaintiff’s variety, the conclusion that“SUMOST 01” had not been sufficiently distinct fromthe “Lemon Symphony” variety in the 2003examination period.

Both the Regional Court and the Higher RegionalCourt of Düsseldorf granted the action andconfirmed that the “Sumost 01” “variety” infringesupon the rights in the “Lemon Symphony” variety.The Defendant filed an appeal on a point of lawdirected against the Higher Regional Court ofDüsseldorf’s decision with the Federal SupremeCourt. On 14 September 2005, that is to say, afterannouncement of the appeal decision, the CPVOadapted the original variety description of the

Plaintiff’s variety to reflect the result of the technicalpost-examination and a variety description basedthereupon, a possibility which is provided for in Art.87 para. 4 of the Regulation on Community PlantVariety Rights. The appeal filed thereagainst by thebreeder of the “Sumost 01” variety was rejected bythe Appeal Board of the CPVO. The action lodgedwith the Court of First Instance of the EuropeanCommunities against the rejection has not beendecided upon yet.

As “Sumost 01” was obviously identical with “LemonSymphony”, the breeder of the “Sumost 01” varietyfiled the request in 2004 that the protection grantedto the “Lemon Symphony” variety be annulled onthe ground that since 2001 it has not correspondedwith the phenotype determined in the course of theregister examination in 1997. The Office rejectedsuch request. The appeal filed by the breeder ofthe “Sumost 01” variety was dismissed by the Boardof Appeal of the CPVO; the action lodged with theCourt of First Instance in that regard has not beendecided yet either. In 2007 the breeder of the“Sumost 01” variety further requested that theCommunity plant variety right for the Plaintiff’svariety be declared invalid. Equally, the rejectionby the Office was appealed. However, the Board ofAppeal also rejected the appeal raised thereagainst.

The Decision of the Higher Regional Court

The Higher Regional Court of Düsseldorf had giventhe following reasoning in its decision: It confirmedthat the Regional Court correctly assumed that thescope of protection of a protected variety isdetermined by the combination of the expressionof its characteristics as specified in the granting


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decision. Further, in addition to identity, the scopeof a protected variety encompasses a scope oftolerance which has to be expected with regard tothe species at issue. For determination purposes,the Court of Appeal agreed that a comparisoncultivation is often required as was performed bythe expert appointed by the Higher Regional Court.The variety description of 16 October 1997 of“Lemon Symphony” which continued being valid atthe time of the oral hearing, formed the starting pointof the assessment based on the results of thiscultivation. The new variety description dated14 September 2005 was, however, not entirely ofno relevance since the differences in bothdescriptions primarily arose from an amendmentof the examination guidelines and the circumstancethat, in the interim, additional varieties were availablefor comparison purposes. Based on the results ofthe taking of evidence, the Appeal Court – like theHigh Regional Court – was convinced that theDefendant’s variety underlying a 2003 to 2005cultivation and the 2005 variety description of“Lemon Symphony” identically concur with thePlaintiff’s variety. Accordingly, the Court of Appealconfirmed the Higher Regional Court’s conclusionthat the attacked plant material identically concursin all characteristics of the protected variety basedon the results of the comparison cultivation. Colourdeviations in certain characteristics were regardedas so marginal that they could have been expected,thus, lying within the scope of tolerance of thePlaintiff’s variety. Also, the Court of Appeal was ofthe opinion that the differences in one of thequantitative characteristics were within the variationsto be expected and did not allow to recognise asignificant difference between the Plaintiff’s varietyand the attacked plants.

The Decision of the Federal Supreme Court

The Federal Supreme Court confirmed that thescope of protection of the protected variety, doesnot only cover identical plants, but plants of the samespecies with deviating characteristics which,however, fall into the scope of tolerance of certainvariations to be expected. The Federal SupremeCourt emphasised this correct consideration whichso far was not finally acknowledged in the case lawof the German Federal Supreme Court (cf. BGHZ166, 203, 209 et seq. – Melanie), but was concurrentwith established case law of lower instance courts(cf. Higher Regional Court of Frankfurt, comm.

1982, 212, 213; Higher Regional Court of DüsseldorfInstGE 4, 127, 134 = GRUR-RR 2004, 281) andwith the unanimous view held in German literature(cf. Wuesthoff/Leßmann/Würtenberger, Handbuchzum deutschen und europäischenSortenschutzrecht, Weinheim, 1999, margin note306: “Equivalence region of a plant variety right;individualised scope of protection”; Keukenschrijver,German Plant Variety Act, 2001, margin note 48 inrelation to § 10; Jestaedt, GRUR 1982, 595, 598).Such is not only applicable to the national plantvariety protection pursuant to § 10 German PlantVariety Act but also to the Community plant varietyprotection as per Art. 13 CPVR, from which thenational law does not differ in that regard. Correctly,the Higher Regional Court relied on the fact thatplant variety protection concerns living matter theconcrete expression of which depends on variousfactors such as the cultivation of the mother plant,quality of the used cuttings, pruning date, utilisationof fungicides and insecticides, substratum, quantityof manuring and water, temperature and lightexposure. This is justification for acknowledging ascope of tolerance in addition to identity. TheFederal Supreme Court was convinced that thisissue of interpretation was to be unambiguouslyanswered as well with regard to the Community plantvariety protection with the effect that no preliminaryruling by the Court of Justice of the EuropeanCommunities need to be obtained (cf. ECJ 1982,3415 = NJW 1983, 1257 – C.I.L.F.I.T.).

Since the Defendant had challenged the adaptationof the “Lemon Symphony” variety description as wellas validity of the Plaintiff’s protective right, theDefendant requested in the proceedings on theappeal on a point of law that the same be suspendeduntil the conclusion of these further pendingproceedings and the rendering of final decisions onthe validity of the Community plant variety “LemonSymphony” and the adaptation of the Plaintiff’svariety. In this regard, the German Federal SupremeCourt set forth that the infringement court is boundby the grant of protection of the Community plantvariety right (Art. 105 CPVR; cf. Würtenberger/vander Kooij/Kiewiet/Ekvad, European CommunityPlant Variety Protection, 2006, margin note 7.09).The Federal Supreme Court admitted that it maysuspend the proceedings and await the conclusionof another legal dispute if its own decisioncompletely or partially depends on the existence ornon-existence of a legal position which is subject to

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another pending legal dispute. Art. 106 para. 2CPVR expressly provides therefor in case ofpending proceedings with the objective of adeclaration of nullity of the Plaintiff’s variety pursuantto Art. 20 CPVR or the cancellation of theCommunity plant variety right protection pursuantto Art. 21 CPVR.

A suspension in consideration of the action lodgedagainst the adaptation of the variety description was,in the opinion of the Federal Supreme Court, notrequired in this case since the decision on thepresent legal dispute did not depend thereon. TheAppeal Court committed no legal error in findingthat the adapted variety description may be drawnupon in order to assess the expression of thecharacteristics decisive according to the originalvariety description in light of the UPOV DirectiveTG/176/3, thus only “translating” the same in orderto allow a comparison of the expressions of theattacked plant material as cultivated in 2003 and2004 with the Plaintiff’s variety and the plants of thePlaintiff’s variety cultivated in the same years. Thebasic principle as alleged in the appeal of a point oflaw that in the infringement proceedings one wasnot allowed to deviate from the variety descriptionin the granting decision, can neither be taken fromcase law nor literature, bearing in mind the relevanceafforded to it; particularly, the sources cited in theappeal on a point of law (BGHZ 166, 203, 208 etseq. – Melanie; Keukenschrijver, in the place cited,margin note 46 ad § 10) do not support suchprinciple. Neither was there a justification for it. TheFederal Supreme Court admitted that, while theinfringement court is bound by the granting decision,it was not hindered thereby to determine the contentand scope of the plant variety right on its ownauthority, like in cases of any other intellectualproperty right. Rather, the infringement court isunder the obligation to seek clarity how theexpressions of the characteristics specified in thegranting decision can be determined under theclimatic and other conditions at the time ofclarification of the matter with a certainty sufficientfor the Judge’s shaping of opinion. Nothing elsehas been done by the Appeal Court.

“Complexity of the protective right position” asworried about in the appeal on a point of law couldnot be used for arguing against this authority of theinfringement court. The adaptation of the officialvariety description pursuant to Art. 87 para. 4 CPVR

did not re-define the variety’s scope of protection.Rather, it was meant to provide for bettercomparability and, thus, had a clarifying function.Therefore, the infringement assessment was to bebased on it “retrospectively” as well as on thetechniques deemed necessary by the infringementcourt in order to see for itself the distinctness ornon-distinctness of the attacked plant material fromthe protected variety.

Equally, the stay of the proceedings because of thenullity and cancellation proceedings initiated by thebreeder of “Sumost 01” was rejected by the Court.It pointed out that the suspension of the infringementcase is up to the Court’s discretion in accordancewith Art. 106 para. 2 CPVR as well as § 148 of theGerman Civil Procedure Act and, even if moregenerous standards need to be applied inproceedings on an appeal of a point of law or onthe leave to appeal on a point of law (BGHZ 158,372, 376 – Druckmaschinentemperierungssystem),is only necessary if it is established that there is atleast some prospect of success in the request fordeclaration of nullity or cancellation.

The Supreme Court denied such circumstances tobe given. Such was not true with regard to therequest for declaration of cancellation of “LemonSymphony”. It is not set forth in the substantiationof the appeal on a point of law on what basis theaction brought to the Court of First Instance hasbeen substantiated and because of whichcircumstances it may be expected with somelikelihood that the Court will rule that the uniformityand stability requirements as laid down in Art. 8 orArt. 9 CPVR are no longer satisfied by “LemonSymphony”. Such presentation cannot becompensated by the fact that the claims in thataction which the breeder of the “Sumost 01” varietyhas been asserting, are briefly outlined in the officialGazette of the European Union.

The same was the case with regard to the requestfor declaration of nullity of the Community plantvariety protection. For it to succeed, it was requiredthat it was established that one of the nullity reasonsas laid down in Art. 20 CPVR was given. However,no argument of the Appellant was set forth whatcircumstances are meant to render such a findingof facts likely. Neither with regard to the discussedtreatment of the examination material with a growthregulator in 1997 nor as regards the examination


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which, according to the Appeal Board’s decision, iscommon practice based on cuttings which havebeen obtained from the plant material madeavailable to the examining office was it set forthwhich concrete facts were meant to justify theconclusion that the characteristics to be taken fromthe variety description do not result from thegenotype of the protected variety. Therefore, it mayremain unsettled whether, due to the rejection ofthe appeal alone, the courts dealing with theinfringement issue are bound by the rejection of therequest for declaration of nullity as long as an actionmay be lodged against the decision of the AppealBoard within the two-month term pursuant to Art.73 para. 5 CPVR, an action which, however, is notafforded a delaying effect as per European law-related provisions (Art. 242 EC).

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NEWSLETTER

UPOV COUNCIL APPIONTS NEW VICE SECRETARY-GENERAL

On March 26, 2010, the Council of the International Union for the Protection of New Varieties of Plants(UPOV) appointed Mr. Peter John Button, a national of the United Kingdom of Great Britain and NorthernIreland, to the post of Vice Secretary-General.

Mr. Button will succeed Mr. Rolf Jördens, a national of Germany, who will vacate the position on December1, 2010, after more than 10 years of service.

The Council took the decision by consensus after having sought the agreement of the Secretary-General,Mr. Francis Gurry, who is also Director General of the World Intellectual Property Organization (WIPO).Mr. Gurry complimented the spirit of cooperation among the 68 members of the Union in this process.

Mr. Button holds a Bachelor of Science, Honours degree in Biological Sciences from the University ofWarwick. Mr. Button has a range of experience in matters concerning plant breeders’ rights from seniorpositions in the private sector and with the Government of the United Kingdom. Since September 2000he has been the Technical Director of UPOV.

UPOV OPEN DAY

UPOV’s First-Ever Open Day was held at the WIPO-UPOV Headquarters, Place des Nations, onJune 5, 2010. The general public was invited to:

“Come and see what UPOV does and discover more about plant varieties. The stand will have a competitionto test your skills in identifying different apple, rose and wheat varieties. We will also provide you withinformation on the role of UPOV in providing and promoting an effective system of plant variety protection,with the aim of encouraging the development of new varieties of plants, for the benefit of society.”

Exhibitors from Meilland Internatinal (Mr. Bruno Etavard), CIOPORA (Mrs. Dominique Thevenon) andDelley Seeds and Plants Ltd, Switzerland (Mr. Wilhelm Wicki), together with UPOV staff, animated theUPOV stand with information and competitions which ensured the success of the event.

Photos: http://www.upov.int/export/sites/upov/en/news/2010/upov_website_photos_winners.pdf

UPOV DISTANCE LEARNING

2010: Session IIDates: November 8 to December (On-line registration from August 1 to September 30, 2010)http://www.upov.int/en/about/training.html


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MEMBERS OF THE UNION

http://www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf

ADDRESSES OF PVP OFFICES

http://www.upov.int/en/about/members/pvp_offices.htm

INDEX OF LEGISLATION PUBLISHED IN PLANT VARIETY PROTECTION

http://www.upov.int/en/publications/npvlaws/index.html

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CALENDAR OF EVENTS 2010/2011

DATES OF MEETINGS IN 2010 (Second semester)

JUNE

Monday, 28 TWC Preparatory WorkshopTuesday, 29 to Friday, July 2 Technical Working Party on Automation and

Computer Programs

JULY

Sunday, 4 TWV Preparatory WorkshopMonday, 5 to Friday, 9 Technical Working Party for Vegetables

SEPTEMBER

Sunday, 19 TWO Preparatory WorkshopMonday, 20 to Friday, 24 Technical Working Party for Ornamental Plants and Forest TreesSunday, 26 TWF Preparatory WorkshopMonday, 27 to Friday, October 1 Technical Working Party for Fruit Crops

OCTOBER

Monday, 18 and Tuesday, 19 Administrative and Legal CommitteeWednesday, 20 Consultative CommitteeThursday, 21 CouncilFriday, 22 Administrative and Legal Committee Advisory Group

PROPOSED DATES OF MEETINGS IN 2011

Council April 8 (afternoon) (extraordinary session)October 20

Consultative Committee April 8 (morning)October 19

Administrative and Legal Committee

April 7October 17 and 18

(Administrative and Legal Committee Advisory Group: October 21)

Technical Committee April 4 (afternoon) to 6(Editorial Committee: January (date to be agreed), April 4 (morning and evening), April 5 (evening))