قانون 26 يونيو بشأن حماية الأصناف النباتية، بولندا

CHAPTER 1 GENERAL PROVISIONS

Article 1

The issues of the legal protection of plant varieties shall be regulated in this Law, and in particular:

5) plant breeding – shall be taken to mean the activity aimed at developing and maintenance of varieties;

6) variety maintenance– shall be taken to mean the activity aimed at production of propagating material of this variety, which shall assure preservation of its characteristics, uniformity and stability;

7) breeder – shall be taken to mean a person who:

a) bred, or discovered and developed a variety, or

b) is or was the employer or has commissioned the person referred to in intend a to create a variety, or

c) is successor in title of persons referred to in intends a and b;

8) propagating material – shall be taken to mean plants or their parts intended for sowing, planting, grafting, budding or other method of propagation of plants, including the application of biotechnology;

9) harvested material – shall be taken to mean the plants or their parts produced as a result of the cultivation of a specified variety not intended to be used as propagating material;

10) variety examination – shall be taken to mean the testing and assessment of a variety in order to grant its breeder the legal protection to this variety;

11) associated states – shall be taken to mean the states that are the members of the International Union for the Protection of New Varieties of Plants (UPOV);

12) member states – shall be taken to mean the states being the members of the European Union;

13) third countries – shall be taken to mean the states being the non - members of the European Union.

2. The provision of paragraph 1 subparagraph 7 intend ‘a’ shall not be applicable to the persons who bred, or discovered and developed the variety on the basis of an employment contract or other contract, unless otherwise provided for in that contract.

CHAPTER 2

Article 4

Article 5

Article 7

Aricle 8

a) earlier than six years – in the case of trees or of vines,

b) earlier than four years – in the case of other varieties

a) variety propagating material to official bodies subordinated to or supervised by the minister competent for agriculture, which in the framework of their statutory activities, perform the variety examinations, or

b) parts of plants produced as a result of breeding, propagation, or experimental work, other than propagating material,

c) propagating material at an international exhibition organised in accordance with the Convention on International Exhibitions of 22 November 1928 (Journal of Laws of 1961 No 14, item 76 and of 1968 No 42, item 293);

2) has disposed of the propagating material to entities for the continuation of breeding or for performing examinations, or for experiments, provided that the propagating material produced from them shall remain the property of this breeder.

3. The components of a hybrid variety shall be deemed to be new if, at the date of application for the grant of an exclusive right, the hybrid propagating material produced thereof have not been sold by the breeder or otherwise disposed of to others for commercial purposes:

1) within the territory of the Republic of Poland – earlier than one year;

2) in other states – earlier than four years

-before the date of application for the grant of an exclusive right.

Article 9

1. The variety denomination must not:

1) be identical as or similar to the denominations of the varieties in the member, associated or third states, which are or were given to the varieties belonging to the same or another species of this genus, as well as the names protected with an exclusive right or entered in an appropriate variety registers, unless the variety is no longer protected or is not present on the market, and its denomination has not been commonly known;

2) evoke public objection;

3) mislead as to the identity of its breeder, its characteristics or the value for use;

4) be identical as or similar to other designations which are commonly used for the marketing of goods;

5) violate the rights of third parties to trade-marks;

6) contain the words “variety “ or “hybrid variety”;

7) compose exclusively of digits nor start with a digit.

1. In cases where the denomination is inadequate, the Centre shall give the breeder a 14-day period for the submission of a written proposal of another denomination.
2. In cases where a variety is protected with an exclusive right in other associated states, it may be protected in the Republic of Poland under identical denomination.
3. The duty of using the variety denomination shall apply to any person who performs the assessments, offers for sale, sales, disposes of to others, advertises or gives information on its propagating material or harvested material.
4. The variety denomination shall be protected starting from the date of the grant of an exclusive right, and in the case of removal of its entry in the register of protection of exclusive

right – so long as the propagating material remains on the market.

Article 10

1. An exclusive right shall be granted at a request of the breeder or its representative.
2. The breeder’s representative may be private or legal person, or an organisational unit without legal personality that has its domicile or registered seat in the territory of the Republic of Poland, other member, or associated states.
3. If the breeder has its domicile or registered seat in a third state, the application for the grant of an exclusive right shall be filed by his/her representative.

Article 11

1. The application for the grant of an exclusive right shall be lodged at the Centre.
2. The application for the grant of an exclusive right shall include:

1) the name, address and domicile of the breeder or the seat address;

2) Polish and Latin name of the plant genus or species;

3) designation of the variety on the stage of breeding;

4) the proposed denomination of the variety;

5) indication of the country of breeding, or the discovery and development of the variety;

6) declaration of the breeder that the variety is new in accordance with the requirements referred to in Art. 8;

7) declaration of the breeder that the variety has been or has not been genetically modified;

8) information on lodging an application for the protection of an exclusive right in other states.

3. The application referred to in paragraph 2 shall be accompanied by:

1) in cases where the application is filed by the breeder’s representative, the authorisation for the representation of the breeder in all issues relating to the grant of an exclusive right;

2) description of the variety or the hybrid variety components (technical questionnaire);

3) information on the pedigree, scheme of the breeding and the structure of the variety;

4) copy of the receipt for payment of fees for submitting the application for the grant of an exclusive right to the variety.

Article 12

Article 13

Article 14

Article 15

Article 16

a) control the maintenance of the variety,

b) access to the documents relating to the variety maintenance;

2) provide, upon request of the Centre, written clarifications and information necessary for the performance of the DUS tests.

2. The breeder shall be given the possibility to get acquainted with the course and the results of the DUS tests for his variety, and, after the issue of the decision on the grant of an exclusive right, the breeder shall receive a final report of the DUS tests.

Article 17

1. If the Centre does not perform the DUS tests in given species, it may:

1) commission to carry out such tests or their parts to another testing authority, or

2) accept the results of those tests carried out abroad

- at the breeder’s expense, provided that he gives the written consent.

1. The Centre, before commissioning the performance of the DUS tests or before the acceptance of the DUS test results, shall forward to the breeder written information on costs relating to those tests.
2. If a breeder within 30 days of the date of the receipt of the information about the costs referred to in paragraph 2, has not made the payment on the account indicated by the Centre, the application for the grant of an exclusive right shall remain without consideration.

Article 18

1. Any person may lodge with the director of the Centre a written objection to the grant of an exclusive right, if he/she is in possession of documents or information confirming that:

1) the variety does not comply with the conditions referred to in Art. 4 paragraph 1, or

2) the breeder is not authorised for submitting an application for the grant of an exclusive right.

1. The Centre, within 14 days of the date of settlement of the objection to an exclusive right, send written information to the objector on the admittance or the refusal of the objection.
2. Written information referred to in paragraph 2 shall contain the justification indicating the reasons for the admittance or the refusal of the objections to an exclusive right.
3. Notwithstanding the admittance of the objections for the reason referred to in paragraph 1 intend 2, and filing an application for the grant of an exclusive right by an authorised breeder, the results of the DUS tests concerning a given variety shall be acknowledged.

Article 19

tests as well as for the grant and the maintenance of the exclusive right.

1. The fees for the DUS tests shall not be charged, if the breeder bore the costs referred to in Art. 17 paragraph 1.
2. The minister competent for agriculture, in consultation with the minister competent for public finance, shall lay down in a Regulation the rates of fees referred to in paragraph 1, the way and the time limits of payment thereof, taking into account the costs relating to carrying out of the examinations and to the grant of an exclusive right.

Article 20

1. After completion of the DUS tests, the director of the Centre shall make a decision concerning the grant of an exclusive right.
2. If two or more persons bred, or discovered and developed the variety jointly, the exclusive right shall be granted jointly to them.
3. The director of the Centre shall refuse, by an administrative decision, the exclusive right, if a variety is noncompliant with the conditions referred to in Art. 4 paragraph 1.
4. An appeal to the minister competent for agriculture shall lie from decisions relating the grant of the exclusive right. Article 21 The exclusive right shall include: 1) production or reproduction (multiplication); 2) conditioning for the purpose of propagation; 3) offering for sale; 4) selling or other marketing; 5) exporting; 6) importing; 7) stocking

- of the protected variety propagating material. Article 22

1. The exclusive right shall also cover:

1) harvested material or products produced directly from that material, if the breeder had no possibility of exercising of the exclusive right to the protected variety propagating material;

2) propagating material of ornamental and horticulture plants, if they are reused for commercial purposes as:

1. The Centre shall charge fees for submission an application for the grant of the exclusive right, for the DUS

a) reproduction material for the propagation of ornamental plants, or

b) cut flower, or

c) propagating material of trees, bushes and perennials;

a) derived, discovered or produced from a protected initial variety which is not a derived variety,

b) which are not clearly distinct from the protected variety,

c) in those cases where the production of propagating material requires repeated use of a protected variety.

a) selection of natural or induced mutants,

b) selection of new forms from initial varieties,

c) using backcrossings,

d) genetic engineering.

Article 23

9. The provision of paragraph 8 shall not apply to a holder of agricultural land of up to 5 ha, unless the holder of the agricultural land uses harvested material as seed potato of very early and early varieties on the area of more than 1 ha, and in the case of remaining potato varieties on the area of above 2 ha.

Article 24

After the grant of the exclusive right the breeder shall be obliged to:

1) maintain the variety;

2) deliver to the Centre, free of charge, variety propagating material, as well as propagating material of the components used for production of the hybrid variety, in quantities essential for the performance of the DUS tests;

3) provide, upon request of the Centre, information and explanations concerning the variety;

4) enable the Centre to access to the documents related to the variety.

Article 25

Any person who makes use of the propagating material of the protected variety is obliged to, upon request of the breeder holding the exclusive right to this variety, provide him with written information concerning the quantity of propagating material of the protected variety and make a payment for the breeder equivalent to the royalty for exploitation of the exclusive right to this variety.

Article 26

1. If the breeder has been changed, the new breeder shall be obliged to notify of this fact in writing to the Centre within 30 days of the date, on which this change has taken place.
2. The breeder referred to in paragraph 1 shall attach a copy of the documents confirming his right to the variety.

Article 27

1. The exclusive right shall be effective starting from the date of making a decision on grant and shall last for:

1) 30 years – in the case of vine, trees and potato varieties;

2) 25 years – in the case of other varieties.

2. In cases where a breeder of the variety protected in the Republic of Poland shall be granted the Community plant variety right, the exclusive right granted in the Republic of Poland shall be suspended for the period, throughout which the breeder shall enjoy the Community plant variety right, no longer, however, than for the duration of the exclusive right in the Republic of Poland.

Article 28

1. The exclusive right, without prejudice to paragraph 2, shall expire if:

4) varieties referred to in Art. 22 paragraph 1 intend 3

-shall be sold or otherwise disposed of to others by the breeder or with his written consent.

2. The exclusive right shall not expire if the purchaser of the variety propagating material:

1) shall use it for renewed propagation;

2) shall export it to a country, which do not provide any protection of the exclusive right to the variety of the plant species in question, unless the harvested material shall be used for consumption purposes in that country.

Article 29

1. The director of the Centre shall cancel, in an administrative decision, the exclusive right of the breeder:

1) upon his own request;

2) if the variety does not comply with the conditions of uniformity or stability;

3) if the breeder:

a) does not maintain the variety,

b) is delayed over 6 months with the payment of fees referred to in Art. 19 paragraph 1,

c) renders impossible carrying out of a control of the maintenance of the variety and examination of the documents relating to the variety maintenance,

d) does not provide the information and explanations essential for carrying out of the DUS tests,

e) has not delivered, free of charge, the variety propagating material in quantities indispensable for carrying out of the DUS tests,

f) does not submit a new denomination to the variety in case where the denomination of the variety entered into the register of granted titles of exclusive rights referred to in Art. 36 paragraph 1, does not comply with the conditions listed in Art. 9 paragraph 1.

Article 30

Article 31

Article 32

Article 33

Article 34

1. The minister competent for agriculture shall notify in writing to the director of the Centre on issuing of the decision on the grant of a compulsory licence.
2. The Centre shall publish in its Gazette information on compulsory licences granted.
3. The breeder referred to in Art. 31 paragraph 1 shall be obliged, within 30 days of the date of receipt of written information on issuing of the decision on the grant of a compulsory licence, provide to the holder of a compulsory licence the variety propagating material in quantities indispensable for the propagation of this variety in order to place it on the market.

Article 35

1. The minister competent for agriculture:

1) shall cancel a compulsory licence if the holder of the compulsory licence has not placed on the market the variety propagating material covered by the compulsory licence in the nearest growing period following the grant of the compulsory licence;

2) may cancel the compulsory licence on the request of the breeder referred to in Art. 31 paragraph 1, if the breeder placed on the market variety propagating material or harvested material of a variety covered by the granted compulsory licence.

1. The request referred to in paragraph 1 intend 2 shall be accompanied by a copy of documents evidencing that the breeder placed the propagating material on the market.
2. The minister competent for agriculture may cancel the compulsory licence in the case referred to paragraph 1 intend 2, if since the day of issuing of the decision, elapsed:

1) 2 years – in the case of annual varieties, or

2) 3 years – in the case of biennial varieties, or

3) 5 years – in the case of perennial varieties.

Article 36

1. The Centre shall keep a register of granted titles of exclusive rights, hereinafter referred to as the “register”, and a list of varieties, for which applications for the grant of an exclusive right have been filed, hereinafter referred to as the “list”.
2. The register shall contain specification of the protected varieties and their breeders as well as the licensees, who were granted a compulsory licence.

1. The list is a specification of the varieties for which applications for the grant of the exclusive right have been filed as well as the breeders who were granted the provisional exclusive rights.
2. A variety entered into the list or the register shall receive a number, which consists of the consecutive number taken from the list or from the register and a capital letter standing for a given group of plants.
3. The variety number on the list shall be preceded additionally by capital letter T, which means that the variety has been granted the provisional exclusive right.
   1. The following letter designations shall be used for individual plant groups: 1) R – agricultural plants; 2) W – vegetables; 3) S – fruit plants; 4) L – forest plants;
   2. 5) O – ornamental plants; 6) P – other plants.
4. The register shall contain: 1) the name, address and domicile of the breeder, or the site address; 2) the species name in Polish and in Latin and the variety

denomination; 3) the date of the grant and expiry of an exclusive right; 4) the designation of the breeder’s country; 5) information indicating whether or not the variety has been

genetically modified.

8. The list shall contain: 1) the name and address and domicile of the breeder, or the site address; 2) the species name in Polish and in Latin and the variety denomination; 3) the date of the grant and expiry of a provisional exclusive

right; 4) the designation of the breeder’s country; 5) information indicating whether or not the variety has been

genetically modified.

CHAPTER 4 TRANSITIONAL AND FINAL PROVISIONS

Article 38

Article 39

Article 40