Loi de 1998 portant modification de la loi sur les variétés végétales concernant les droits exclusifs (loi n° 41 de 1998), Irlande

Texte(s) princip(al)(aux)

Anglais Plant Varieties (Proprietary Rights) (Amendment) Act 1998 (Act No. 41 of 1998)

Plant Varieties (Farm Saved Seed) Regulations, 2000 (S.I. No. 493 of 2000)

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

Plant Varieties (Proprietary Rights) (Amendment) Act of November 16, 1998 with

date of entry into force of December 14, 2000

Number 41 of 1998

PLANT VARIETIES (PROPRIETARY RIGHTS) (AMENDMENT) ACT, 1998

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2.Amendment of section 1 of Principal Act.

3.Amendment of section 2 of Principal Act.

4.Amendment of section 3 of Principal Act.

5.Amendment of section 4 of Principal Act.

6.Amendment of section 5 of Principal Act.

7.Amendment of section 6 of Principal Act.

8.Amendment of section 7 of Principal Act.

9.Amendment of section 8 of Principal Act.

10.Amendment of section 11 of Principal Act.

11.Amendment of section 12 of Principal Act.

12.Amendment of section 23 of Principal Act.

13.Amendment of section 25 of Principal Act.

14.Amendment of First Schedule to Principal Act.

15.Application for plant breeders’ rights.

16.Limitation of protection.

17.Authorisation of holder.

18.Authorisation required for certain acts, etc.

19.Authorisation not required for certain acts, etc.

20. Information notice.

21.Action for infringement of plant breeders’ rights.

22.Transitional provisions.

23.Repeals and miscellaneous amendments.

24.Short title, collective citation, construction and commencement.

SCHEDULE

Act Referred to

Plant Varieties (Proprietary Rights) Act, 1980 1980, No. 24

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

Number 41 of 1998

PLANT VARIETIES (PROPRIETARY RIGHTS) (AMENDMENT) ACT, 1998

AN ACT TO AMEND AND EXTEND THE PLANT VARIETIES (PROPRIETARY RIGHTS) ACT, 1980 ,

AND TO PROVIDE FOR RELATED MATTERS. [16th November, 1998]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

INTERPRETATION.

1.—(1) In this Act, except where the context otherwise requires—

“the Acts” means the Principal Act and this Act;

“authorisation” has the meaning assigned to it by section 17 ;

“the Convention” means the International Convention for the Protection of New Varieties of

Plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23,

1978, and on March 19, 1991;

“the Council Regulation” means Council Regulation (EC) No. 2100/94 of 27 July 1994(1) on

Community plant variety rights;

“essentially derived variety” has the meaning assigned to it by section 4 of the Principal Act,

(inserted by section 5 );

“holder” has the meaning assigned to it by section 15 ;

“hybrid variety” has the meaning assigned to it by section 4 of the Principal Act, (inserted by

section 5 );

“information notice” has the meaning assigned to it by section 20 ;

“plant breeders’ rights” has the meaning assigned to it by section 4 of the Principal Act, (as

amended by section 5 );

“the Principal Act” means the Plant Varieties (Proprietary Rights) Act, 1980 ;

“protected variety” has the meaning assigned to it by section 15 ;

“unauthorised harvest material” has the meaning assigned to it by section 18 ;

“the Union” means the International Union for the Protection of New Varieties of Plants

founded by the Convention;

“variety of recent creation” has the meaning assigned to it by section 15 ;

“variety which is not clearly distinguishable” has the meaning assigned to it by section 4 of the

Principal Act, (inserted by section 5 ).

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

(2) In this Act—

(a) a reference to a section or a Schedule is a reference to a section of, or a Schedule to,

this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or a paragraph is a reference to the subsection or

paragraph of the provision in which the reference occurs unless it is indicated that

reference to some other provision is intended,

or adapted by or under any subsequent enactment.

(3) In this Act a reference to the Council Regulation shall be construed as a reference to the

Council Regulation as amended, adapted or extended.

AMENDMENT OF SECTION 1 OF PRINCIPAL ACT.

2.— Section 1 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1) of the following definition for the definition of

“variety”:

“‘variety’ means a plant grouping within a single botanical taxon of the lowest

known rank, which grouping, irrespective of whether or not the conditions for the

grant of a plant breeder's right are fully met, may be—

(a) defined by the expression of the characteristics resulting from a given

genotype or combination of genotypes,

(b) distinguished from any other plant grouping by the expression of at least one

of those characteristics, and

concerned remaining unchanged following the propagation;”,

(b) the deletion in subsection (1) of the definitions of “authorisation”, “the Convention”,

“Convention country”, and “holder”,

“‘Contracting Party’ means a state or an intergovernmental organisation which is a

party to the Convention or in respect of which a declaration under section 2 of this

Act has been made;”,

and

(d) the substitution in subsection (2) of the following paragraph for paragraphs (c) and

(d):

“(c) whole plants or parts of plants for planting,”.

AMENDMENT OF SECTION 2 OF PRINCIPAL ACT.

3.— Section 2 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1)—

(i) of “for the protection of intellectual property or any other relevant international

co-operation or agreement for the protection of intellectual property” for “for

the protection of plant varieties and plant breeders’ rights”, and

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

(ii) of “Contracting Party” for “convention country” in each place where it occurs,

and

(b) the substitution in subsection (2) of “Contracting Party” for “convention country”,

and the said subsections (1) and (2), as so amended, are set out in the Table to this section.

TABLE

(1) For the purposes of enabling any international convention or agreement for the

protection of intellectual property or any other relevant international co-operation or

agreement for the protection of intellectual property to which the State is a party to be

carried into effect, the Government may by order declare one or more foreign countries,

which foreign country, or each of which foreign countries, shall be one whose government

or any of whose departments of state is a party to the convention or agreement, to be a

Contracting Party for the purposes of this Act, and for so long as the order remains in force

any foreign country which is one specified in the declaration contained therein shall be a

Contracting Party for the purposes of this Act.

(2) An order under this section may provide that the declaration contained therein shall

extend to any territory for the foreign relations of which the government of a foreign

country specified in such declaration considers itself responsible, and in case an order

under this section so provides then for so long as the order is in force as regards that

foreign country the territory to which the declaration is so extended shall for the purposes

of this Act be regarded as being a Contracting Party.

AMENDMENT OF SECTION 3 OF PRINCIPAL ACT.

4.— Section 3 of the Principal Act is hereby amended in subsection (12) by the insertion of

the following paragraph after paragraph (c):

“(d) authorise the Controller to make arrangements for the supervision of, the acquisition

of or access to the findings of tests, trials or examinations in relation to plant

breeders’ rights carried out by an applicant on the premises of that applicant or,

subject to the consent of the Controller, any other premises,”.

AMENDMENT OF SECTION 4 OF PRINCIPAL ACT.

5.—The Principal Act is hereby amended by the substitution of the following section for

section 4 :

“Plant breeders' rights.

4.— (1) In this Act ‘plant breeders’ rights’ means all proprietary rights in relation

to any variety of any plant genus or species which has been independently bred or

discovered and developed.

(2) Plant breeders’ rights which apply to a protected variety shall also apply to—

(a) a variety which is essentially derived from that protected variety, where

that protected variety is not itself an essentially derived variety,

(b) a variety which, having regard to the First Schedule to this Act (as

amended by section 14 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998) is not clearly distinguishable from that

protected variety, and

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

(3) Subsection (2) shall not apply to an essentially derived variety which was

known to exist before the coming into operation of this Act.

(4) In this Act—

‘essentially derived variety’ means a variety that is essentially derived from another

variety if—

(a) the essentially derived variety is predominantly derived from that other

variety (in this Act referred to as the ‘initial variety’) or from a variety

that is itself predominantly derived from the initial variety, while retaining

the expression of the essential characteristics that result from the

genotype or combination of genotypes of the initial variety,

(b) it is clearly distinguishable from the initial variety,

derivation, to the initial variety in the expression of the essential

characteristics that result from the genotype or combination of genotypes

of the initial variety, and

(d) it may be obtained, without prejudice to the generality of the foregoing, by

the selection of a natural or induced mutant, or of a somaclonal variant,

the selection of a variant individual from plants of the initial variety,

backcrossing, or transformation by genetic engineering;

‘hybrid variety’ means a variety in respect of which the production of such variety

requires the repeated use of the protected variety;

‘variety which is not clearly distinguishable’ means a variety which is not clearly

distinguishable from the protected variety.”.

AMENDMENT OF SECTION 5 OF PRINCIPAL ACT.

6.— Section 5 of the Principal Act is hereby amended in subsection (1) by—

(a) the insertion in paragraph (a) after “or discovered” of “and developed”,

(b) the insertion in paragraph (a) after “duly assigned” of “or a person who bred or

discovered and developed it in the course of his or her employment,”,

(d) the substitution in paragraph (c) of “member of the Union” for “party to the

Convention”,

(e) the insertion in paragraph (c) after “ section 2 of this Act applies” of “and a member of

the Union means a state party to the International Convention for the Protection of

New Varieties of Plants of 1961, 1972 or 1978 or a Contracting Party”, and

(f) the insertion of the following subsection after subsection (3):

“(4) Where an application for a grant of plant breeders’ rights is made by a

person who bred or discovered and developed a variety in the course of his or her

employment, the Controller, in determining such application, shall have regard to—

(a) an agreement, if any, between that person and the employer concerning the

entitlement to apply for a grant of plant breeders’ rights, and

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

(b) any statutory provisions concerning the relationship between employer and

employee for the time being in force in—

(i) the country or territory in which such employee is wholly or mainly

employed, or

(ii) where the identity of such country or territory cannot be determined, the

country or territory in which the business of such employer is situate.”.

AMENDMENT OF SECTION 6 OF PRINCIPAL ACT.

7.—(1) Section 6 of the Principal Act is hereby amended by—

(a) the substitution of the following subsection for subsection (1):

“(1) Where two or more applications are made for plant breeders’ rights for the

same variety, the Controller, in considering the order of precedence of such

applications, shall have regard to the date of receipt of the applications concerned

and, subject to subsection (2) of this section, shall consider the application, having

regard to the date of receipt, which was the first such application received by the

Controller.”,

and

(b) the substitution of the following subsection for subsection (2):

“(2) Where the applications referred to in subsection (1) of this section were

received by the Controller on the same date and the time of such receipt on such

date cannot be established, the applications concerned shall rank equally in order of

precedence.”.

(2) Section 6 of the Principal Act is hereby amended in subsection (3) by—

(a) the substitution in paragraph (a) of “Contracting Party” for “convention country”,

(b) the substitution in paragraph (e) of “may be received” for “is received”,

(d) the substitution of “as aforesaid.” for “as aforesaid, and, accordingly,”, and

(e) the deletion of all words from “the fact that another applicant” to the end of the

subsection.

(3) Section 6 of the Principal Act is hereby amended by—

(a) the substitution in subsection (4) of “the period of two years” for “the period of four

years”, and

(b) the substitution in subsection (5) of “the period of three years” for “the period of five

years”.

AMENDMENT OF SECTION 7 OF PRINCIPAL ACT.

8.—The Principal Act is hereby amended by the substitution of the following section for

section 7 :

“Protection of applicants while application pending.

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

7.— (1) The holder shall, following the grant of plant breeders’ rights, be

entitled to compensation from any person who has in the relevant period

performed any act which such person would be prohibited from performing after

the grant of plant breeders’ rights.

(2) In this section the ‘relevant period’ means the period beginning on the day

on which the application for the grant of plant breeders’ rights is published in the

Journal and ending on the date of the grant of such plant breeders’ rights.”.

AMENDMENT OF SECTION 8 OF PRINCIPAL ACT.

9.— Section 8 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1) of “satisfies him that, in relation to the public

interest,” for “satisfies him that”,

(b) the deletion in subsection (1) of “referred to in section 4 (5)(d) of this Act,”, and

entered in the register)” and “by a holder”,

and the said subsections (1) and (2), as so amended, are set out in the Table to this section.

TABLE

(1) Subject to the provisions of this section, if any person applies to the Controller and

satisfies him that, in relation to the public interest, a holder has unreasonably refused to

grant to the applicant an authorisation or, in granting or offering to grant such an

authorisation, has imposed or put forward terms which are either unreasonable or contrary

to the public interest, the Controller shall, if he is satisfied that the applicant is in a

position, and intends, to exercise rights in a competent manner which would be conferred

by such an authorisation, grant to the person in the form of a licence any such rights as

respects the relevant plant variety as might have been granted by the holder.

(2) Subject to the provisions of this section, if any person satisfies him that it is in the

public interest that a particular plant variety specified by the person has been distributed in

a manner which is not in the public interest or that such a plant variety should be widely

distributed, or that it is otherwise in the public interest to do so, the Controller shall grant

to the person in the form of a licence any rights as respects that variety as may be granted

by the relevant holder.

AMENDMENT OF SECTION 11 OF PRINCIPAL ACT.

10.— Section 11 of the Principal Act is hereby amended by—

(a) the substitution of the following subsection for subsection (1):

“(1) The Controller may—

(a) declare the grant of plant breeders’ rights null and void where the Controller

is satisfied that—

(i) the protected variety concerned did not, at the time of the grant, comply

with the conditions specified in either or both paragraph 1 or paragraph 4

of the First Schedule to this Act (as amended by section 14 of the Plant

Varieties (Proprietary Rights) (Amendment) Act, 1998),

(ii) the protected variety concerned did not, at the time of the grant, comply

with the conditions specified in either or both paragraph 2 or paragraph 3

of the First Schedule to this Act (as amended by section 14 of the Plant

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

Varieties (Proprietary Rights) (Amendment) Act, 1998) where such grant

was obtained on the basis of information or documents or both furnished

by the applicant, and

(iii) the plant breeders’ rights were granted to a holder who was not entitled

to such grant,

but no such declaration shall be made under subparagraph (iii) of this

paragraph if the plant breeders’ rights concerned have been transferred to

the holder by the person properly entitled to such grant,

(b) cancel plant breeders’ rights in relation to a protected variety if the

Controller is satisfied that in relation to such protected variety concerned the

conditions specified in either or both paragraphs 2 and 3 of the First

Schedule to this Act (as amended by section 14 of the Plant Varieties

(Proprietary Rights) (Amendment) Act, 1998) are not being complied with,

holder fails, refuses or neglects to pay such fees as may be required to

maintain the grant of the plant breeders’ rights concerned, or

(d) cancel plant breeders’ rights of a protected variety if the holder does not

propose another suitable denomination where the denomination of the

protected variety concerned is cancelled.”,

(b) the substitution in subsection (2) of “cancel” for “revoke” and of “cancellation” for

“revocation” in each place where it occurs, and

“revocation”.

AMENDMENT OF SECTION 12 OF PRINCIPAL ACT.

11.— Section 12 of the Principal Act is hereby amended in subsection (5) by the substitution

of the following paragraph for paragraph (b):

“(b) For the purposes of this section the Minister may prescribe classes and species to

which varieties belong.”.

AMENDMENT OF SECTION 23 OF PRINCIPAL ACT.

12.— Section 23 of the Principal Act is hereby amended by—

(a) the substitution in subsections (1), (2) and (3) of “£1,500” for “£500” in each place

where it occurs, and

(b) the insertion after subsection (1) of the following subsection:

“(1A) If a person falsely represents that he or she is entitled to exercise any

Community plant variety rights granted under the Council Regulation, in relation to

any plant variety and in respect of which Community plant variety rights have or

have not been granted under the Council Regulation, and that person knows that

the representation is false or makes the representation recklessly, he or she shall be

guilty of an offence and shall be liable on summary conviction to a fine not

exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not

exceeding three months or to both such fine and such imprisonment.”.

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

AMENDMENT OF SECTION 25 OF PRINCIPAL ACT.

13.— Section 25 of the Principal Act is hereby amended in subsection (1) by the insertion of

the following paragraphs after paragraph (d):

“(e) such fees in respect of any test or examination concerning genetically modified plant

varieties,

(f) such fees in respect of the supervision of any test or examination where such test or

examination is carried out on the premises of the breeder concerned or other

premises in agreement with the Minister,

(g) such administrative costs as may be incurred by the Controller concerning applications

under the Council Regulation, and

(h) such other fees,”.

AMENDMENT OF FIRST SCHEDULE TO PRINCIPAL ACT.

14.— The First Schedule to the Principal Act is hereby amended by—

(a) the substitution of the following paragraph for paragraph 1:

“Distinctness.

1. (1) The plant variety concerned—

(a) is not a matter of common knowledge at the time that application for

plant breeders’ rights is made, and

(b) is clearly distinguishable from any other plant variety the existence of

which is a matter of common knowledge at the time such application

is made,

and the distinguishing characteristic of that plant variety is recognisable and is

capable of description and recognition.

(2) For the purposes of this paragraph, common knowledge of a plant variety

shall be established when an application is made—

(a) for the grant of plant breeder's rights, or

(b) to enter the plant variety concerned in an official register of plant

varieties in any country or territory which is a Contracting Party.”,

(b) the substitution of the following paragraph for paragraph 2:

“Uniformity.

2. The plant variety concerned is sufficiently uniform in respect of the

characteristic concerned notwithstanding any variation arising from the

propagation of such plant variety.”,

“Stability.

3. The characteristic of the plant variety concerned does not alter—

(a) after repeated propagation, or

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

(b) where there is a particular cycle of propagation, at the end of each

such cycle.”,

and

(d) the substitution of the following paragraph for paragraph 4:

“Novelty.

4. Propagating or harvested material of the plant variety concerned, has not,

on the date on which an application for plant breeders’ rights is made, been sold

or otherwise disposed of to others, by or with the consent of the applicant, for

the purposes of exploitation of such plant variety either—

(a) in the State for a period that is greater than one year before the date

of an application for plant breeders’ rights, or

(b) in a territory other than that of the Contracting Party for a period that

is greater than four years, or in the case of trees or vines, for a period

that is greater than six years before that date.”.

Application for plant breeders’ rights.

15.—(1) A person may, subject to the provisions of the Acts, apply to the Controller for a

grant of plant breeders’ rights in relation to a variety of any plant genus or species and such

application shall be accompanied by the prescribed fee.

(2) Where, following an application under subsection (1), the Controller makes a grant of

plant breeders’ rights in relation to a variety (in the Acts referred to as the “protected

variety”), the Controller shall as soon as may be—

(a) issue under the seal of the Controller a certificate in the prescribed form specifying the

name of the variety of plant genus or species concerned,

(b) publish a notice of the granting of the certificate referred to in paragraph (a) in the

Journal, and

and the person to whom such plant breeders’ rights are granted shall be known as a “holder”.

(3) A certificate issued under subsection (2) of this section shall, unless the contrary is

shown—

(a) be deemed to be such certificate, and

(b) in any legal proceedings be evidence without further proof of the matters stated

therein.

(4) The minimum period in respect of which plant breeders’ rights may be exercised by a

holder shall—

(a) in respect of trees, vines and potatoes, be not less than 30 years, and

(b) in respect of all other varieties be not less than 25 years,

and each such period shall commence on the date of the grant of the plant breeders’ rights

concerned under this section.

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

100

(5) Subject to subsection (10), the maximum period for which plant breeders’ rights may be

exercised by a holder shall—

(a) in respect of trees, vines and potatoes, be 35 years, and

(b) in respect of all other varieties, be 30 years.

(6) A statement in the register that a species of plant or each of the plants of a specified

group of plants is a fruit tree, forest tree, ornamental tree or grape vine shall, in relation to the

species of plant concerned, be evidence without further proof of the matters stated therein

unless the contrary is shown.

(7) The Minister may make regulations for the purpose of giving effect to this section.

(8) Where, on the date of the coming into operation of this Act, a variety (in this Act

referred to as a “variety of recent creation”) exists but an application for plant breeders’ rights

for the variety concerned has not been made by that date, an application for a grant of plant

breeders’ rights for the variety concerned may be made within the 12 months following the

date of the coming into operation of this Act but such plant breeders’ rights shall not be

granted in respect of the variety concerned if sale or other disposal of that variety has, with

the consent of the applicant, taken place not less than—

(a) 4 years before the coming into operation of this Act, or

(b) 6 years before the coming into operation of this Act if the variety concerned is a tree

or vine.

(9) A holder may assign any plant breeders’ rights granted to him or her under the Acts.

(10) The Controller, when making a grant of plant breeders’ rights, shall not include a

maximum period for the exercise of such plant breeders’ rights unless the plant variety

concerned belongs to a plant genus or species in respect of which an order under subsection

(11) has been made.

(11) The Minister may by order specify the maximum period for the exercise of plant

breeders’ rights of a plant genus or species.

LIMITATION OF PROTECTION.

16.—(1) Plant breeders’ rights shall not apply to any act referred to in section 18 carried out

in relation to any material—

(a) of the protected variety concerned which has been sold or otherwise offered for sale in

the State by the holder or with the consent of the holder, or

(b) of an essentially derived variety which has been sold or otherwise offered for sale in

the State by the holder or with the consent of the holder, or

(2) Subsection (1) shall not apply to an act which involves—

(a) the further propagation of the protected variety concerned, or

(b) the export of any material which enables the propagation of the protected variety into

a country which does not protect varieties of the plant genus or species to which the

protected variety concerned belongs, unless such export is for the purpose of final

consumption.

(3) In this section “material” includes—

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

101

(a) any propagating material of a variety, and

(b) any harvested material of a variety, including entire plants and parts of plants.

AUTHORISATION OF HOLDER.

17.— (1) A holder may grant an authorisation to another person to permit such other

person to carry out any or all of the acts specified in section 18 on a protected variety for

which authorisation is required and may include in such authorisation any conditions,

limitations or restrictions.

(2) A reference to an authorisation under this section is an authorisation in writing which has

been obtained from the holder by the person referred to in subsection (1) prior to the carrying

out of any of the acts for which authorisation is required and “authorisation” shall be construed

accordingly.

AUTHORISATION REQUIRED FOR CERTAIN ACTS, ETC.

18.— (1) A person shall not—

(a) produce, reproduce or cause the multiplication of any propagating material of a

protected variety,

(b) clean, process or otherwise condition any propagating material of a protected variety

for the purpose of propagation,

(d) keep a supply of any propagating material of a protected variety for any of the

purposes specified in paragraph (a), (b) or (c),

unless that person has obtained the authorisation of the holder.

(2) A person shall not—

(a) produce, reproduce or cause the multiplication of unauthorised harvest material of a

protected variety,

(b) clean, process or otherwise condition unauthorised harvest material of a protected

variety for the purpose of propagation,

variety, or

(d) keep a supply of unauthorised harvest material of the protected variety for any of the

purposes specified in paragraph (a), (b) or (c),

unless that person has obtained the authorisation of the holder in relation to the protected

variety concerned or the holder has had a reasonable opportunity to exercise his or her plant

breeder's rights in relation to the unauthorised use of such propagating material.

(3) Where, in accordance with section 4 (2) of the Principal Act (inserted by section 5 ),

plant breeders’ rights apply to a variety specified in either paragraph (a), (b) or (c) of that

section, a person shall not—

(a) produce, reproduce or multiply the propagating material or unauthorised harvest

material,

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

102

(b) clean, process or otherwise condition the propagating material or unauthorised

harvest material,

harvest material, or

(d) keep a supply of the propagating material or unauthorised harvest material for any of

the purposes specified in paragraph (a), (b) or (c),

of that variety unless the holder has given an authorisation in respect of the matters so

specified.

(4) In this Act “unauthorised harvest material” means the material harvested from an

unauthorised use of the propagating material of a protected variety.

AUTHORISATION NOT REQUIRED FOR CERTAIN ACTS, ETC.

19.— (1) An authorisation, in relation to a protected variety, shall not be required for—

(a) any act done for private and non-commercial purposes,

(b) any act done for the purpose of breeding experimentation,

in section 4 (2) of the Principal Act (inserted by section 5 ),

(d) the use by a farmer for propagating purposes of the product of the harvest which that

farmer has obtained from propagating material of the protected variety on lands

owned or occupied by the farmer (in this section referred to as “farm saved seed”)

and the protected variety concerned is a variety of plant genus or species specified

in an order under subsection (2) and such use is referred to in this Act as the “farm

saved seed exemption”.

(2) The Minister may by order specify a variety of any plant genus or species to which the

farm saved seed exemption is to apply and the provisions of section 26 (3) of the Principal Act

shall apply to the making of such order.

(3) The Minister may by order amend or revoke an order made under subsection (2).

(4) Where a farmer uses farm saved seed of a variety specified in an order under subsection

(2), the farmer shall be liable to pay the holder remuneration which shall be sensibly lower,

within the meaning of Article 14.3 of the Council Regulation, than the amount charged for the

production of propagating material of the protected variety concerned.

(5) The obligation to pay the remuneration referred to in subsection (4) shall not apply to a

farmer who is considered, under Article 14.3 of the Council Regulation, to be a small farmer.

(6) The Minister may make regulations generally for the purpose of giving effect to the farm

saved seed exemption and such regulations may contain such incidental, supplementary and

consequential provisions as appear to the Minister to be necessary or expedient for the

purpose of the regulations.

INFORMATION NOTICE.

20.— (1) Where—

(a) a holder has reasonable grounds for believing that harvested material of a protected

variety is being offered for sale, and

(b) an authorisation has not been granted for the carrying out of—

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

103

(i) any act specified in section 18 (1) in respect of the propagating material of the

protected variety, or

(ii) any act specified in section 18 (2) in respect of the unauthorised harvest material

of the protected variety,

the holder may request a person who sells or offers for sale such harvested material to furnish

information, in accordance with this section, in respect of such harvested material.

(2) A holder may serve a notice (in this Act referred to as an “information notice”) on a

person referred to in subsection (1) which shall be in the prescribed form and, without

prejudice to the generality of the foregoing, shall—

(a) state the denomination and species of the plant variety so offered for sale and the

name and address of the holder,

(b) specify the harvested material of the plant variety so offered for sale and to which the

information notice relates,

(i) the name and address of the producer, the supplier and any prior owners of the

harvested material of the plant variety so offered for sale, and

(ii) information concerning the quantity of the harvested material of the plant variety

so offered for sale that was produced, ordered and delivered to that person,

and

(d) require the person to whom it is addressed to furnish the information to the holder

within 21 days of the service of such information notice.

(3) Where an information notice has been served in accordance with this section and the

person on whom such information notice has been served has not furnished or has failed to

adequately furnish the information so requested, for the purposes of proceedings for an

infringement of plant breeders’ rights concerning the offering for sale of the harvested material

of the plant variety specified in the information notice, it shall be presumed that—

(a) the harvested material of the plant variety so offered for sale was obtained by means

of an unauthorised use of the propagating material of the protected variety, and

(b) the holder did not have a reasonable opportunity before the harvested material was

obtained to exercise plant breeders’ rights in relation to the unauthorised use of the

propagating material,

unless the contrary is proved or there are reasonable grounds for not supplying or for failing to

adequately supply the information.

(4) A holder shall not use any information furnished pursuant to an information notice for

any purpose other than—

(a) establishing that there has been an infringement of plant breeders’ rights of the

protected variety referred to in the information notice, or

(b) use in proceedings for infringement of plant breeders’ rights of the protected variety

referred to in the information notice.

(5) An information notice shall be addressed to the person concerned and served on or given

to such person in one of the following ways—

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

104

(a) by addressing it to the person by name and delivering it to that person,

(b) by leaving it at the address at which the person ordinarily resides or carries on any

trade or business or, in a case in which an address for service has been furnished,

at that address, or

person at the address at which that person ordinarily resides or carries on any trade

or business.

ACTION FOR INFRINGEMENT OF PLANT BREEDERS’ RIGHTS.

21.— (1) An infringement of plant breeders’ rights shall be actionable at the suit of the

holder and in any proceedings for such infringement all such relief, by way of damages,

injunction, account or otherwise, as is available in any corresponding proceedings in respect of

any other proprietary rights shall be available.

(2) Where, in civil proceedings for an infringement of plant breeders’ rights concerning an

allegation of the offering for sale of harvested material of a protected variety, an information

notice has been served in accordance with section 20 and the person on whom it was served

did not furnish the information or failed to adequately furnish the information so requested

within the 21 day period so specified, it shall be presumed that the provisions of section 20

(3)(a) or 20 (3)(b) or both shall apply to such proceedings unless, in accordance with that

section, the contrary is proved or the court is satisfied that there were reasonable grounds for

failing to supply or adequately supplying such information.

TRANSITIONAL PROVISIONS.

22.— (1) Where, before the commencement of this Act, an application has been made to

the Controller under section 4 of the Principal Act and a certificate under that section has—

(a) not been issued in respect of that application, or

(b) been issued under that section,

then—

(i) in the case of the application, it shall be deemed to be an application under

section 15 , and

(ii) in the case of the certificate, it shall, for the remainder of the period of operation,

be deemed to have been granted under section 15 .

(2) Where, before the commencement of this Act, an infringement of plant breeders’ rights

occurred and proceedings for such infringement had been issued under section 4 (5) of the

Principal Act, such proceedings shall be continued as if they had been issued under this

section.

(3) Where, before the commencement of this Act, an infringement of plant breeders’ rights

occurred and proceedings for such infringement had not been issued under section 4 (5) of the

Principal Act, such proceedings shall, if issued in respect of such infringement, be deemed to

be issued under this section.

(4) Notwithstanding any other provision of this Act, regulations made under the Principal Act

shall continue in operation and shall be deemed to have been made under this Act and to be

capable of amendment or revocation accordingly.

No. 105 – August 2012 PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER

105

REPEALS AND MISCELLANEOUS AMENDMENTS.

23.—(1) Sections 1 (4), 6 (3) (c), 12 (3) (b) (ii) and 25 (1) (e) of the Principal Act are

hereby repealed.

(2) Each section of or Schedule to the Principal Act specified in column (2) of the Schedule is

hereby amended in the manner specified in column (3) of the Schedule opposite the mention

of that section or that Schedule in column (2).

SHORT TITLE COLLECTIVE CITATION, CONSTRUCTION AND COMMENCEMENT.

24.—(1) This Act may be cited as the Plant Varieties (Proprietary Rights) (Amendment) Act,

1998.

(2) The Principal Act and this Act may be cited together as the Plant Varieties (Proprietary

Rights) Acts, 1980 and 1998, and shall be construed together as one Act.

(3) This Act shall come into operation on such day as the Minister may by order appoint.

SCHEDULE

Section 23 .

Ref.

No.

Section of

Principal Act

Amendment of Principal Act

(1) (2) (3)

1 Section 6 In subsections (3) (b) and (5), “section 15 of the Plant Varieties

(Proprietary Rights) (Amendment) Act, 1998,” is substituted for “

section 4 of this Act”.

2 Section 9 In subsection (2) “specified in section 15 of the Plant Varieties (Proprietary

Rights) (Amendment) Act, 1998” is substituted for “prescribed under

section 4 (10) of this Act”.

3 Section 14 In subsection (1) the deletion of “4 (8), 4 (9),” and “paragraph” is

substituted for “Article”.

4 Section 15 In subsection (1) the deletion of “4” and the insertion after “of this Act” of

“and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)

Act, 1998,”.

5 Section 15 In subsection (1) (a) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.

6 Section 15 In subsection (1) (c) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “the said section 4,”.

7 Section 15 In subsections (1) (e) and (1) (k), “section 15 of the Plant Varieties

(Proprietary Rights) (Amendment) Act, 1998,” is substituted for “

section 4 of this Act”.

8 Section 15 In subsection (1) (f) the deletion of “4” and the insertion after “21 or 22”

of “and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)

Act, 1998,”.

9 Section 16 In subsection (1) the deletion of “except such as falls within any genus or

species which is excluded from this section by regulations made under this

section by the Minister”.

10 Section 16 In subsection (3) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.

PLANT VARIETY PROTECTION GAZETTE AND NEWSLETTER No. 105 – August 2012

106

11 Section 19 In subsection (1) (a), the deletion of “4,” and the insertion after “of this

Act” of “and section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,”.

12 Section 19 In subsection (1) (b) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “section 4” and the insertion

after “or” of “section”.

13 Section 23 In subsection (3) the insertion after “ section 4 of this Act” of “or

section 15 of the Plant Varieties (Proprietary Rights) (Amendment) Act,

1998”.

14 Section 24 In subsection (2) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.

15 Section 25 In subsection (1) (c) “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “ section 4 (3) of this Act”.

16 First Schedule In paragraph 6 “section 15 of the Plant Varieties (Proprietary Rights)

(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.

17 Second

Schedule

In paragraph 1 the deletion of “4” and the insertion after “of this Act” of

“and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)

Act, 1998,”.

18 Second

Schedule

In paragraph 2 “paragraph” is substituted for “Article”.

(1)OJ No. L227/1, 1.9.94.

Texte(s) supplémentaire(s)

Se rapporte à (1 texte(s))

Français Loi de 1998 portant modification de la loi sur les variétés végétales concernant les droits exclusifs (loi n° 41 de 1998)