CHAPTER IV

APPLICATION FOR THE GRANT OF THE BREEDER'S RIGHT

 

Article 10

Filing of Applications

(1)

[Place of first application] The breeder may choose the Contracting Party with whose authority he wishes to file his first application for a breeder's right.

(2)

[Time of subsequent applications] The breeder may apply to the authorities of other Contracting Parties for the grant of breeders' rights without waiting for the grant to him of a breeder's right by the authority of the Contracting Party with which the first application was filed.

(3)

[Independence of protection] No Contracting Party shall refuse to grant a breeder's right or limit its duration on the ground that protection for the same variety has not been applied for, has been refused or has expired in any other State or intergovernmental organization.
 

Article 11

Right of Priority

(1)

[The right; its period] Any breeder who has duly filed an application for the protection of a variety in one of the Contracting Parties (the "first application") shall, for the purpose of filing an application for the grant of a breeder's right for the same variety with the authority of any other Contracting Party (the "subsequent application"), enjoy a right of priority for a period of twelve months. This period shall be computed from the date of filing of the first application. The day of filing shall not be included in the latter period.

(2)

[Claiming the right] In order to benefit from the right of priority, the breeder shall, in the subsequent application, claim the priority of the first application. The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from the filing date of the subsequent application, a copy of the documents which constitute the first application, certified to be a true copy by the authority with which that application was filed, and samples or other evidence that the variety which is the subject matter of both applications is the same.

(3)

[Documents and material] The breeder shall be allowed a period of two years after the expiration of the period of priority or, where the first application is rejected or withdrawn, an appropriate time after such rejection or withdrawal, in which to furnish, to the authority of the Contracting Party with which he has filed the subsequent application, any necessary information, document or material required for the purpose of the examination under Article 12, as required by the laws of that Contracting Party.

(4)

[Events occurring during the period] Events occurring within the period provided for in paragraph (1), such as the filing of another application or the publication or use of the variety that is the subject of the first application, shall not constitute a ground for rejecting the subsequent application. Such events shall also not give rise to any third-party right.
 

Article 12

Examination of the Application

Any decision to grant a breeder's right shall require an examination for compliance with the conditions under Article 5 to Article 9. In the course of the examination, the authority may grow the variety or carry out other necessary tests, cause the growing of the variety or the carrying out of other necessary tests, or take into account the results of growing tests or other trials which have already been carried out. For the purposes of examination, the authority may require the breeder to furnish all the necessary information, documents or material.

 

Article 13

Provisional Protection

Each Contracting Party shall provide measures designed to safeguard the interests of the breeder during the period between the filing or the publication of the application for the grant of a breeder's right and the grant of that right. Such measures shall have the effect that the holder of a breeder's right shall at least be entitled to equitable remuneration from any person who, during the said period, has carried out acts which, once the right is granted, require the breeder's authorization as provided in Article 14. A Contracting Party may provide that the said measures shall only take effect in relation to persons whom the breeder has notified of the filing of the application.

 

CHAPTER V

THE RIGHTS OF THE BREEDER

 

Article 14

Scope of the Breeder's Right

(1)

[Acts in respect of the propagating material]
 

(a)

Subject to Article 15 and Article 16, the following acts in respect of the propagating material of the protected variety shall require the authorization of the breeder:
 
 

(i)

 production or reproduction (multiplication),
 
 

(ii)

 conditioning for the purpose of propagation,
 
 

(iii)

 offering for sale,
 
 

(iv)

 selling or other marketing,
 
 

(v)

 exporting,
 
 

(vi)

 importing,
 
 

(vii)

 stocking for any of the purposes mentioned in (i) to (vi), above.
 

(b)

The breeder may make his authorization subject to conditions and limitations.

(2)

[Acts in respect of the harvested material] Subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material.

(3)

[Acts in respect of certain products] Each Contracting Party may provide that, subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of products made directly from harvested material of the protected variety falling within the provisions of paragraph (2) through the unauthorized use of the said harvested material shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said harvested material.

(4)

[Possible additional acts] Each Contracting Party may provide that, subject to Article 15 and Article 16, acts other than those referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) shall also require the authorization of the breeder.

(5)

[Essentially derived and certain other varieties]
 

(a)

The provisions of paragraph (1) to paragraph (4) shall also apply in relation to
 
 

(i)

 varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety,
 
 

(ii)

 varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and
 
 

(iii)

 varieties whose production requires the repeated use of the protected variety.
 

(b)

For the purposes of subparagraph (a)(i), a variety shall be deemed to be essentially derived from another variety ("the initial variety") when
 
 

(i)

 it is predominantly derived from 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,
 
 

(ii)

 it is clearly distinguishable from the initial variety and
 
 

(iii)

 except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.
 

(c)

Essentially derived varieties may be obtained for example 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.
 

Article 15

Exceptions to the Breeder's Right

(1)

[Compulsory exceptions] The breeder's right shall not extend to
 

(i)

 acts done privately and for non-commercial purposes,
 

(ii)

 acts done for experimental purposes and
 

(iii)

 acts done for the purpose of breeding other varieties, and, except where the provisions of Article 14(5) apply, acts referred to in Article 14(1) to Article 14(4) in respect of such other varieties.

(2)

[Optional exception] Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii).
 

Article 16

Exhaustion of the Breeder's Right

(1)

[Exhaustion of right] The breeder's right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of Article 14(5), which has been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned, or any material derived from the said material, unless such acts
 

(i)

 involve further propagation of the variety in question or
 

(ii)

 involve an export of material of the variety, which enables the propagation of the variety, into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes.

(2)

[Meaning of "material"] For the purposes of paragraph (1), "material" means, in relation to a variety,
 

(i)

 propagating material of any kind,
 

(ii)

 harvested material, including entire plants and parts of plants, and
 

(iii)

 any product made directly from the harvested material.

(3)

["Territory" in certain cases] For the purposes of paragraph (1), all the Contracting Parties which are member States of one and the same intergovernmental organization may act jointly, where the regulations of that organization so require, to assimilate acts done on the territories of the States members of that organization to acts done on their own territories and, should they do so, shall notify the Secretary-General accordingly.
 

Article 17

Restrictions on the Exercise of the Breeder's Right

(1)

[Public interest] Except where expressly provided in this Convention, no Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest.

(2)

[Equitable remuneration] When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration.
 

Article 18

Measures Regulating Commerce

The breeder's right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material. In any case, such measures shall not affect the application of the provisions of this Convention.

 

Article 19

Duration of the Breeder's Right

(1)

[Period of protection] The breeder's right shall be granted for a fixed period.

(2)

[Minimum period] The said period shall not be shorter than 20 years from the date of the grant of the breeder's right. For trees and vines, the said period shall not be shorter than 25 years from the said date.
 
Prev pageNext page
1234
 

CHAPTER IV

APPLICATION FOR THE GRANT OF THE BREEDER'S RIGHT

 

Article 10

Filing of Applications

(1)

[Place of first application] The breeder may choose the Contracting Party with whose authority he wishes to file his first application for a breeder's right.

(2)

[Time of subsequent applications] The breeder may apply to the authorities of other Contracting Parties for the grant of breeders' rights without waiting for the grant to him of a breeder's right by the authority of the Contracting Party with which the first application was filed.

(3)

[Independence of protection] No Contracting Party shall refuse to grant a breeder's right or limit its duration on the ground that protection for the same variety has not been applied for, has been refused or has expired in any other State or intergovernmental organization.
 

Article 11

Right of Priority

(1)

[The right; its period] Any breeder who has duly filed an application for the protection of a variety in one of the Contracting Parties (the "first application") shall, for the purpose of filing an application for the grant of a breeder's right for the same variety with the authority of any other Contracting Party (the "subsequent application"), enjoy a right of priority for a period of twelve months. This period shall be computed from the date of filing of the first application. The day of filing shall not be included in the latter period.

(2)

[Claiming the right] In order to benefit from the right of priority, the breeder shall, in the subsequent application, claim the priority of the first application. The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from the filing date of the subsequent application, a copy of the documents which constitute the first application, certified to be a true copy by the authority with which that application was filed, and samples or other evidence that the variety which is the subject matter of both applications is the same.

(3)

[Documents and material] The breeder shall be allowed a period of two years after the expiration of the period of priority or, where the first application is rejected or withdrawn, an appropriate time after such rejection or withdrawal, in which to furnish, to the authority of the Contracting Party with which he has filed the subsequent application, any necessary information, document or material required for the purpose of the examination under Article 12, as required by the laws of that Contracting Party.

(4)

[Events occurring during the period] Events occurring within the period provided for in paragraph (1), such as the filing of another application or the publication or use of the variety that is the subject of the first application, shall not constitute a ground for rejecting the subsequent application. Such events shall also not give rise to any third-party right.
 

Article 12

Examination of the Application

Any decision to grant a breeder's right shall require an examination for compliance with the conditions under Article 5 to Article 9. In the course of the examination, the authority may grow the variety or carry out other necessary tests, cause the growing of the variety or the carrying out of other necessary tests, or take into account the results of growing tests or other trials which have already been carried out. For the purposes of examination, the authority may require the breeder to furnish all the necessary information, documents or material.

 

Article 13

Provisional Protection

Each Contracting Party shall provide measures designed to safeguard the interests of the breeder during the period between the filing or the publication of the application for the grant of a breeder's right and the grant of that right. Such measures shall have the effect that the holder of a breeder's right shall at least be entitled to equitable remuneration from any person who, during the said period, has carried out acts which, once the right is granted, require the breeder's authorization as provided in Article 14. A Contracting Party may provide that the said measures shall only take effect in relation to persons whom the breeder has notified of the filing of the application.

 

CHAPTER V

THE RIGHTS OF THE BREEDER

 

Article 14

Scope of the Breeder's Right

(1)

[Acts in respect of the propagating material]
 

(a)

Subject to Article 15 and Article 16, the following acts in respect of the propagating material of the protected variety shall require the authorization of the breeder:
 
 

(i)

 production or reproduction (multiplication),
 
 

(ii)

 conditioning for the purpose of propagation,
 
 

(iii)

 offering for sale,
 
 

(iv)

 selling or other marketing,
 
 

(v)

 exporting,
 
 

(vi)

 importing,
 
 

(vii)

 stocking for any of the purposes mentioned in (i) to (vi), above.
 

(b)

The breeder may make his authorization subject to conditions and limitations.

(2)

[Acts in respect of the harvested material] Subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material.

(3)

[Acts in respect of certain products] Each Contracting Party may provide that, subject to Article 15 and Article 16, the acts referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) in respect of products made directly from harvested material of the protected variety falling within the provisions of paragraph (2) through the unauthorized use of the said harvested material shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said harvested material.

(4)

[Possible additional acts] Each Contracting Party may provide that, subject to Article 15 and Article 16, acts other than those referred to in items paragraph (1)(a)(i) to paragraph (1)(a)(vii) shall also require the authorization of the breeder.

(5)

[Essentially derived and certain other varieties]
 

(a)

The provisions of paragraph (1) to paragraph (4) shall also apply in relation to
 
 

(i)

 varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety,
 
 

(ii)

 varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and
 
 

(iii)

 varieties whose production requires the repeated use of the protected variety.
 

(b)

For the purposes of subparagraph (a)(i), a variety shall be deemed to be essentially derived from another variety ("the initial variety") when
 
 

(i)

 it is predominantly derived from 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,
 
 

(ii)

 it is clearly distinguishable from the initial variety and
 
 

(iii)

 except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.
 

(c)

Essentially derived varieties may be obtained for example 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.
 

Article 15

Exceptions to the Breeder's Right

(1)

[Compulsory exceptions] The breeder's right shall not extend to
 

(i)

 acts done privately and for non-commercial purposes,
 

(ii)

 acts done for experimental purposes and
 

(iii)

 acts done for the purpose of breeding other varieties, and, except where the provisions of Article 14(5) apply, acts referred to in Article 14(1) to Article 14(4) in respect of such other varieties.

(2)

[Optional exception] Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii).
 

Article 16

Exhaustion of the Breeder's Right

(1)

[Exhaustion of right] The breeder's right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of Article 14(5), which has been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned, or any material derived from the said material, unless such acts
 

(i)

 involve further propagation of the variety in question or
 

(ii)

 involve an export of material of the variety, which enables the propagation of the variety, into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes.

(2)

[Meaning of "material"] For the purposes of paragraph (1), "material" means, in relation to a variety,
 

(i)

 propagating material of any kind,
 

(ii)

 harvested material, including entire plants and parts of plants, and
 

(iii)

 any product made directly from the harvested material.

(3)

["Territory" in certain cases] For the purposes of paragraph (1), all the Contracting Parties which are member States of one and the same intergovernmental organization may act jointly, where the regulations of that organization so require, to assimilate acts done on the territories of the States members of that organization to acts done on their own territories and, should they do so, shall notify the Secretary-General accordingly.
 

Article 17

Restrictions on the Exercise of the Breeder's Right

(1)

[Public interest] Except where expressly provided in this Convention, no Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest.

(2)

[Equitable remuneration] When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration.
 

Article 18

Measures Regulating Commerce

The breeder's right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material. In any case, such measures shall not affect the application of the provisions of this Convention.

 

Article 19

Duration of the Breeder's Right

(1)

[Period of protection] The breeder's right shall be granted for a fixed period.

(2)

[Minimum period] The said period shall not be shorter than 20 years from the date of the grant of the breeder's right. For trees and vines, the said period shall not be shorter than 25 years from the said date.
 
Prev pageNext page
123

Top of page