NEWSLETTER
CHAPTER 1 GENERAL PROVISIONS
Article 1
The issues of the legal protection of plant varieties shall be regulated in this Law, and in particular:
1) | the mode and way of granting and cancellation of the right to legal protection of the variety bred, or discovered and developed by the breeder, and also making commercial use thereof; |
2) | scope of the protection of that right. |
Article 2 | |
1. | For the purpose of this Law: |
1) | variety – shall be taken to mean a grouping of plants or their parts, as far as such parts are capable of producing entire plant, within a single botanical taxon of the lowest known rank: |
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, | |
c) which remains unchanged after repeated propagation or after a particular cycle of propagation or crossings, as given by the breeder; | |
2) | hybrid variety – shall be taken to mean a variety produced each time by crossing of specified plant groupings, in accordance with the method and sequence given by the breeder of this variety; |
3) | hybrid variety component – shall be taken to mean a variety or a plant line used in the process of production of a hybrid variety; |
4) | protected variety – shall be taken to mean a variety, the breeder has the right of legal protection thereto and making commercial use thereof; |
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.
* Text provided by the Polish Authorities on August 10, 2004. The Law was adopted by the Parliament of Poland on June 26, 2003, and entered into force on May 1, 2004, when Poland became a member of the European Union. Article 3
For the procedures in cases of the issues regulated by this Law, the provisions of the Code of Administrative Procedure are applicable, unless otherwise provided for by this Law.
CHAPTER 2
EXCLUSIVE BREEDERS RIGHT TO THE VARIETY
Article 4
Article 5
1) an application has been lodged for the grant of an exclusive right or for the entry into a register of varieties in the Republic of Poland, in other member, associated or third state;
2) has been protected or entered into a register of varieties in the Republic of Poland, in other member, associated or third state;
3) its propagating material or harvested material have been placed on the market;
4) | its description has been published in a publication issued in a member, associated or third state; |
5) | its propagating material is available in commonly accessible variety collections. |
Article 6 |
A variety shall be deemed to be uniform if, taking account of the method of the reproduction specific for that variety, it is sufficiently uniform in its relevant characteristics which are taken into account in the examination of distinctness, as well as any other characteristics used for the variety description.
Article 7
A variety shall be deemed to be stable if its relevant characteristics which are taken into account in the examination of distinctness, as well as any other characteristics used for the variety description, remain unchanged after its propagation.
Aricle 8
1. A variety shall be deemed new if, at the date of application for the grant of an exclusive right its breeder has not sold or otherwise disposed of to others, for commercial purposes, of its propagating material or harvested material or has not given written consent to it:
1) within the territory of the Republic of Poland – earlier than one year before the abovementioned date;
2) in other states:
a) earlier than six years – in the case of trees or of vines,
b) earlier than four years – in the case of other varieties
-before the date of application for the grant of an exclusive right.
2. A variety shall be also deemed to be new if the breeder at the date of application for the grant of an exclusive right:
1) has sold or otherwise disposed of to others:
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.
right – so long as the propagating material remains on the market.
Article 10
Article 11
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
1. The Centre shall publish every two months in its publication, referred to later as the “Polish Gazette”, information on the applications for the grant of an exclusive right, giving the following data:
1) the name, address and domicile of the breeder or the site address;
2) Polish and Latin names of the plant genus or species;
3) the variety denomination as proposed in the application;
4) the date of submission of the application;
5) the consecutive number of the application.
2. The Centre shall make available to breeders, with prejudice to Art. 11 paragraph 5, the documents attached to the application for the grant of an exclusive right and the documents relating to the examination for distinctness, uniformity and stability referred to in Art. 15 paragraph 1.
Article 14
Article 15
Article 16
1. During the DUS testing, the breeder shall be obliged to:
1) make possible for the Centre to:
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.
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.
Article 19
tests as well as for the grant and the maintenance of the exclusive right.
Article 20
- 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;
3) varieties:
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.
2. A variety shall be regarded as derived from the initial variety, if it is distinct from the initial variety and if:
1) is predominantly derived from initial variety or other derived variety from the same initial variety while retaining the essential characteristics resulting from the genotype or a combination of genotypes of the initial variety;
2) its characteristics are consistent with essential characteristics of the initial variety resulting from its genotype or a combination of genotypes, except for differences resulting from the use of the following breeding techniques:
a) selection of natural or induced mutants,
b) selection of new forms from initial varieties,
c) using backcrossings,
d) genetic engineering.
3. The provisions of paragraph 1 and Art. 21 shall not apply to propagating material and harvested material intended for:
1) private, non-commercial purposes;
2) experimental purposes;
3) breeding of new varieties, excluding the varieties referred to in paragraph 1 intend 3, if these varieties are to be used for commercial purposes.
Article 23
1. A holder of agricultural land may, without prejudice to paragraphs 3 and 4, against payment for the breeder, use the harvested material of protected variety as propagating material, excluding hybrid varieties and the varieties created from free crossing of specified lines of allogamous species (synthetic varieties).
2. The right to use the harvested material referred to in paragraph 1, shall apply to variety propagating material of the following plants:
1) wheat;
2) rye;
3) barley;
4) triticale;
5) oats;
6) winter oilseed rape;
7) potato.
1) a breeder and a holder of agricultural land, or
2) a breeder and an organisation representing holders of agricultural land, or
3) an organisation of breeders and a holder of agricultural land, or
4) an organisation of breeders and an organisation representing holders of agricultural land
-and should be lower than the rate of royalty paid for a given category of certified propagating material, set by the breeder of that variety.
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
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:
1) | propagating material; |
2) | harvested material; |
3) | products produced directly from the harvested material; |
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.
2. An appeal to the minister competent for agriculture shall lie from decision on the cancellation of the exclusive right of the breeder.
Article 30
Article 31
1) he applied for the exploitation right from the breeder, who has not introduced the variety propagating material on the market, or
2) the royalty demanded by the breeder is disproportional to the value of the propagating material, or
3) the proposed by the breeder quantity of propagating material is insufficient for the propagation of a given variety in order to place it on the market.
Article 32
1) name, address and domicile of the applicant, or the site address;
2) name, address and domicile of the breeder referred to in Art. 31 paragraph 1, or the site address;
3) specification of the species in the Polish language and in Latin and the denomination of the variety, the applicant applies for;
4) specification of the proposed quantity of variety propagating material necessary for the multiplication;
5) specification of the proposed duration of the compulsory licence;
6) specification of the proposed remuneration to the breeder;
7) indication of an important national economy interest.
4. The application for the grant of a compulsory licence shall be accompanied by the declaration on fixed assets and equipment used for the propagation of the variety, along with description thereof.
Article 33
A compulsory licence right shall include:
1) the name, address and domicile of a person who has been granted the compulsory licence and his site address;
2) the name, address and domicile of the breeder or his site address;
3) specification of the species in Polish language and in Latin and the denomination of the variety;
4) specification of the duration of an the licence;
5) specification of the amount of the remuneration to the breeder;
6) specification of the quantity of propagating material needed for the multiplication of the variety in order to place it on the market.
Article 34
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) 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
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 3 PENAL PROVISIONS | |
---|---|
Article 37 | |
1. | Any person who: |
1) | violates a variety exclusive right of the breeder; |
2) | designates propagating material or harvested material of other or unknown variety with the denomination of a variety protected with the exclusive right; |
3) | makes impossible carrying out of the check of a variety maintenance; |
4) | makes impossible access into the documents concerning the variety maintenance; |
5) | does not supply variety propagating material to the Centre for the DUS tests or the entity which has been granted compulsory licence, or delivers it in quantities insufficient or after an established deadline; |
6) | does not provide, upon request of the breeder, whose variety is protected with the exclusive right, written information on the quantities of the protected variety propagating material; |
7) | does not pay royalty to the breeder for using of propagating material and/or remuneration for using of harvested material of the protected variety |
-shall be liable to a fine.
2. The decisions in the cases specified in paragraph 1 shall be made in accordance with the Code of Petty Offences Procedure.
CHAPTER 4 TRANSITIONAL AND FINAL PROVISIONS
Article 38
The compulsory licences issued on the basis of the provisions so far in force shall be valid until the end of the period for which they were issued.
Article 39
The register and the list, kept on the basis of the provisions so far in force, with the day of entry into force of this Law shall become accordingly the register and the list as understood in this Law.
Article 40
This Law shall enter into force on the day, on which the Republic of Poland shall receive the membership in the European Union.