PARLIAMENT OF THE REPUBLIC OF MOLDOVA
LAW
on the Protection of Plant Varieties*
No. 39XVI of February 29, 2008
Official Gazette (“Monitorul Oficial”) no. 99101/364 of June 6, 2008
MODIFIED
Law of RM No.173 of 25.07.14, OG 231237/08.08.14, Art. 531;
Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392
CONTENTS
Chapter I
GENERAL PROVISIONS
Article 1. Scope and Purpose of the Law
Article 2. Legal framework
Article 3. Definitions
Article 4. Legal Protection of a Variety
Article 5. Authorities Responsible for the Legal Protection of a Variety
Chapter II
SUBSTANTIVE PATENT LAW
Part 1
Patentability of a Variety
Article 6. Conditions for Patentability of a Variety
Article 7. Distinctness
Article 8. Uniformity
Article 9. Stability
Article 10. Novelty
Part 2
Right to Apply For and Obtain a Patent
Article 11. Right to a Patent
Article 12. Varieties Bred or Discovered and Improved in the Course of
Employment
Article 13. Entitlement to File a Patent Application
Article 14. Patent Application Filed by a NonEntitled Person
Part 3
Effects of Patent Protection
Article 15. Rights of the Patent Owner
Article 16. Limitation of Rights of the Patent Owner
Article 17. Exhaustion of Patent Owner’s Rights
Article 18. Use of a Variety Denomination
Article 19. Limitation of Use of a Variety Denomination
Part 4
Term of Validity and Termination of Patent Protection
Article 20. Term of Validity of Patent Protection
Article 21. Nullity of the Patent
Article 22. Action Regarding Nullity of the Patent
Article 23. Effects of Nullity
Article 24. Forfeiture of Patent Owner’s Rights
Article 25. Surrender of Patent
Part 5
Patent Application and Patent as a Subject of Ownership
Article 26. Rights Conferred by a Patent Application after Publication
Article 27. Transfer of Rights
Article 28. Real Rights
Article 29. License Contracts
Article 30. Joint Ownership
Article 31. Compulsory Licenses
Chapter III
PATENT APPLICATION
Part 1
Requirements for Filing a Patent Application
Article 32. Filing of an Application
Article 33. Requirements To Be Met by a Patent Application
Article 34. Language of Procedure
Article 35. Filing Date of the Application
Article 36. Variety Denomination
Part 2
Priority
Article 37. Right of Priority
Article 38. Claiming Priority
Article 39. ReEstablishment of Priority Right
Article 40. Effect of the Right of Priority
Chapter IV
PROCEDURE FOR GRANT OF A PATENT
Part 1
Examination Up to Grant of a Patent
Article 41. Examination of Application
Article 42. Examination as to Form
Article 43. Preliminary Examination
Article 44. Publication of an Application
Article 45. Substantive Examination
Article 46. Technical Examination of a Variety
Article 47. Conduct of Technical Examination
Article 48. Technical Examination Report
Article 49. Objections to a Patent Application
Article 50. AGEPI Decisions
Article 51. Motivation of Decisions
Article 52. Publication of a Decision
Article 53. Withdrawal of Patent Application
Part 2
Appeals Procedure
Article 54. Requirements for Filing an Appeal
Article 55. Examination of an appeal
Article 56. Decision in Relation to an Appeal
Article 57. Means of Appealing the Decisions of the Board of Appeals
Chapter V
PROCEDURE FOR GRANT AND
MAINTENANCE IN FORCE OF A PATENT
Article 58. Grant of Patent
Article 59. Maintenance of Patent
Article 60. Patent Granted to a NonEntitled Person
Article 61. Effects of Change of the Patent Owner
Article 62. Change of Variety Denomination
Article 63. Technical Inspection Article 64. Technical Inspection Report
Chapter VI
INFORMATION OF PUBLIC
Article 65. Information of Public
Article 66. Registers
Article 67. Public Inspection
Article 68. Periodicals
Article 69. Preventive Marking
Chapter VII
ENSURING OBSERVANCE OF RIGHTS
Article 70. Actions for Infringement of Rights
Article 71. Actions Preceding the Grant of a Patent
Article 72. Right to Bring an Action for Infringement of Rights
Article 73. Measures to Preserve Evidence up to Institution of Proceedings
Article 74. Preservation of Evidence in Urgent Cases
Article 75. Invalidity of Measures to Preserve Evidence
Article 76. Presentation and Preservation of Evidence in Proceedings for Infringement of
Rights
Article 77. Right to Information
Article 78. Measures to Ensure the Proceedings for Infringement of Rights
Article 79. Remedial Measures
Article 80. Ensuring Execution of a Court Decision
Article 81. Alternative Measures
Article 82. Compensatory Damages
Article 83. Publication of Court Decisions
Chapter VIII
COMMON PROVISIONS
Article 84. Extension of Time Limits and Reestablishment of Time Limit
Article 85. ReEstablishment of Rights (restitutio in integrum)
Article 86. Right of Subsequent User
Article 87. Representation
Article 88. ExOfficio Examination
Article 89. Oral Proceeding
Article 90. Taking of Evidence
Article 91. Suspension of Proceeding in Court
Article 92. Fees
Article 93. Protection and Testing of Varieties Abroad
Article 94. Competence in Settlement of Disputes
Article 95. Use of Varieties for Production Purposes
Article 96. National Treatment
Chapter IX
FINAL AND TRANSITIONAL PROVISIONS
Article 97. Entry into Force
Article 98. Organization of Enforcement
Parliament shall adopt this organic Law.
This Law shall create the necessary legal framework for the application of the
International Convention for the Protection of New Varieties of Plants of December 2, 1961,
revised at Geneva on November 10, 1972, October 23, 1978, and March 19, 1991, the Council
Regulation (EC) No. 2100/94 of July 27, 1994 on the establishment of a Community policy for the protection of plant varieties, as published in the Official Journal of the European Union
No. L 227 of September 1, 1994, the Council Regulation (EC) No. 2470/96 of December 17,
1996 on the extension of time limits for Community protection of plant varieties for the
potato, as published in the Official Journal of the European Union No. L 335 of December 24,
1996, the Directive No. 98/44/EC of the European Parliament and of the Council of July 6,
1998 on the legal protection of biotechnological inventions, as published in the Official
Journal of the European Union No. L 213 of July 30, 1998, the Directive No. 2004/48/EC of
the European Parliament and of the Council of April 29, 2004 on the enforcement of
intellectual property rights, as published in the Official Journal of the European Union No. L
157 of April 30, 2004, and the Agreement on TradeRelated Aspects of Intellectual Property
Rights (TRIPS), concluded on April 15, 1994.
Chapter I
GENERAL PROVISIONS
Article 1. Scope and Purpose of the Law
(1) This Law shall govern the relations arising out of the creation, legal protection and use
of plant varieties of any genera and species.
(2) The purpose of this Law shall be the establishment of a legal framework for the
organization and functioning of the system of protection of plant varieties.
Article 2. Legal Framework
(1) The relations arising out of the creation, legal protection and use of plant varieties shall
be governed by the Constitution of the Republic of Moldova, the Civil Code, the Code on
Science and Innovations, the Customs Code, international treaties to which the Republic of
Moldova is a party, this Law and other normative acts.
(2) If an international treaty to which the Republic of Moldova is a party has established
norms other than those contained in this Law, then the norms of the international treaty shall
be applied.
Article 3. Definitions
For the purposes of this Law, the terms and expressions below are defined as follows:
“breeder” means a person who has bred or discovered and developed a variety;
“variety” means a plant grouping within a single botanical taxon of the lowest known
rank, which grouping, irrespective of whether the conditions for the grant of a breeder’s right
are fully met, can be
defined by the expression of the characteristics resulting from a given genotype or
combination of genotypes,
distinguished from any other plant grouping by the expression of at least one of the
said characteristics and
considered as a unit with regard to its suitability for being propagated unchanged;
“categories of a variety” means clone, line, or hybrid;
“material of a variety” means seeds, whole plants or various parts of plants which are
capable of reproducing the whole plants;
“applicant” means a natural person or legal entity who applies for the grant of a variety
patent;
“patent owner” means a natural person or legal entity to whom a plant variety patent
belongs;
“genetically modified organism” means any living organism which has a new
combination of genetic material obtained with the assistance of contemporary biotechnology.
Article 4. Legal Protection of a Variety
(1) Rights in a variety may be obtained and enforced on the territory of the Republic of
Moldova by means of a plant variety patent (hereinafter referred to as “the patent”),
granted by the State Agency on Intellectual Property in accordance with this Law and
subregulatory normative acts, and likewise with international treaties in this field, one
of the parties to which is the Republic of Moldova.
(2) The scope of the legal patent protection shall be determined by the sum of essential
characteristics of the variety, as specified in the official description thereof.
Article 5. Authorities Responsible for the Legal Protection of a Variety
(1) The authorities implementing the state policy in the area of legal protection of varieties
are the State Agency on Intellectual Property (hereinafter referred to as AGEPI) and
the State Commission for Plant Varieties Testing (hereinafter referred to as State
Commission). State policy on the use of new varieties in breeding shall be
implemented by the State Commission.
[Art. 5(1) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
(2) AGEPI is the national office in the field of intellectual property protection and the
single authority in the Republic of Moldova which grants legal protection of new plant
varieties.
(3) AGEPI:
a) shall develop drafts of legislative and other normative acts in the field of the protection of plant varieties and ratify acts of a procedural nature which are essential for it to
perform functions established by Law;
b) shall register applications for the grant of a patent (hereinafter referred to as “patent application”) and carry out examinations thereof, grant and issue patents on behalf of
the State, publish official data in the Official Bulletin of Industrial Property of the
Republic of Moldova (hereinafter referred to as BOPI);
c) shall maintain and administer the National Collection of Plant Variety Patents and exchange information with international organizations for the protection of plant
varieties and with appropriate authorities of other countries;
d) shall keep the National Register of Plant Variety Patent Applications (hereinafter referred to as “the National Register of Applications”) and the National Register of
Plant Variety Patents (hereinafter referred to as “the National Register of Patents”),
and shall establish and confirm the procedure by which they are to be maintained.
(4) AGEPI and State Commission shall represent the Republic of Moldova in the
International Union for the Protection of New Varieties of Plants (hereinafter referred
to as “UPOV”), and also in other international and intergovernmental organizations
for the protection of plant varieties, and support bilateral and multilateral cooperation
with them in this field.
(5) The State Commission shall be the authority which carries out the testing of plant
varieties in its variety testing centers, experimental stations, specialized institutions
and laboratories applying methodologies and within the time limits prescribed by
international standards, in order to determine their compliance with the conditions of
patentability, namely distinctness, uniformity and stability, and also the testing of
varieties in order to determine their value for cultivation and use. The State
Commission shall maintain the Catalogue of Plant Varieties, including varieties
approved for cultivation and sale in the Republic of Moldova.
[Art. 5(5) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392].
Chapter II
SUBSTANTIVE PATENT LAW
Part 1
Patentability of a Variety
Article 6. Conditions for Patentability of a Variety
(1) A plant variety shall be patentable only where it is: a) distinct;
b) uniform; c) stable, and d) new
(2) The variety shall be designated with a denomination in accordance with Article 36.
Article 7. Distinctness
(1) The variety shall be deemed to be distinct if it is clearly distinguishable by the
presence of at least one or more relevant features stipulated by a certain genotype or
combination of genotypes, from any other variety whose existence is a matter of common knowledge at the time of the filing of the patent application with the AGEPI, or at the time of
the claimed priority, as applicable.
(2) The distinctness of a variety shall be determined by features which can be displayed
and described precisely.
(3) The variety shall be deemed to be notorious if at the application filing date:
(a) it is protected in the Republic of Moldova or in another country and has been entered into
the official register of protected varieties;
(b) it has been entered in the Catalogue of Plant Varieties of the Republic of Moldova or in
similar registers and reference collections of other countries;
[Art. 7(3)b) in the wording of Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
(c) a registered application exists in the Republic of Moldova for the grant of protection to the
variety or for its entry in the Catalogue of Plant Varieties provided that, as a result of the
application, protection is granted or the variety is entered in the catalogue;
[Art. 7(3)c) in the wording of Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
(d) a registered application exists in another state for the grant of protection to the variety or
for its entry in a catalogue of plant varieties provided that, as a result of the application,
protection is granted or the variety is entered in the catalogue.
[Art. 7(3)d) in the wording of Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
Article 8. Uniformity
A variety shall be deemed to be uniform if, taking into account differences arising as a
result of the particular features of its propagation, plants of the variety remain sufficiently
uniform in the expression of characteristics included in the determination of distinctness of the
variety, and also of other characteristics used to describe the variety.
Article 9. Stability
A variety shall be deemed to be stable if its relevant characteristics for the
determination of its distinctness and any other features used to describe the variety remain
unchanged after repeated propagation, or at the end of each cycle of propagation.
Article 10. Novelty
(1) A variety shall be deemed to be new if at the time of filing of the patent application
with the AGEPI or at the time of the claimed priority, material for the propagation of the
variety or harvested material of the variety has not been sold or put at the disposal of third
parties by the breeder or with his consent for the purposes of commercial exploitation of the
variety:
a) on the territory of the Republic of Moldova, earlier than one year before the filing date of the patent application;
b) on the territory of other States, earlier than four years, and in the case of trees and
vines, earlier than six years before the filing date of the patent application.
(2) The following shall have no bearing on the novelty of a variety as per paragraph (1):
a) making the material of the variety available to an official body in the context of certain legal obligations, or third parties on the basis of an agreement or in the context of any
other legal relations for the purposes of cultivation, reproduction, propagation,
conditioning or storing provided that the breeder is not deprived of the exclusive right
to dispose of material of the variety, and provided that material of the variety has not
been made available for commercial purposes previously, except where such material
of the variety was used repeatedly to obtain hybrids and if the material of the hybrid
and the harvested material of the hybrid were sold;
b) disposal of the material of the variety by one company or firm to another company or
firm of which it is a subsidiary, or if both companies or firms are wholly owned by a
third company or firm, provided that there was no further disposal;
c) disposal without reference to the kind of material of the variety or the harvested material of the variety, obtained from plants which have been cultivated for
experimental purposes or for the purpose of the creation or discovery and
improvement of a variety and which have not been used for fresh reproduction or
propagation;
d) disposal of the material of the variety occurring in the context of the exhibiting of the variety by the breeder at an exhibition which is officially recognized in compliance
with the Convention on International Exhibitions;
e) disposal of the material of the variety in the context of an agreement between the breeder and a third party, according to which the breeder approves the cultivation of
seed material under his supervision.
Part 2
Right to Apply For and Obtain a Patent
Article 11. Right to a Patent
(1) The right to a patent shall belong to a breeder or his successorintitle.
(2) Where the variety has been created or discovered and improved jointly by two or more
breeders, the right to a patent shall belong to them all or to their successorsintitle. The
priority of rights in the variety of each of them shall be established by a written contract
between the breeders. The same priority shall be applied in cases where one or more breeders
discovered the variety, but others improved said variety.
(3) The right to a patent shall likewise belong jointly to a breeder and a certain person (or
certain persons) if the breeder and person (or persons) have declared in writing that they have
agreed to share such a joint right.
(4) Where the right to a patent belongs jointly to two or more persons in accordance with
parts (2) and (3), one person or several of the said persons may, by means of a written
statement, confer the others with the right in the patent.
(5) Where two or more persons created or discovered and improved the same variety
independently of each other, the right to a patent shall belong to the person whose patent
application has the earlier date of filing or priority, assuming it has been granted. This
provision is applied only in cases where the first application was published in accordance with
Article 44.
(6) In the context of procedures conducted by the AGEPI, the applicant is the person
entitled to a patent.
Article 12. Varieties Bred or Discovered and Developed in the Course of Employment:
(1) The right to a patent for a variety bred or discovered and developed by a breeder in the
performance of an employment contract or research contract shall belong to the employer
where the contract between said employer and the breeder has not stipulated otherwise; in this
instance, the breeder shall have the right to commensurate remuneration as prescribed by the
contract. The amount of remuneration shall be determined depending on the profit obtained as
a result of utilizing the variety during the term of validity of the patent to the variety, and on
the value of the variety, and shall comprise not less than 15 per cent of this profit, including
receipts from the sale of licenses.
(2) A variety shall be deemed to have been bred in the course of employment if, in
breeding the variety, the breeder:
a) performed duties entrusted to him by virtue of his position;
b) performed duties specifically entrusted to him for the purpose of breeding a new
variety;
c) made use of material or financial means made available to him by the employer or a person who commissioned the breeding of the variety, as well as of knowledge and
expertise gained in the performance of professional duties.
(3) Where the employer, within 60 days of having been notified by the breeder of the
breeding of the new variety, has not filed an application for a patent or has not assigned his
right to file an application to another person, or has not instructed the breeder in writing to
keep the newly bred variety secret, the breeder shall acquire the right to file a patent
application and to obtain a patent in his own name. The employer shall in that case have a
preferential right to be granted a nonexclusive license to use the variety.
(4) Where the employer has obtained a patent to a variety bred in accordance with
paragraph (1), the employee shall have a preferential right to obtain a nonexclusive license to
use the variety.
(5) Where the parties have not reached agreement regarding the amount of remuneration
to which the employee is entitled, or the value of the license, these grants shall be resolved by a court depending upon the contribution of each party to the breeding of the variety and upon
its commercial value.
(6) The procedure for the breeding and use of varieties by employees shall be established
by the Regulations on Industrial Property Objects, created as part of employment duties, as
approved by the Government.
Article 13. Entitlement to File a Patent Application
(1) The following shall be entitled to file a patent application:
a) natural and legal persons domiciled or with a place of business in the Republic of
Moldova;
b) natural and legal persons domiciled or with a place of business on the territory of a State party to relevant international treaties, a party to which is the Republic of
Moldova;
c) natural and legal persons of any other country, provided that said country grants natural and legal persons domiciled or with a place of business in the Republic of
Moldova protection for varieties of the same botanical taxon which is equivalent to
the protection granted by this Law.
(2) The patent application may be filed by two or more persons complying with the
requirements stipulated in paragraph (1). Denial of a patent to one or more breeders shall not
extend to the others, where they have acted in accordance with this Law.
Article 14. Patent Application Filed by a NonEntitled Person
(1) Where it is recognized by a final court judgment prior to the granting of a patent by the
AGEPI that an entity with the right to obtain a patent under Part (1), Article 11, is a person
other than the applicant, then that person shall be entitled:
a) to continue the patent application procedure as if it were his own instead of the applicant within three months of the date of the final court judgment;
b) where the patent application was withdrawn or refused, to file a fresh patent application for the same variety which retains the filing date of the original application
within one month of the date of withdrawal or refusal of the application;
c) to request withdrawal of the patent application. (2) The interested party shall present a copy of the court decision to the AGEPI. The
court’s decision shall be entered in the National Register of Applications and shall be
published in BOPI.
Part 3
Effects of Patent Protection
Article 15. Rights of the Patent Owner
(1) The patent owner shall have the exclusive right in the patent and in the patent
protectable variety, which comprises the right to exploit the variety, the right to manage the
patent and variety, and the right to prohibit third parties from performing the following acts in
relation to the material of the patented variety or the harvested material of the variety without
prior approval:
a) breeding or reproduction (for the purposes of propagation); b) conditioning for the purpose of propagation; c) offering for sale; d) selling or other kinds of marketing; e) exporting;
f) importing; g) storing for any of the purposes mentioned in items (a) to (f).
(2) The provisions of paragraph (1) shall apply in relation to the harvested material of the
protected variety only where it has been obtained by means of unapproved use of the material
of the protected variety, except when the patent owner could reasonably benefit from his right
in relation to the material of the variety.
(3) The provisions of paragraph (1) shall also be applied in relation to products obtained
directly from the material of the protected variety, where these products were obtained by
means of unapproved use of the material of the protected variety, and where the patent owner did not have the opportunity to profit from his right in relation to this material.
(4) The provisions of paragraphs (1) to (3) shall likewise apply in relation to varieties: a) which are essentially derived from the protected variety, where the protected variety
itself is not an essentially derived variety;
b) which are not distinguishable from the protected variety, as stipulated in Article 7;
c) the breeding of which requires repeated use of the protected variety.
(5) According to the meaning of item (a) of paragraph (4), a variety shall be deemed to be
essentially derived from another variety (hereinafter referred to as “the initial variety”), where
it:
a) is predominantly derived from the initial variety or a variety which, in turn, is predominantly derived from the initial variety;
b) is distinguishable from the initial variety in accordance with Article 7;
c) conforms to the initial variety to the extent of expression of characteristics that result
from the genotype or combination of genotypes of the initial variety, with the
exception of differences resulting from selection.
(6) Where there are several owners of the same patent, their mutual relations in relation to
the use of the protected variety shall be determined by agreement between them. Where no
such agreement exists, each of the patent owners shall be fully entitled to use the variety at his
own discretion, and to institute patent infringement proceedings against any person who uses
the variety without the approval of the patent coowners, but shall not be entitled to renounce
the patent without notification of same, or to enter into license agreements or agreements on
the assignment of rights without their consent.
(7) Enforcement of the patent owner’s rights may not infringe any public authority
directive adopted due to moral principles or for the purposes of securing public order, public
security, the protection of the health and life of people, animals or plants, the protection of the
environment, the protection of industrial or commercial property or for the purposes of
safeguarding competition, trade and agricultural production.
Article 16. Limitation of Rights of the Patent Owner The right of a patent owner shall not extend to acts performed for: a) private, noncommercial purposes; b) scientific research and experiments; c) the breeding or discovery and improvement of other varieties, as well as to acts
specified in paragraphs (1) to (3) of Article 15, in relation to these other varieties,
except where the provisions of paragraph (4), Article 15 shall apply.
Article 17. Exhaustion of Patent Owner’s Rights
The rights of the patent owner shall not extend to actions in relation to the material of the
protected variety, or a variety to which the provisions of paragraph (4), Article 15 shall apply,
and which was produced by a breeder or with his consent, where such actions:
a) are not intended for the subsequent propagation of the variety, except where such propagation was envisaged in the context of the sale of the corresponding material;
b) are not connected with the export of the material of the variety, enabling propagation of the variety in a country in which varieties of the botanical genus or species are not
protected, except the export of material for the purposes of consumption.
Article 18. Use of a Variety Denomination
(1) Any person offering or assigning to third parties for commercial purposes the
material of a protected variety, or a variety to which the provisions of paragraph (4), Article
15 shall apply, must use the denomination of the variety conferred to it in accordance with
Article 36. The denomination of a variety must be easily recognizable and reproducible in
writing.
(2) A person undertaking actions specified in paragraph (1) in relation to any
material of the variety must specify the denomination of the variety at the request of any
authority, customer or person demonstrating a legitimate interest.
(3) The provisions of paragraphs (1) and (2) shall be valid even after the expiry of
patent protection.
Article 19. Limitation of Use of a Variety Denomination
(1) The patent owner may not use the right granted to him in relation to a designation
identical to the denomination of the protected variety, in order to prohibit the free use of said
denomination in relation to the variety even after the expiry of patent protection.
(2) A third party may use the right granted to him in respect of a designation identical to
the denomination of the protected variety, in order to prohibit the free use of this
denomination only where said right was granted before the conferral of the denomination
under Article 36.
(3) The denomination conferred on a variety patented in the Republic of Moldova or a
UPOV Member State, or any other denomination with which the denomination of the variety
might be confused, may not be used on the territory of the Republic of Moldova in relation to
another variety of the same or closely related species or the material of this other variety.
Part 4
Term of Validity and Termination of Patent Protection
Article 20. Term of Validity of Patent Protection
(1) The term of validity of patent protection for a plant variety shall be up to 25 years or,
in the case of varieties of vines, potatoes and trees, up to 30 years from the publication
date of information in BOPI regarding the grant of the patent.
(2) On the request of the patent owner, the term of patent protection may be extended for a
further five years following the expiry of the terms specified in paragraph (1).
Article 21. Nullity of the Patent
A patent may be declared null and void where:
a) On the date of grant of the patent, the conditions stipulated in Articles 7 or 10 had not
been satisfied;
b) The grant of the patent was based on data and documents provided by the applicant, and as at the date of the grant of the patent, the conditions specified in Articles 8 or 9
had not been satisfied;
c) The patent was granted to a person who was not entitled to it, provided it was not subsequently transferred to a competent person.
Article 22. Action Regarding Nullity of the Patent
(1) An action regarding nullity of the patent may be brought at any time during the term of
the patent, and must only be predicated on the reasons specified in Article 21.
(2) Any person may bring an action in nullity of the patent in court. In the case provided
for by item (c) of Article 21, the action may only be brought by a person entitled to
enter patents in the National Register of Patents as a patent owner, or jointly by
persons entitled to enter a patent in the Register as joint owners in accordance with
paragraph (2) of Article 11.
(3) The action in nullity of the patent may be brought even where rights granted by the
patent have been terminated, or where the patent has been refused.
(4) A decision regarding the nullity of the patent shall be communicated to the AGEPI by
the interested parties and entered in the National Register of Patents. A communication
regarding the nullity of the patent shall be published in BOPI.
Article 23. Effects of Nullity
(1) Where a patent is declared null and void, the effect of protection specified in Articles
15 to 19 shall be regarded as void from the date of grant of the patent.
(2) The retrospective effect of nullity of the patent shall not extend:
(a) to decisions relating to actions for the infringement of rights, which are recognized as
final and coming into legal force before the decision to annul was taken;
(b) to contracts concluded before the decision to annul was taken, to the extent that they
were implemented before this decision was taken. In the interests of fairness, compensation of
sums paid under the contract may be demanded.
Article 24. Forfeiture of Patent Owner’s Rights (1) AGEPI shall announce the deprivation of a patent owner’s rights with consequences in
futurum where it has been established that the conditions specified in Articles 8 and 9
are no longer being satisfied. Where it has been established that these conditions were
not being satisfied at a date earlier than the date of deprivation of rights, then the
deprivation of rights may commence from this earlier date.
(2) AGEPI shall announce the deprivation of a patent owner’s rights where, within a time
limit prescribed by the AGEPI, the patent owner:
a) refuses to provide at the request of the State Commission information, documents or material of the protected variety necessary for its controlled
testing;
b) fails to propose another denomination for the variety, where the denomination of the variety no longer complies with the conditions of Article 36;
c) fails to pay patent grant and maintenanceinforce fees;
d) where the patent owner or his successorintitle no longer satisfy the conditions
specified in Articles 13 and 87.
(3) The deprivation of a patent owner’s rights on the basis of nonpayment of an annual
fee or, where necessary, of an additional fee, shall be regarded as entering into force
from the expiry date of the prescribed time limit for payment of this fee.
(4) AGEPI shall publish a notice in BOPI regarding the deprivation of a patent owner’s
rights.
Article 25. Surrender of Patent
(1) A patent owner shall be entitled to surrender a patent by written request to the AGEPI,
on condition of payment of the prescribed fee.
(2)The surrender of a patent by one of the patent owners shall not terminate the validity
of the patent, which shall remain in the ownership of the other patent owners.
(3) The surrender of a patent shall take effect only after its entry in the National Register
of Patents. A record of this shall be published in BOPI.
(4) The surrender of a patent shall be entered in the National Register of Patents only with
the consent of a person enjoying a preferential right which has been entered in the Register.
(5) Where the patent is the subject of a license contract entered in the National Register of
Patents, the surrender of the patent shall be entered in the Register only where the patent
owner provides evidence of the fact that he informed the licensee of his intention to surrender
the patent. In such a case, the licensee shall have a preferential right to obtain the patent in his
name within three months of the patent owner informing him in writing of his intention to
surrender the patent.
(6) At the same time as submitting a written request to the AGEPI, the patent owner shall
notify the breeder of his intention to surrender the patent. In such a case, the breeder shall
have a preferential right to obtain the patent in his name within three months of the patent
owner informing him in writing of his intention to surrender the patent.
Part 5
Patent Application and Patent as a Subject of Ownership
Article 26. Rights Conferred by a Patent Application after Publication
(1) During the period from the date of publication until the date of grant of a patent,
the patent application shall temporarily grant the applicant the same rights as those granted to
the patent owner in accordance with Article 15.
(2) Infringement by third parties of the rights specified in paragraph (1) shall oblige
the guilty party to compensate damages in accordance with the law. Compensation for damage
shall be discharged following the grant of the patent. The amount of compensation shall be
prescribed by agreement between the parties. Where the parties are unable to reach agreement
regarding the amount of compensation, it shall be fixed by a court.
(3) The consequences of a patent application, as specified in paragraph (1), shall be
regarded as invalid and shall cease to exist where the patent application has been withdrawn or
rejected.
Article 27. Transfer of Rights (1) The patent application and patent may be transferred to one or more successorsin
title.
(2) Transfer of a patent application or patent by means of assignment may only be
effected to a successorintitle which satisfies the conditions specified in Articles 13 and 87.
Assignment shall be performed in writing and signed by the parties to the contract, with the
exception of assignment on the basis of a court decision or any other final document of a legal
procedure. Otherwise, it shall be considered invalid.
(3) Regarding cases referred to in Article 61, the transfer of rights shall not affect the
rights of third parties which have been obtained before the date of transfer.
(4) The transfer of rights shall be regarded as coming into effect for the AGEPI and
may be presented to third parties only after the provision of specified documentary evidence
and following their entry into the National Register of Applications or the National Register of
Patents.
Article 28. Real Rights
(1) A patent may, independently, be put in pledge or be the subject of another real
right.
(2) Pledge of patents shall be recorded in the Register of Corporal Pledges of
Movables according to the Law on Pledge. Other real rights in patents shall be registered in
the National Register of Patents at the request of one of the parties and shall become
enforceable against third parties from the time of registration and details of these rights shall
be published in BOPI.
[Art. 28(2) in the wording of Law of RM No.173 of 25.07.14, OG 231237/08.08.14, Art. 53]
Article 29. License Contracts
(1) The patent application and patent may be the subject of a license contract. The licenses
may be exclusive or nonexclusive.
(2) The applicant or patent owner may claim rights granted by the patent application or
patent to a license owner who has infringed one of the conditions or limitations stated
in the license contract, in accordance with part (1).
Article 30. Joint Ownership
In the case of joint ownership of a patent, the provisions of Articles 27 to 29 shall be
applied mutatis mutandis in relation to the appropriate parts belonging to the joint owners,
where such parts are defined by the contract.
Article 31. Compulsory Licenses
(1) The courts may grant compulsory, nonexclusive licenses for the use of the
protected variety to one or more persons filing an application within three years after the grant
of the patent, under the following conditions:
a) authorization for such use shall be given where it is in the public interest; b) such use may be authorized only where prior to such use, the proposed user has
attempted to obtain authorization from the patent owner on reasonable commercial
terms and by acceptable means, although, regardless of his best efforts, he has not been
successful within a reasonable period of time. Deviation from this provision is only
permissible in situations of national emergency or other circumstances of extreme
urgency or in cases of public, noncommercial use. In such instances, the patent owner
shall be notified as soon as reasonably practicable;
c) the scope and duration of such use shall be limited to the purposes for which it was authorized;
d) such use shall be nonexclusive and nonassignable, except for transfer with the part of
the enterprise or its intangible assets which enjoy such use;
e) any such use shall be authorized predominantly to satisfy the requirements of the
domestic market;
f) authorization for such use shall be liable, subject to appropriate protection of the legitimate interests of the persons so authorized, to be terminated, if the circumstances
which led to it cease to exist and it is evident that they will not recur. The courts shall
have the authority to review the case, upon reasonable request, where these
circumstances persist; g) the patent owner shall be paid adequate remuneration appropriate to each individual
case, taking into account the economic value of the authorization;
h) the validity of any decision relating to authorization of such use, and any decision relating to remuneration stipulated in relation to such use, may be subject to judicial
review or other independent review by higher authorities;
i) the provisions specified in items (b) and (e) shall not apply where such use is permitted to remedy a practice deemed after judicial or administrative process to be anti
competitive. The need to correct anticompetitive practices may be taken into account
in determining the amount of remuneration payable in such cases. The courts shall
have the right to refuse termination of authorization where it is likely that the
circumstances which led to such authorization may recur.
(2) A compulsory license shall only be granted to a person who is able to use the
variety in accordance with the license, which shall confer on its owner the right to obtain
source material of the variety from the patent owner.
(3) The compulsory license shall not prevent the patent owner using the protected
variety or granting licenses for its use to others.
(4) A compulsory, nonexclusive license for the use of a protected variety may be
granted, upon request, to the owner of the patent for a biotechnological invention on condition
of payment of fair remuneration where:
(a) he unsuccessfully attempted to obtain a license contract from the plant variety patent
owner;
(b) the invention is regarded as significant technological progress, with substantial
economic significance in relation to the protected variety.
(5) Where the plant variety patent owner has been granted a compulsory, non
exclusive license for the use of the patented invention, a reciprocal, nonexclusive license for
use of the variety may be granted, upon application, to the patent owner of the invention on
reasonable terms.
(6) A compulsory license may be granted to the patent owner for an essentially derived
variety, under the provisions of paragraph (1). The conditions for granting the compulsory
license may include payment of fair remuneration to the owner of the initial variety patent.
(7) The decision of the court to grant or, under certain circumstances, to cancel the
compulsory license shall be notified by the holder to the AGEPI, entered into the National
Register of Patents and published in BOPI.
(8) Where the holder of the compulsory license has failed to exploit the variety within
one year following the date of the grant, the license may be cancelled by a court decision. The
validity of the license shall likewise be terminated in the event where its holder fails to exploit
the variety within two years following the date of the grant.
Chapter III
PATENT APPLICATION
Part 1
Requirements for Filing a Patent Application
Article 32. Filing of an Application
The patent application shall be filed with the AGEPI by a competent person under
Article 13 in person or via a patent attorney in accordance with Article 87.
Article 33. Requirements To Be Met by a Patent Application
(1) A patent application shall contain:
(a) a statement regarding the grant of the patent;
(b) specification of the botanical taxon;
(c) information about the applicant (applicants);
(d) information about the breeder (breeders);
(e) a proposal for the denomination of the variety;
(f) a technical description of the variety (technical questionnaire);
(g) a declaration by which the applicant assumes responsibility for confirming that the
variety for which protection is sought conforms with the provisions of Article 10; (h) information relating to any other application filed for the variety, along with such
applications.
(2) The following shall accompany the application:
(a) a document regarding payment of fees for the filing of the application;
(b) a document regarding priority, where necessary;
(c) a power of attorney, where the application is filed through a patent attorney;
(d) necessary documentary proof of acquisition of the right to the patent, where the
applicant is not the breeder or is not the sole breeder;
(e) photographs or drawings, as necessary;
(f) results of testing of the variety, carried out by a competent body, as necessary;
(g) permission for introduction into the environment, granted by a competent national
body in accordance with legislation in the field of biological security, where the variety is a
genetically modified organism.
(3) A separate patent application shall be filed for each variety or each category of
variety.
(4) The breeder shall be entitled to be mentioned in the application, patent, and in
AGEPI publications concerning the application or patent. The breeder shall likewise be
entitled to refuse mention of his name in the patent and relevant AGEPI publications, for
which purpose a request shall be filed in writing with the AGEPI.
(5) Other requirements which the application must satisfy shall be prescribed in
regulations ratified by the Government (hereinafter referred to as “the Regulations”).
Article 34. Language of Procedure
(1) A patent application shall be filed with the AGEPI in Moldovan language.
(2) The filing of the application and accompanying documentation shall be permitted
in another language with the exception of the items specified in (a) Article 33(1)((a)(e).
(3) Where the application and accompanying documentation are filed in another
language, for the purposes of examination the applicant shall be obliged to provide a
translation into Moldovan language within two months following the filing date of the
application. Otherwise, the application shall be declined.
Article 35. Filing Date of the Application
(1) The filing date of the patent application shall be deemed to be the date of filing
with the AGEPI an application containing at least the elements specified in (a) Article
33(1)((a)(g).
(2) Where the requirements specified in Article 33(1)(a)(g) are not satisfied, the filing
date of the application shall be deemed to be the date on which these conditions were satisfied.
(3) The elements of the application specified in item (h) of paragraph (1), and
documents accompanying the application specified in paragraph (2) of Article 33, with the
exception of those specified in items (b) and (g), may be submitted by the applicant within
two months of the application filing date.
(4) Permission to introduce a genetically modified organism into the environment shall
be provided simultaneously with the filing of the application or within two months of the date
of completion of the substantive examination.
Article 36. Variety Denomination
(1) The variety must be designated by a denomination which includes its generic
designation and which enables it to be identified.
(2) Variety denominations:
(a) must be easily identifiable and reproducible by users and must not consist
solely of figures, except where this conforms with the established practice for designating
specific varieties;
(b) must not be misleading or confusing in relation to the characteristics, qualities
or identity of the variety, or in relation to the identity of the breeder;
(c) must be different or may not be confused with the denomination of another variety
of the same, or closely related, species, which has been entered in an official catalog of
varieties or marketed in any UPOV Member State, except when this other variety no longer
exists and its denomination did not acquire special significance;
[Art. 36(2)c) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
(d) must be used even after the expiry of the term of the patent;
(e) must be different or may not be confused with other denominations used for the
marketing of goods, or with denominations which may not be used by virtue of other
normative acts.
(f) must not conflict with ethical standards and public order.
(3) Where the variety has already been entered in an official catalogue of plant
varieties and the material of the variety has been marketed in an UPOV Member State, the
denomination of the variety in the patent application filed in the Republic of Moldova must be
the same.
[Art. 36(3) modified by Law of RM No.P85 of 13.04.12, OG 120125/15.06.12, Art.
392]
(4) Where, by virtue of a previously acquired right, a person obliged to use the variety
denomination in accordance with paragraph (5) is prohibited from doing so, AGEPI may
require the applicant to provide another denomination for the variety.
(5) Any person who, on the territory of any UPOV Member State, offers for sale or
markets the material of a variety protected on the territory of said State, shall be obliged to use
the denomination of that variety even after the expiry of the term of the patent protecting that
variety, except where the provisions of paragraph (4) apply.
(6) A variety denomination conforming with paragraphs (1) to (5) shall be entered in
the National Register of Patents at the same time as the patent is granted and shall be
published in BOPI.
(7) The conditions for conferral of the denomination to the variety shall be prescribed
in the Regulations.
Part 2
Priority
Article 37. Right of Priority
(1) The priority of an application shall be determined by its filing date. Where several
applications have been filed on the same date, priority shall be established dependent upon the
order in which they are received.
(2) Any person or his successorintitle who has filed a plant variety patent application in
accordance with the law in a UPOV Member State or a Member State of the World Trade
Organization, shall enjoy for the purposes of filing the application for that same variety the
right of priority for 12 months from the filing date of the earlier application; the filing day
shall not be included in this period.
(3) The applicant shall enjoy the right of priority of the earlier application on condition
that such application exists on the filing date.
(4) The right of priority shall be recognized in relation to any filing of an application valid
as a correctly registered national application.
(5) The applicant shall be granted a twoyear period following the expiry of the term of
priority or, where the initial application was refused or withdrawn, an appropriate period after
such refusal or withdrawal, in order to provide all documentation, information or materials
requested for the purpose of carrying out an examination.
Article 38. Claiming Priority
(1) An applicant who wishes to benefit from the priority of an earlier application must file
a request for claiming priority, a copy of the earlier application, and, where necessary, a
translation into Moldovan language.
(2) Priority shall be claimed at the same time as filing of a patent application or within two
months of the date of filing of the application, and shall be confirmed by a priority document.
(3) Claiming a right of priority shall be invalid where the applicant has failed to submit to
the AGEPI copies of the pearlier applications, certified by a competent authority, within three
months of the date of filing of the application.
(4) Where the earlier application was not in Moldovan language, AGEPI shall be entitled
to request a certified translation thereof.
Article 39. ReEstablishment of Priority Right
(1) Where an application in which the priority of a previous application is claimed is filed
after the expiry of the time limit specified in paragraph (2) of Article 37, but not later than two
months after the expiry of said period, AGEPI may restore the right of priority, if, at the same
time as the filing of the patent application, the applicant filed a request confirming that under
these circumstances appropriate measures had been taken, or that failure to comply with the
time limit was unintentional.
(2) An application regarding the restoration of the right of priority shall be filed within
two months of the expiry date of the priority period specified in paragraph (2) of Article 37,
along with payment of the prescribed fee; failure to do so will result in the application being
deemed not to have been filed.
(3) Where AGEPI has not been provided with a copy of the earlier application in the time
limit specified in paragraph (3) of Article 38, AGEPI may restore the right of priority if the
following conditions are satisfied in aggregate:
a) the applicant filed an appropriate request with the AGEPI before the expiry of the time limit prescribed in paragraph (3) of Article 38;
b) the applicant provided the AGEPI with confirmation of the request filed with the Office which registered the previous application, proving that a copy of the previous
application was requested in a period not exceeding 14 months from the filing date of
said previous application;
c) the AGEPI was provided with a certified copy of the earlier application within one month of the date when the Office which registered the previous application granted
the applicant with the relevant copy.
Article 40. Effect of the Right of Priority
(1) The effect of the right of priority shall be that where Articles 7 and 10 apply, the filing
date of the previous application and the filing date of the patent application shall be one and
the same.
(2) The filing of another patent application, publication of information on a variety or use
of a new variety which was the subject of an initial application, in the period specified in
paragraph (2) of Article 37, may not serve as a basis for refusing a subsequent application and
the acquisition of rights by third parties.
(3) Failure to comply with the time limits stipulated in paragraphs (2) and (3) of Article
38, or to pay the priority claim fee shall cause the priority claim not to be recognized.
Chapter IV
PROCEDURE FOR GRANT OF A PATENT
Part 1
Examination Up to Grant of a Patent
Article 41. Examination of Application
(1) AGEPI and the State Commission shall verify whether the patent application and
variety which is the subject matter of the patent comply with the requirements stipulated by
the Law. To this end, AGEPI shall conduct a formal examination, a preliminary examination
and a substantive examination of the patent application. The State Commission shall conduct a
technical examination of the patent application.
(2) AGEPI shall be entitled to request from the applicant what it deems to be necessary
additional materials in relation to the identity of the applicant himself or of the breeder, a
correctly registered national application, or to the fulfillment of conditions of patentability.
(3) The conditions for providing the additional materials specified in paragraph (2) shall
be prescribed in the Regulations.
Article 42. Examination as to Form
(1) In conducting an examination as to form, AGEPI shall, within two months, verify the
compliance of the patent application with the criteria for the concordance of a filing date
under paragraph (1) of Article 35.
(2) Where the application complies with the criteria specified in (a) Article 33(1)((a)(g),
AGEPI shall enter information relating to the application in the National Register of Applications.
(3) Where the application fails to comply with the criteria specified in (a) Article
33(1)((a)(g), AGEPI shall give the applicant the opportunity to correct any shortcomings
within a time limit prescribed in a notification.
(4) If in the prescribed timeframe the applicant fails to provide the necessary information
or to satisfy the conditions of (a) Article 33(1)((a)(g), the application shall be deemed not to
have been filed, and the applicant shall be accordingly notified of this.
Article 43. Preliminary Examination
(1) In conducting a preliminary examination, within three months of the filing date of the
patent application AGEPI shall verify:
a) the application’s compliance with the conditions specified in Article 33, and, where
necessary, Article 34;
b) compliance of the contents of the application documentation with the conditions
specified in the Regulations;
c) compliance of the procedure for claiming right of priority with the provisions of
Articles 37 and 38; d) fulfillment of the requirements of Article 87; e) payment within the prescribed time limit of the application filing fee.
(2) Where deficiencies are identified which may be obviated, AGEPI shall notify the
applicant, having granted him the opportunity to obviate them within a time limit specified in
the notification. Where the specified time limit is not observed, or in the absence of a request
to extend the time limit, the patent application shall be refused.
Article 44. Publication of an Application
(1) Three months after the date of filing the patent application, the Agency shall publish
information regarding said application in BOPI. The information subject to publication shall
be prescribed in the Regulations.
(2) At the same time as the publication of the application in BOPI, AGEPI shall publish
the documents relating to the application in the form in which they were provided by the
applicant.
(3) Patent applications which were withdrawn or refused prior to the completion of
technical preparation for publication shall not be published.
Article 45. Substantive Examination
(1) In conducting a substantive examination, within six months of the filing date of the patent
application AGEPI shall verify:
(a) compliance of the variety for which a patent has been applied for with the conditions
specified in Article 10;
(b) compliance of the variety denomination with the conditions specified in Article 36.
(2) AGEPI shall be entitled to request from the applicant any missing corroborative
documents or clarifying materials which he must provide within a time limit specified in the
Agency’s notification. Where the time limit is not observed or in the absence of a request to
extend it the patent application shall be refused.
(3) Where during the examination it is established that the variety denomination does not
comply with the conditions of Article 36, the applicant shall be offered the opportunity to
present to the AGEPI a new variety denomination within a time limit specified in the
notification. Where the time limit is not observed or in the absence of a request to extend it the
patent application shall be refused.
(4) Where the patent application complies with the prescribed conditions, AGEPI shall notify
the applicant to this effect.
(5) Upon completion of the substantive examination, AGEPI shall forward copies of the
application documentation to the State Commission for the purpose of conducting a technical
examination of the variety.
Article 46. Technical Examination of a Variety
(1)Where after conducting examinations under Articles 43 and 45, AGEPI finds that there are
no obstacles to granting a patent, steps shall be taken to conduct a technical examination in order to:
a) determine whether the new candidate variety belongs to the botanical taxon applied for by the applicant and identified in the preliminary examination;
b) establish whether the variety complies with the conditions of distinctness, uniformity
and stability according to Articles 7, 8 and 9;
c) establish whether a description of the new variety enables it to be distinguished from
another commonly known variety.
(3) A technical examination of the variety shall be carried out by the State Commission
and shall include the conduct of breeding tests:
(4) The State Commission shall establish a date and place for the seeds or propagating
material required to conduct a technical examination to be provided freeofcharge, in
appropriate samples and in necessary quantities. Failure to provide the necessary materials
within the prescribed time limit shall result in the application being deemed to have been
withdrawn.
(5) The State Commission may request all necessary information and documents from the
applicant.
Article 47. Conduct of Technical Examination
(1) The State Commission shall conduct a technical examination of a variety in
accordance with directions and within time limits prescribed by international standards.
(2) The applicant shall pay the prescribed fee for the technical examination to be
conducted.
(3) Where testing of the variety has been carried out by a competent authority of a UPOV
Member State or by the applicant, the State Commission shall analyze its results in order to
confirm or deny the suitability of the testing done.
(4) On the basis of the results of the technical examination, the State Commission shall
compile a report on the technical examination and send it to the Agency.
Article 48. Technical Examination Report
(1) Where the State Commission deems the results of the technical examination to be
insufficient to evaluate the variety, it shall send a report on the technical examination and a
more precise official description of the variety to the AGEPI.
(2) Where in the course of conducting a technical examination it is established that the
variety does not comply with the conditions in Articles 7, 8 and 9, the State Commission shall
compile a report on the technical examination and send it to the AGEPI.
(3) AGEPI shall notify the applicant of the results of the technical examination and invite
him to provide feedback within the time limit specified in the notification.
(4) Where it is established that the report on the technical examination does not contain
sufficient grounds to make a decision, the State Commission may, on its own initiative and
following consultation with the applicant or upon reasonable request of the applicant, stipulate
the conducting of an additional examination on condition of an additional payment. Any
additional examination carried out prior to taking the final decision shall be deemed to be a
constituent part of the examination carried out in accordance with Article 46(1).
(5) The results of the technical examination shall be for the exclusive use of the AGEPI
and may only be used in future with its consent.
Article 49. Objections to a Patent Application
(1) Any person may file objections to a patent application in writing. Objections must be
reasonable and relate exclusively to the failure to comply with Articles 6 to 10 and 36 and
may be lodged
a) within three months of the publication date of the application where the proposed
denomination does not comply with the provisions of Article 36;
b) in the period between the publication of the application and before a decision is taken
in the case of failure to comply with the conditions specified in Articles 6 to 10.
(2) The applicant shall be notified of objections and granted the opportunity to respond within
two months. The objections and responses provided shall be taken into account by the AGEPI
in taking the decisions specified in Article 50.
Article 50. AGEPI Decisions
(1) Within three months of the date of obtaining the report on the technical examination
and the precise official description of a variety, where it has been established that the
examination results are sufficient to take a decision on an application, and in the absence of
any of the obstacles specified in Article 49 and paragraph (2) of this Article, AGEPI shall take
a decision regarding the grant of the patent.
(2) AGEPI shall take a decision to reject an application: a) where the applicant has failed to eliminate deficiencies within the time limit
specified in Articles 43 and 45;
b) where the applicant has failed to satisfy the requirements specified in paragraph
(1) of Article 46;
c) where the applicant has failed to propose a variety denomination in accordance
with Article 36;
d) where on the basis of the technical examination report it has been concluded
that the conditions of Articles 7, 8 and 9 have not been satisfied;
e) at the request of a person whose right in the patent has been recognized by a court decision.
(3) AGEPI shall notify the applicant of the decision taken.
Article 51. Motivation of Decisions
(1) AGEPI decisions must contain the grounds for taking said decisions.
(2) AGEPI decisions shall be based exclusively on grounds and items of evidence with which
interested parties could familiarize themselves orally or in writing and on which they could
state their point of view.
Article 52. Publication of a Decision
(1) AGEPI shall publish notification of its decision to grant a patent or refuse an
application in the Gazette.
(2) At the same time as the publication of the notification of the decision to grant a patent,
the Agency shall publish patent documents containing the official description of a variety and
photographs, as necessary. Information for publication shall be determined by the
Regulations.
Article 53. Withdrawal of Patent Application
(1) An applicant shall be entitled to withdraw a patent application at any time prior to a
decision being taken as to its validity.
(2) Where there is more than one applicant, a patent application may only be withdrawn
with the consent of each of them.
(3) Where the applicant is not the breeder, he shall inform the breeder of his intention to
withdraw the application at the same time as lodging a request to this effect in writing with the
AGEPI. In this case, the breeder within two months of receiving such notification shall have a
preferential right to apply for continuation of the application procedures as the applicant.
Part 2
Appeals Procedure
Article 54. Requirements for Filing an Appeal
(1) Any decision taken by AGEPI may be appealed before the Board of Appeals of
AGEPI.
(2) Any natural or legal person may lodge an appeal, while complying with the provisions
of Article 87, against a decision affecting him directly, or against a decision affecting another
person, but who has a direct relationship with him.
(3) A justified appeal shall be lodged to the AGEPI in writing within two months of the
day of the decision where the appeal is lodged by the applicant, or otherwise, within two
months of the date of publication of the decision.
(4) The appeal shall only be deemed to have been lodged upon payment of the prescribed
fee.
(5) An appeal lodged according to paragraph (1) has a suspending effect. AGEPI, where it
deems necessary, may take the decision not to suspend an appealed decision.
Article 55. Examination of an Appeal
(1) Where an appeal is permitted for examination, the Board of Appeals shall verify
whether it is reasonable.
(2) In the course of examination of the appeal, which shall be conducted in accordance
with the Regulations on the Board of Appeals of AGEPI, the parties may lodge as necessary
within the time limit prescribed by the Board of Appeals their feedback on the notifications
addressed to them, or the communications received from other parties.
(3) The parties to the appeals procedure shall be entitled to make oral representations.
Article 56. Decision in Relation to an Appeal
(1) Following examination of an appeal, the Board of Appeals shall either pass final
judgment on it, or transfer the matter to a competent subdivision of the AGEPI or to the State
Commission in order to repeat the examination.
(2) Where the Board of Appeals transfers the matter to a competent subdivision of the
Agency or to the State Commission, the grounds and directions contained in the Board of
Appeals’ decision shall be binding on said subdivision and the State Commission, provided
that the facts of the matter are one and the same.
(3) The decision of the Board of Appeals shall be published in BOPI within two months of
it being taken.
Article 57. Means of Appealing the Board of Appeals’ Decisions
(1) Any decision taken by the Board of Appeals may be challenged in court under the
provisions of the Code of Civil Procedure. The bringing of a suit shall not have a suspending
effect.
(2) Grounds for bringing a legal action may be lack of competence, infringement of the
fundamental requirements of the procedure, infringement of the provisions of this Law or the
order of its application or abuse of authority.
(3) A Board of Appeals’ decision, which in the procedure is not final with respect to one
of the parties, may not be the subject of a legal action before the final decision is taken, except
where such a decision does not provide for a legal action to be brought.
(4) The court is entitled to cancel or amend an appealed decision.
(5) A legal action may be brought in court within two months of the date of notification of
interested parties of the Board of Appeals’ decision.
(6) An action may be brought by any of the parties to proceedings which have been
affected by the Board of Appeals’ decision.
(7) AGEPI shall be informed of a court decision by an interested party. AGEPI shall enter
amendments arising from the final and legally enforceable court decision in the national
registers, and shall publish said court decision in BOPI within two months of the date of
registration with the AGEPI.
Chapter V
PROCEDURE FOR GRANT AND
MAINTENANCE IN FORCE OF A PATENT
Article 58. Grant of Patent
(1) Where a decision to grant a patent has not been challenged or the lodged appeals were
rejected, AGEPI shall grant a patent to the person entitled to said patent, provided the
prescribed fees have been paid, and shall publish information to that effect in BOPI.
(2) The patent shall be granted by AGEPI on the basis of the decision on the grant of the
patent.
(3) The date of grant of the patent shall be the publication date of a notification of its grant
in BOPI. A list of information to be published shall be determined by AGEPI. The date of
grant of the patent shall be entered in the National Register of Patents.
(4) Where the prescribed fees for the grant of a patent have not been paid following
publication of the notification of the grant of the patent under the conditions specified in the
Regulations, the patent shall not be granted; a notification regarding the loss of the patent
owner’s rights shall be entered in the National Register of Patents and published in the Gazette.
Article 59. Maintenance of Patent
(1) In order to maintain a patent in force, it shall be necessary to pay annual fees in
accordance with the provisions of Article 92.
(2) Annual fees shall be paid following publication of the notification regarding grant of a
patent, and shall be deemed to have been paid when payment is effected within the time limit
prescribed in the Regulations.
(3) Where the annual fee has not been paid within the prescribed time limit, it may be paid
within six months of the expiry date of said time limit, subject to the payment of an additional
fee.
Article 60. Patent Granted to a NonEntitled Person
(1) Where a patent is granted to a person who is not entitled to it, then the person who is
so entitled may request the transfer of the patent to his name, without prejudicing other
existing rights or actions according to the law.
(2) Where a person is only entitled to partial patent protection, he may request recognition
as the joint owner of the patent in accordance with paragraph (1).
(3) The actions specified in paragraphs (1) and (2) may only be examined in court within
five years of the publication date of the decision to grant the patent in BOPI.
(4) Paragraph (3) shall not be applied where, on the date of the grant or grant of the patent,
the patent owner was aware that he was not entitled to it, or was not the sole person so
entitled.
(5) The lodging of a legal action shall be recorded in the National Register of Patents. A
certified copy of the court decision shall be furnished to the AGEPI by the interested party.
The final and legally enforceable court judgment shall be entered in the National Register of
Patents and come into force for third parties as of the publication date in BOPI.
Article 61. . Effects of Change of the Patent Owner
(1) Where there is a change of patent owner following a court decision, a license
agreement and any other rights shall be terminated by entering the authorized person in the
National Register of Patents. Where, prior to bringing the action, the patent owner or license
owner used the variety on the territory of the Republic of Moldova or undertook effective and
substantive preparations for this purpose, they may continue such use, provided that an
application for the grant of a nonexclusive license is submitted to the new patent owner, as
entered in the National Register of Patents. The application must be submitted within the time
limit stipulated in the Regulations. The license shall be granted for a defined period and under
reasonable conditions.
(2) In the absence of agreement between the parties, the nonexclusive license specified in
paragraph (2) may be granted by a court.
(3) The provisions of paragraph (2) shall not be applied where the patent owner or license
owner acted in bad faith when they began to use the variety or prepared for such use.
Article 62. Change of Variety Denomination
(1) The denomination of the variety, conferred to it in accordance with Article 36, may be
changed where the AGEPI finds that such denomination fails to satisfy or no longer satisfies
the requirements specified in the relevant Article, and where it has previously been possible to
demonstrate the right of a third party, and the patent owner has agreed with the change, or
where use of the variety denomination by the patent owner or by any other person is
prohibited by a court decision.
(2) AGEPI shall propose to the patent owner to provide an amended variety denomination
in accordance with Article 36.
(3) The amended denomination proposed may become the subject of objections under
Article 49.
Article 63. Technical Inspection
(1) The patent owner shall be obliged to maintain the protected variety for the patent’s
entire term to such an extent as to retain all of its features as specified in the official description of the variety as at the date of the grant of the patent.
(2) The State Commission may carry out a technical inspection under Articles 46 and 47
in order to verify whether the protected variety is in continued existence as such, i.e. whether
it retains all the features specified in the official description as at the date of the grant of the
patent.
(3) The patent owner shall be obliged to furnish to the State Commission all information
necessary to verify the existence of the variety as such. He shall be obliged to provide variety
material and to allow testing for the purpose of establishing whether essential measures have
been taken to guarantee the existence of the variety as such.
Article 64. Technical Inspection Report
(1) Where the State Commission has established that the variety is no longer uniform or
stable, it shall send the AGEPI a report with its conclusions.
(2) Where, in conducting the technical inspection, it emerges that the variety fails to
comply with the requirements of patentability specified in Part (1), AGEPI shall notify the
patent owner of the results of the inspection and give him the opportunity to provide feedback.
(3) Where the patent owner fails to provide feedback, AGEPI shall announce forfeiture of
patent owner’s rights conferred by the patent, in accordance with Article 24.
Chapter VI
INFORMATION OF PUBLIC
Article 65. Information of Public
AGEPI and the State Commission shall, by virtue of their authority, inform the public
of all decisions and notifications which stipulate a certain time limit or communication, which
in turn shall be stipulated by other provisions of this Law, Order of the Director General of
AGEPI or Order of the Chairman of the State Commission.
Article 66. Registers
(1) AGEPI shall keep the National Register of Applications, including:
a) patent applications, containing an indication of taxon, preliminary variety
denomination, filing date, names and addresses of the applicants, breeders and patent
attorney;
b) all information relating to the completion of the procedure concerning patent
applications, with reference to the information specified in item (a); c) proposals for the denomination of the variety; d) amendments affecting the applicant or the patent attorney.
(2) AGEPI shall keep the National Registry of Patents, in which the following information is
included after the decision regarding the grant of a patent is taken:
a) the species and denomination of the variety;
b) the official description of the variety, or an indication of a document at the Agency’s
disposal, which contains such a description;
c) for varieties requiring certain components in order to obtain material for repeated use,
an indication of such components;
d) the names and addresses of the patent owner, breeder and patent attorney;
e) the commencement date and expiry date of the period of validity of the patent;
f) upon request, any contractual right to exclusive use or any right to compulsory use of
the variety, including the name and address of the person enjoying the right of use;
g) instructions for the identification of the variety as an initial variety, or a variety
essentially inheriting the features of the initial variety, including the denomination of
the varieties and the names of the parties involved.
(3) AGEPI shall keep the registers specified in paragraphs (1) and (2), in accordance with the
provisions of the Law on Registers.
(4) The State Commission shall keep the Catalogue of Plant Varieties, which contains the
following information about varieties permitted for breeding in the Republic of Moldova:
[Art. 66(4) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
(a) registration number;
(b) variety denomination;
(c) name and address of the breeder; (d) name and address of the holder;
(e) year of admission for cultivation;
[Art. 66(4)e) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
f) some morphological and breeding characteristics of the variety.
Article 67. Public Inspection
(1) The registers referred to in Article 66(1) and (2) and the catalogue referred to in
Article 66(4) shall be open for public inspection.
[Art. 67(1) in the wording of Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art.
392]
(2) Where there is legitimate interest and in accordance with the conditions specified in
the provision, the following shall be open for public inspection:
a) documents concerning the patent application;
b) documents concerning the granted patent;
c) cultivation tests conducted for the purposes of the technical examination of the variety;
d) cultivation tests conducted for the purposes of the technical inspection of the
maintenance of the variety.
(3) In the case of varieties whose material, consisting of specific components, must be
used repeatedly in order to obtain the variety, upon the request of the applicant any
information on the components, including their cultivation, shall be excluded from the number
of materials subject to public inspection. After the decision regarding the patent application
has been taken, such an application shall not be accepted.
(4) AGEPI and the State Commission shall not be entitled to transfer material provided or
obtained within the framework of testing to third parties, except where the relevant person
gives his consent.
(5) AGEPI and the State Commission shall be entitled to grant excerpts from the register and,
respectively, the catalogue on request and upon payment of the prescribed fee.
[Art. 67(5) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
Article 68.Periodicals
(1) AGEPI shall publish the periodical BOPI, containing:
a) information entered in the National Register of Applications and the National Register of Patents, and likewise any other information whose publication is stipulated by this
Law;
b) notifications and information of a general nature, received from the Director General of AGEPI, and also any other information relating to this Law and the application
thereof.
(2) The State Commission shall periodically publish the Catalogue of Plant Varieties,
including varieties and hybrids allowed for breeding and marketing.
[Art. 68(2) modified by Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art. 392]
Article 69. Preventive Marking
(1) The patent owner shall be entitled to mark the material of a variety or the harvested
material of a variety with preventive marking indicating that the variety is patented.
(2) The absence of preventive marking shall not have legal consequences.
(3) A person who, directly or indirectly, falsely specifies that the material of a variety or
the harvested material of a variety obtained or sold by him belongs to a variety patented by
another person shall be answerable before the law.
(4) Where genetically modified plant varieties are marketed, the material of a variety shall
be marked appropriately with an indication on the label and/or in accompanying
documentation of the presence of genetically modified organisms.
Chapter VII
ENSURING OBSERVANCE OF RIGHTS
Article 70. Actions for Infringement of Rights
(1) The undertaking of any act specified in Article 15 without the permission of the patent
owner shall be deemed to be an infringement of rights arising from a patent application or a patent, as shall the following acts:
a) incorrect use of the variety denomination or failure to indicate the denomination in contravention of the provision of Article 18(2);
b) contrary to Article 19(3), use of the denomination of a protected variety or of a denomination so similar as to be easily confused with the denomination of a protected
variety.
(2) A person who has committed the infringements specified in paragraph (1) shall be
obliged to compensate for damages sustained by the patent owner. The amount of
compensation may not be less than the benefit obtained by the infringer.
Article 71. Actions Preceding the Grant of a Patent
The patent owner may apply for reasonable compensation from any person who in the
period between the publication date of the patent application and the patent grant date
committed an act which would have been prohibited had the patent been granted.
Article 72. Right to Bring an Action for Infringement of Rights
(1) An action for infringement of rights may be brought by a patent owner.
(2) A licensee may bring an action for infringement of rights, except where such an
eventuality was deliberately excluded by way of agreement with the patent owner in the case
of an exclusive license, or by a court in accordance with Article 31 or 61.
(3) Any licensee shall have the right to participate in infringement proceedings brought by the
patent owner in a court in order to obtain compensation for damages sustained.
Article 73. Measures to Preserve Evidence up to Institution of Proceedings
(1) Any competent person who has provided sufficient evidence to confirm the
infringement of his rights may request a court or other competent authority prior to the filing
of an action against illegal acts to take temporary measures to preserve relevant evidence
provided that the confidentiality of the information is safeguarded. A court may pronounce
judgment on the adoption of measures to secure evidence on condition that a deposit is lodged
by the plaintiff or a guarantee of equivalent value is provided, necessary to compensate any
damages caused to the defendant where no infringement is confirmed.
(2) In order to adopt measures to secure evidence, the court shall have the right to: a) request a detailed description of the variety or its materials, the rights to which are
assumed to have been infringed, either with or without specimens;
b) to seize the disputed products;
c) to seize materials and equipment used in the production process and/or distribution of
the disputed products, and also documents relating thereto.
(3) The procedure for applying measures to preserve evidence shall be performed by a court or
other competent authority in accordance with the Code of Civil Procedure. Measures to secure
evidence shall be implemented with the assistance of a bailiff, accompanied where necessary
by a representative of the AGEPI and a police officer.
Article 74. Preservation of Evidence in Urgent Cases
(1) Measures to preserve evidence may be prescribed without the knowledge of the
defendant where a delay could cause irreparable harm to the patent owner or where there is a
risk of the evidence being destroyed. The affected parties shall be promptly informed of the
court’s decision.
(2) The decision regarding the preservation of evidence may be appealed to the court.
Article 75. Invalidity of Measures to Preserve Evidence
(1) Measures to preserve evidence shall be deemed worthless or invalid: a) where within 20 working days the plaintiff fails to bring an action on infringement of
rights in court;
b) as a result of any actions or inaction of the plaintiff which involved the causing of
damage;
c) upon the establishment of the absence of infringement or the risk of infringement of
rights in a plant variety; d) in other cases specified by law, by court decision.
(2) Where damage is caused by measures to secure evidence recognized as worthless or invalid, the plaintiff shall pay the defendant appropriate compensation.
Article 76. Presentation and Preservation of Evidence in Proceedings for Infringement of
Rights
(1) Where a party presents arguments as a basis for his claims, and also information that
specific evidence is available to the opposing party, the court shall order that these documents
are provided in sufficient and reasonable number provided that confidentiality of the
information is ensured. In the case of an infringement of rights in a commercial field, the court
may additionally order the parties to provide bank, financial or trade documentation.
(2) Where one of the parties to proceedings unreasonably refuses access to necessary
information or in bad faith delays providing such information, thereby hindering settlement of
the dispute, the court shall make a judgment on whether or not to take into consideration the
statement of claim on the basis of information provided, including the appeals or claims of the
party adversely affected by the refusal to grant access to the information, on condition that the
parties are granted the opportunity of a hearing as regards their claims or evidence.
Article 77. Right to Information
(1) Where upon examination of the dispute it has been established that rights in a plant
variety have been infringed, a court may request information regarding the provenance and
distribution channels of materials infringing the right in the variety from the infringer or any
other person:
a) in whose possession counterfeit materials intended for sale were discovered;
b) identified by the person mentioned in item (a) as a person involved in the production,
reproduction or distribution of the variety materials.
(2) The information specified in paragraph (1) shall include where necessary: a) the names and addresses of the breeder, distributor, supplier and previous owners of
the variety materials, and also of wholesalers and retailers;
b) information on the amount produced, supplied, obtained or ordered, and also about the price of the relevant variety materials.
(3) The provisions of paragraphs (1) and (2) shall be applied without detriment to other
legislative and regulatory norms, which:
a) shall enable the patent owner to obtain more detailed information; b) shall govern use of information provided in accordance with this Article in civil or
criminal cases;
c) shall determine responsibility for abuse of the right to information; d) shall give the opportunity to refuse to provide information which might force the
person identified in paragraph (1) to recognize his own participation or that of close
relatives in the infringement of the patent;
(e) shall govern the safeguarding of confidentiality of information sources or the
processing of personal data.
Article 78. Measures to Ensure the Proceedings for Infringement of Rights
(1) Having established actual or unavoidable infringement of a patent, a court may, upon
the application of the right owner, take measures to secure an action on infringement of rights
in relation to the infringer and/or intermediaries, such as:
a) taking a decision on the temporary prohibition of any act which is an infringement of the patent owner’s rights, or permitting the continuation of such acts on condition that
a deposit is lodged which is sufficient to compensate the patent owner for damages
sustained;
b) the sequestration of materials suspected in the infringement of a patent in order to
prevent their use in commercial trade;
c) the sequestration of any of the infringer’s property, including freezing of bank accounts, requiring bank, financial or commercial documentation to be provided,
where the infringement has been committed in the commercial arena and there is a risk
of failure to compensate for damages sustained.
(2) Measures for ensuring the enforcement of rights may be prescribed without the
defendant’s knowledge, where any delay could cause irreparable harm to the patent owner, or where there is a risk that the evidence will be destroyed. The affected parties shall be promptly
informed of the court’s decision.
Article 79. Remedial Measures
(1) Having established that an infringement of rights has taken place, a court may, upon
application, order appropriate measures to be taken in relation to the products infringing a
patent, and in appropriate cases in relation to materials and equipment which were used for
creating and manufacturing such products. In particular, such measures are:
a) temporary withdrawal from trade; b) final and complete withdrawal from trade; c) destruction.
(2) The measures specified in paragraph (1) shall be implemented at the expense of the
defendant, except when there are important reasons preventing this.
(3) Upon examination of an application for remedies, a court shall be led by the principle of
fairness, by proportionality of the seriousness of the infringement and prescribed means of
protection, and shall also take into account the interests of third parties.
Article 80. Ensuring Execution of a Court Decision
When issuing a decision of patent infringement, the court may, on patent owner’s
request, take measures to ensure the execution of court decision against infringer, in
accordance with which the latter shall be ordered to cease any actions infringing the rights of
the patent owner. For this purpose, the court may oblige the infringer to lodge an appropriate
security or provide a guarantee of equivalent value. The patent owner may also request the
application of such measures to intermediaries whose services are used by third parties in
infringing the patent.
Article 81. Alternative Measures
The court may, on request of the infringer, prescribe financial compensation to the
plaintiff instead of the measures specified in Articles 79 and 80, where the infringer acted
unintentionally or carelessly, where adoption of such measures would cause him
disproportionate detriment, and where financial compensation for the plaintiff is reasonable.
Article 82. Compensatory Damages
(1) Upon request of an injured party, a person who deliberately infringed, or who had
reasonable grounds to recognize the patent had been infringed, shall compensate the patent
owner for realistic damage caused by the infringement of his rights. In determining the
amount of compensatory damages:
a) all existing circumstances must be taken into account, such as negative economic consequences, including profit foregone by the aggrieved party, income obtained
illegally by the defendant, and also other aspects, such as moral damage sustained by
the patent owner as a result of infringement of his rights;
b) as an alternative, a single lump sum may be determined, calculated based upon, at the very least, regular payments or remuneration which would be due to the patent owner
where the defendant has requested permission to use the relevant plant variety.
(2) Where the infringer has committed an infringement unwittingly or did not have reasonable
grounds to be aware of said infringement, he shall be obliged to compensate the patent owner
for profit foregone or damage caused, as prescribed in accordance with the law.
Article 83. Publication of Court Decisions
(1) In the context of actions for infringement of protected rights, at the request of the
plaintiff and at the expense of the defendant, a competent legal authority may prescribe
measures for the distribution of information relating to a court decision, including displaying
it in public places, and also partial or full publication of the decision.
(2) The competent legal authority may prescribe additional publicity measures, including
massmarket, appropriate to the specific circumstances.
Chapter VIII
GENERAL PROVISIONS
Article 84. Extension of Time Limits and Reestablishment of Time Limit
(1) Time limits concerning the application or patent prescribed by this Law or by the
Regulations may be extended by submitting a request to the Agency prior to the expiry of the
prescribed time limit. The time limit shall be extended by no more than six months from the
expiry date of the prescribed time limit.
(2) The request for extension of the time limit shall be deemed to be submitted only upon
payment of the relevant fee.
(3) Where the applicant was unable to observe a prescribed time limit for proceedings
before AGEPI, he may request reestablishment of the time limit within six months of the
expiry date of the prescribed time limit. The omitted procedure must be undertaken within this
time limit. The request shall not be deemed to have been filed until the fee for re
establishment of the time limit has been paid; otherwise it shall be rejected.
(4) The provisions of this Article shall not be applicable to the time limits specified in
paragraphs (1) and (3) of this Article, paragraph (3) of Article 12, paragraph (3) of Article 34,
paragraph (3) of Article 35, in Articles 37 to 39, 49, paragraph (3) of Article 54, paragraph (3)
of Article 59, and paragraph (2) of Article 85.
Article 85. Reestablishment of Rights (restitutio in integrum)
(1) The applicant for or owner of a patent who, in spite of all due care required by the
circumstances having been taken, was unable to observe a time limit visаvis AGEPI, shall
have his rights reestablished upon request if the nonobservance of this time limit has the
direct consequence of causing the loss of any other right or means of redress.
(2) The request for reestablishment of rights must be filed in writing within two months
from the removal of the cause of noncompliance with the time limit, but no later than 12
months following the expiry of the unobserved time limit. If the respective request relates to
revalidation of the patent in connection with nonpayment of the annual maintenance fee, the
period of 12 months shall be deemed to start from the date of expiry of the time limit specified
in Article 59(3).
(3) The request for reestablishment of rights must state the grounds on which it is based,
and must set out the facts on which it relies.
(4) The request for reestablishment of rights shall not be deemed to have been filed until
the fee for reestablishment of rights has been paid.
(5) The provisions of this Article shall not be applicable to the time limits specified in
paragraph (2) of this Article, paragraph (3) of Article 12, paragraph (1) of Article 14, in
Articles 37 to 39, 49 and paragraph (3) of Article 54.
Article 86. Right of Subsequent User
Any person who, in the period between the loss of application or patent rights and the
restoration of such rights, has used in good faith or undertook effective and essential
preparations to use a variety which is the subject of a published application or enjoys patent
protection, may continue to use it free of charge within the framework or for the requirements
of his business, without exceeding the existing scope of use.
Article 87. Representation
(1) Subject to the provisions of paragraph (2) below, no person shall be compelled to be
represented in proceedings established by this Law before the AGEPI.
(2) Natural or legal persons not having their residence or principal place of business in the
Republic of Moldova shall be represented by a patent attorney in proceedings before the
AGEPI, except for the following situations:
a) filing of a patent application; b) payment of fees; c) filing of an earlier application.
(3) Natural or legal persons not having their residence or principal place of business in the
Republic of Moldova may be represented in proceedings before the AGEPI by an employee.
(4) Representation shall be based on a power of attorney registered with the AGEPI, on terms
and conditions provided by the Regulations.
(5) Patent attorneys shall act on the basis of a Regulations approved by the Government.
Article 88. Ex Officio Examination
(1) In proceedings conducted, AGEPI may act upon its own initiative in the examination
of the facts to the extent that they are the subject of the examination specified in Articles 45
and 46.
(2) AGEPI may disregard facts or evidence which are not claimed or submitted within the
time limit established by it.
Article 89. Oral Proceeding
(1) An oral proceeding shall be conducted at the AGEPI initiative or upon the request of
one of the parties to the proceeding.
(2) Without affecting the provisions of paragraph (3), an oral proceeding conducted within
AGEPI shall not be public.
(3) An oral proceeding conducted within the Board of Appeals of AGEPI, and in
particular delivery of the decision shall be public, except for decisions whose public delivery
might cause serious and unjustified damages, especially to one of the parties to the
proceeding.
Article 90. Taking of Evidence
(1) In any proceeding conducted within AGEPI, the State Commission or the court, the
following measures may be undertaken for the taking of evidence:
a) hearing of the parties;
b) request for information;
c) provision of documents and other evidence;
d) hearing of witnesses;
e) examination;
f) visiting the place of business;
g) written declarations under oath.
(2) Where the AGEPI, State Commission or court will consider it necessary for a party to the
proceeding, witness or expert to give oral testimonial evidence:
a) the person shall be invited to the appropriate authority;
b) a request to obtain testimonies from the appropriate person shall be submitted to the
court or other competent authority.
(3) A party to the proceeding, witness or expert who has been invited before the AGEPI, State
Commission or court, may request approval to be heard by the competent authorities. After
receiving such a request, or where the person fails to appear, the AGEPI, State Commission or
court may request the competent authorities to receive the testimonial evidence of said person.
(4) Where a party to the proceeding, witness or expert brings testimonial evidence before the
AGEPI, State Commission or court, the relevant person may request the competent authorities
to be heard under appropriate conditions.
Article 91. Suspension of Proceeding in Court
(1) Where the matter in court concerns the establishment of the person entitled to obtain a
patent and where the decision depends upon an assessment of the patentability of the variety
according to Article 6, then such a decision may only be taken after the AGEPI has taken a
decision as to the patentability of the variety in accordance with the patent application.
(2) Where the matter in court concerns a patent that has already been granted, in relation
to which a cancellation or loss of rights procedure has been applied, the procedure may be
suspended to the extent that the decision is dependent upon the validity of the patent.
Article 92. Fees
(1) In accordance with the regulations approved by the Government, AGEPI shall levy
fees for the performance of legal acts, and also annual fees for the maintenance in force of the
patent throughout the term of validity.
(2) In the case of nonpayment of fees prescribed for the performance of other acts only on
the request of an interested party, the application shall not be deemed to be filed where the fee
has not been paid within the time limit specified in the notification by AGEPI, by means of
which the person was invited to pay the fee and was warned about the consequences of non
payment. (3) Where certain information provided by the applicant may only be verified by means of
carrying out a technical examination, the cost of which exceeds the prescribed payment, an
additional charge shall be levied in respect of the technical examination.
(4) Fees shall be paid by the applicant, the patent owner or by any other natural or legal
person concerned.
Article 93. Protection and Testing of Varieties Abroad
(1) Natural and legal persons from the Republic of Moldova shall have the right to choose
in which State to submit the initial filing of the patent application.
(2) The applicant shall be entitled to apply to other UPOV Member States for the grant of
a plant variety patent, without having to wait for the grant of the patent for said variety by an
authority of the State in which the initial application was filed.
(3) The variety for which protection is sought in the Republic of Moldova may be tested in
another State where a corresponding bilateral or international treaty has been concluded with
that State.
(4) An applicant who has filed his first application in another State shall be required to
provide information on the testing carried out in compliance with the requirements for variety
protection in that State.
(5) The cost of protecting a variety abroad shall be borne by the applicant.
Article 94. Competence in Settlement of Disputes
(1) The Board of Appeals of AGEPI shall hear litigation with respect to:
a) grant or rejection of a patent application;
b) recognition of the right of priority;
c) withdrawal of a patent application or surrender of a patent.
(2) The work of the Board of Appeals shall be governed by the Regulations on the Board of
Appeals of AGEPI, as approved by the Government.
(3) The Chisinau Court of Appeals shall hear litigation regarding the:
a) authorship of breeder;
b) establishment of the person entitled to obtain a patent;
c) grant of a license for a patent application or patent;
d) actions concerning the right of subsequent user;
e) actions concerning the right to a patent between an enterprise and an employee;
f) actions concerning the infringement of a patent application or a patent and instructions
on appropriate measures;
g) actions in the nullity of the paten;
h) examination in a court of first instance of appeals against the decisions of the Board of
Appeals.
Article 95. Use of Varieties for Production Purposes
(1) Plant varieties shall be used for production purposes only after said varieties are tested for
the value for cultivation and use and are entered in the Catalogue of Plant Varieties.
[Art. 95(1) in the wording of Law of RM No.85 of 13.04.12, OG 120125/15.06.12, Art.
392]
(2) Varieties of genetically modified plants shall be used for production purposes only
after obtaining approval for their introduction into the environment, granted where necessary
by a national competent authority in compliance with biological safety legislation.
Article 96. National Treatment
Foreign natural and legal persons from UPOV Member States shall enjoy the rights
granted by this Law on an equal footing with the natural and legal persons from the Republic
of Moldova. The provisions of this Law shall also be applicable in bilateral agreements or
reciprocal relations.
Chapter IX
FINAL AND TRANSITIONAL PROVISIONS
Article 97. Entry into Force
This Law shall enter into force three months from its publication date in the Official Gazette of the Republic of Moldova, except for Articles 73, 74, 75 and 76 to be published
with the entry into force of the corresponding amendments made in the Civil Procedural Code.
Law on the Protection of Plant Varieties No.915XIII of July 11, 1996, as amended, shall
be abrogated on the date of entry into force of this Law.
It shall be established that:
(a) patent applications, the procedure for the examination of which shall not be complete
until the date of entry into force of this Law, shall be examined in the order prescribed by this
Law;
(b) patents for varieties of plants relating to botanical genera and species protected on the
territory of the Republic of Moldova under the Law on Protection of Plant Varieties No.915
XIII of July 11, 1996, granted prior to the entry into force of this Law, shall be equivalent in
legal terms to patents granted in accordance with this Law.
Article 98. Organization of Enforcement
Within 3 months following the entry into force of this Law, the Government:
a) shall submit to Parliament proposals to adapt the current legislation to this Law;
b) shall bring its normative acts into line with this Law.
.
CHAIRMAN OF PARLIAMENT Marian Lupu
Chisinau, February 29, 2008.
No. 39XVI.