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Plant Varieties (Proprietary Rights) (Amendment) Act of November 16, 1998 with
date of entry into force of December 14, 2000
Number 41 of 1998
PLANT VARIETIES (PROPRIETARY RIGHTS) (AMENDMENT) ACT, 1998
ARRANGEMENT OF SECTIONS
Section
1. Interpretation.
2.Amendment of section 1 of Principal Act.
3.Amendment of section 2 of Principal Act.
4.Amendment of section 3 of Principal Act.
5.Amendment of section 4 of Principal Act.
6.Amendment of section 5 of Principal Act.
7.Amendment of section 6 of Principal Act.
8.Amendment of section 7 of Principal Act.
9.Amendment of section 8 of Principal Act.
10.Amendment of section 11 of Principal Act.
11.Amendment of section 12 of Principal Act.
12.Amendment of section 23 of Principal Act.
13.Amendment of section 25 of Principal Act.
14.Amendment of First Schedule to Principal Act.
15.Application for plant breeders’ rights.
16.Limitation of protection.
17.Authorisation of holder.
18.Authorisation required for certain acts, etc.
19.Authorisation not required for certain acts, etc.
20. Information notice.
21.Action for infringement of plant breeders’ rights.
22.Transitional provisions.
23.Repeals and miscellaneous amendments.
24.Short title, collective citation, construction and commencement.
SCHEDULE
Act Referred to
Plant Varieties (Proprietary Rights) Act, 1980 1980, No. 24
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Number 41 of 1998
PLANT VARIETIES (PROPRIETARY RIGHTS) (AMENDMENT) ACT, 1998
AN ACT TO AMEND AND EXTEND THE PLANT VARIETIES (PROPRIETARY RIGHTS) ACT, 1980 ,
AND TO PROVIDE FOR RELATED MATTERS. [16th November, 1998]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
INTERPRETATION.
1.—(1) In this Act, except where the context otherwise requires—
“the Acts” means the Principal Act and this Act;
“authorisation” has the meaning assigned to it by section 17 ;
“the Convention” means the International Convention for the Protection of New Varieties of
Plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23,
1978, and on March 19, 1991;
“the Council Regulation” means Council Regulation (EC) No. 2100/94 of 27 July 1994(1) on
Community plant variety rights;
“essentially derived variety” has the meaning assigned to it by section 4 of the Principal Act,
(inserted by section 5 );
“holder” has the meaning assigned to it by section 15 ;
“hybrid variety” has the meaning assigned to it by section 4 of the Principal Act, (inserted by
section 5 );
“information notice” has the meaning assigned to it by section 20 ;
“plant breeders’ rights” has the meaning assigned to it by section 4 of the Principal Act, (as
amended by section 5 );
“the Principal Act” means the Plant Varieties (Proprietary Rights) Act, 1980 ;
“protected variety” has the meaning assigned to it by section 15 ;
“unauthorised harvest material” has the meaning assigned to it by section 18 ;
“the Union” means the International Union for the Protection of New Varieties of Plants
founded by the Convention;
“variety of recent creation” has the meaning assigned to it by section 15 ;
“variety which is not clearly distinguishable” has the meaning assigned to it by section 4 of the
Principal Act, (inserted by section 5 ).
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(2) In this Act—
(a) a reference to a section or a Schedule is a reference to a section of, or a Schedule to,
this Act unless it is indicated that reference to some other enactment is intended,
(b) a reference to a subsection or a paragraph is a reference to the subsection or
paragraph of the provision in which the reference occurs unless it is indicated that
reference to some other provision is intended,
(c) a reference to any enactment is a reference to that enactment as amended, extended
or adapted by or under any subsequent enactment.
(3) In this Act a reference to the Council Regulation shall be construed as a reference to the
Council Regulation as amended, adapted or extended.
AMENDMENT OF SECTION 1 OF PRINCIPAL ACT.
2.— Section 1 of the Principal Act is hereby amended by—
(a) the substitution in subsection (1) of the following definition for the definition of
“variety”:
“‘variety’ means a plant grouping within a single botanical taxon of the lowest
known rank, which grouping, irrespective of whether or not the conditions for the
grant of a plant breeder's right are fully met, may be—
(a) defined by the expression of the characteristics resulting from a given
genotype or combination of genotypes,
(b) distinguished from any other plant grouping by the expression of at least one
of those characteristics, and
(c) considered as a unit in relation to the suitability of the plant grouping
concerned remaining unchanged following the propagation;”,
(b) the deletion in subsection (1) of the definitions of “authorisation”, “the Convention”,
“Convention country”, and “holder”,
(c) the insertion of the following definition in subsection (1):
“‘Contracting Party’ means a state or an intergovernmental organisation which is a
party to the Convention or in respect of which a declaration under section 2 of this
Act has been made;”,
and
(d) the substitution in subsection (2) of the following paragraph for paragraphs (c) and
(d):
“(c) whole plants or parts of plants for planting,”.
AMENDMENT OF SECTION 2 OF PRINCIPAL ACT.
3.— Section 2 of the Principal Act is hereby amended by—
(a) the substitution in subsection (1)—
(i) of “for the protection of intellectual property or any other relevant international
co-operation or agreement for the protection of intellectual property” for “for
the protection of plant varieties and plant breeders’ rights”, and
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(ii) of “Contracting Party” for “convention country” in each place where it occurs,
and
(b) the substitution in subsection (2) of “Contracting Party” for “convention country”,
and the said subsections (1) and (2), as so amended, are set out in the Table to this section.
TABLE
(1) For the purposes of enabling any international convention or agreement for the
protection of intellectual property or any other relevant international co-operation or
agreement for the protection of intellectual property to which the State is a party to be
carried into effect, the Government may by order declare one or more foreign countries,
which foreign country, or each of which foreign countries, shall be one whose government
or any of whose departments of state is a party to the convention or agreement, to be a
Contracting Party for the purposes of this Act, and for so long as the order remains in force
any foreign country which is one specified in the declaration contained therein shall be a
Contracting Party for the purposes of this Act.
(2) An order under this section may provide that the declaration contained therein shall
extend to any territory for the foreign relations of which the government of a foreign
country specified in such declaration considers itself responsible, and in case an order
under this section so provides then for so long as the order is in force as regards that
foreign country the territory to which the declaration is so extended shall for the purposes
of this Act be regarded as being a Contracting Party.
AMENDMENT OF SECTION 3 OF PRINCIPAL ACT.
4.— Section 3 of the Principal Act is hereby amended in subsection (12) by the insertion of
the following paragraph after paragraph (c):
“(d) authorise the Controller to make arrangements for the supervision of, the acquisition
of or access to the findings of tests, trials or examinations in relation to plant
breeders’ rights carried out by an applicant on the premises of that applicant or,
subject to the consent of the Controller, any other premises,”.
AMENDMENT OF SECTION 4 OF PRINCIPAL ACT.
5.—The Principal Act is hereby amended by the substitution of the following section for
section 4 :
“Plant breeders' rights.
4.— (1) In this Act ‘plant breeders’ rights’ means all proprietary rights in relation
to any variety of any plant genus or species which has been independently bred or
discovered and developed.
(2) Plant breeders’ rights which apply to a protected variety shall also apply to—
(a) a variety which is essentially derived from that protected variety, where
that protected variety is not itself an essentially derived variety,
(b) a variety which, having regard to the First Schedule to this Act (as
amended by section 14 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998) is not clearly distinguishable from that
protected variety, and
(c) a hybrid variety.
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(3) Subsection (2) shall not apply to an essentially derived variety which was
known to exist before the coming into operation of this Act.
(4) In this Act—
‘essentially derived variety’ means a variety that is essentially derived from another
variety if—
(a) the essentially derived variety is predominantly derived from that other
variety (in this Act referred to as the ‘initial variety’) or from a variety
that is itself predominantly derived from the initial variety, while retaining
the expression of the essential characteristics that result from the
genotype or combination of genotypes of the initial variety,
(b) it is clearly distinguishable from the initial variety,
(c) it conforms, except for the differences which result from the act of
derivation, to the initial variety in the expression of the essential
characteristics that result from the genotype or combination of genotypes
of the initial variety, and
(d) it may be obtained, without prejudice to the generality of the foregoing, by
the selection of a natural or induced mutant, or of a somaclonal variant,
the selection of a variant individual from plants of the initial variety,
backcrossing, or transformation by genetic engineering;
‘hybrid variety’ means a variety in respect of which the production of such variety
requires the repeated use of the protected variety;
‘variety which is not clearly distinguishable’ means a variety which is not clearly
distinguishable from the protected variety.”.
AMENDMENT OF SECTION 5 OF PRINCIPAL ACT.
6.— Section 5 of the Principal Act is hereby amended in subsection (1) by—
(a) the insertion in paragraph (a) after “or discovered” of “and developed”,
(b) the insertion in paragraph (a) after “duly assigned” of “or a person who bred or
discovered and developed it in the course of his or her employment,”,
(c) the deletion in paragraph (c) of “an Irish citizen or” and “either the State or”,
(d) the substitution in paragraph (c) of “member of the Union” for “party to the
Convention”,
(e) the insertion in paragraph (c) after “ section 2 of this Act applies” of “and a member of
the Union means a state party to the International Convention for the Protection of
New Varieties of Plants of 1961, 1972 or 1978 or a Contracting Party”, and
(f) the insertion of the following subsection after subsection (3):
“(4) Where an application for a grant of plant breeders’ rights is made by a
person who bred or discovered and developed a variety in the course of his or her
employment, the Controller, in determining such application, shall have regard to—
(a) an agreement, if any, between that person and the employer concerning the
entitlement to apply for a grant of plant breeders’ rights, and
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(b) any statutory provisions concerning the relationship between employer and
employee for the time being in force in—
(i) the country or territory in which such employee is wholly or mainly
employed, or
(ii) where the identity of such country or territory cannot be determined, the
country or territory in which the business of such employer is situate.”.
AMENDMENT OF SECTION 6 OF PRINCIPAL ACT.
7.—(1) Section 6 of the Principal Act is hereby amended by—
(a) the substitution of the following subsection for subsection (1):
“(1) Where two or more applications are made for plant breeders’ rights for the
same variety, the Controller, in considering the order of precedence of such
applications, shall have regard to the date of receipt of the applications concerned
and, subject to subsection (2) of this section, shall consider the application, having
regard to the date of receipt, which was the first such application received by the
Controller.”,
and
(b) the substitution of the following subsection for subsection (2):
“(2) Where the applications referred to in subsection (1) of this section were
received by the Controller on the same date and the time of such receipt on such
date cannot be established, the applications concerned shall rank equally in order of
precedence.”.
(2) Section 6 of the Principal Act is hereby amended in subsection (3) by—
(a) the substitution in paragraph (a) of “Contracting Party” for “convention country”,
(b) the substitution in paragraph (e) of “may be received” for “is received”,
(c) the insertion in paragraph (e) after “the documents” of “samples or other evidence”,
(d) the substitution of “as aforesaid.” for “as aforesaid, and, accordingly,”, and
(e) the deletion of all words from “the fact that another applicant” to the end of the
subsection.
(3) Section 6 of the Principal Act is hereby amended by—
(a) the substitution in subsection (4) of “the period of two years” for “the period of four
years”, and
(b) the substitution in subsection (5) of “the period of three years” for “the period of five
years”.
AMENDMENT OF SECTION 7 OF PRINCIPAL ACT.
8.—The Principal Act is hereby amended by the substitution of the following section for
section 7 :
“Protection of applicants while application pending.
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7.— (1) The holder shall, following the grant of plant breeders’ rights, be
entitled to compensation from any person who has in the relevant period
performed any act which such person would be prohibited from performing after
the grant of plant breeders’ rights.
(2) In this section the ‘relevant period’ means the period beginning on the day
on which the application for the grant of plant breeders’ rights is published in the
Journal and ending on the date of the grant of such plant breeders’ rights.”.
AMENDMENT OF SECTION 8 OF PRINCIPAL ACT.
9.— Section 8 of the Principal Act is hereby amended by—
(a) the substitution in subsection (1) of “satisfies him that, in relation to the public
interest,” for “satisfies him that”,
(b) the deletion in subsection (1) of “referred to in section 4 (5)(d) of this Act,”, and
(c) the deletion in subsection (2) of “(the name of which variety stands for the time being
entered in the register)” and “by a holder”,
and the said subsections (1) and (2), as so amended, are set out in the Table to this section.
TABLE
(1) Subject to the provisions of this section, if any person applies to the Controller and
satisfies him that, in relation to the public interest, a holder has unreasonably refused to
grant to the applicant an authorisation or, in granting or offering to grant such an
authorisation, has imposed or put forward terms which are either unreasonable or contrary
to the public interest, the Controller shall, if he is satisfied that the applicant is in a
position, and intends, to exercise rights in a competent manner which would be conferred
by such an authorisation, grant to the person in the form of a licence any such rights as
respects the relevant plant variety as might have been granted by the holder.
(2) Subject to the provisions of this section, if any person satisfies him that it is in the
public interest that a particular plant variety specified by the person has been distributed in
a manner which is not in the public interest or that such a plant variety should be widely
distributed, or that it is otherwise in the public interest to do so, the Controller shall grant
to the person in the form of a licence any rights as respects that variety as may be granted
by the relevant holder.
AMENDMENT OF SECTION 11 OF PRINCIPAL ACT.
10.— Section 11 of the Principal Act is hereby amended by—
(a) the substitution of the following subsection for subsection (1):
“(1) The Controller may—
(a) declare the grant of plant breeders’ rights null and void where the Controller
is satisfied that—
(i) the protected variety concerned did not, at the time of the grant, comply
with the conditions specified in either or both paragraph 1 or paragraph 4
of the First Schedule to this Act (as amended by section 14 of the Plant
Varieties (Proprietary Rights) (Amendment) Act, 1998),
(ii) the protected variety concerned did not, at the time of the grant, comply
with the conditions specified in either or both paragraph 2 or paragraph 3
of the First Schedule to this Act (as amended by section 14 of the Plant
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Varieties (Proprietary Rights) (Amendment) Act, 1998) where such grant
was obtained on the basis of information or documents or both furnished
by the applicant, and
(iii) the plant breeders’ rights were granted to a holder who was not entitled
to such grant,
but no such declaration shall be made under subparagraph (iii) of this
paragraph if the plant breeders’ rights concerned have been transferred to
the holder by the person properly entitled to such grant,
(b) cancel plant breeders’ rights in relation to a protected variety if the
Controller is satisfied that in relation to such protected variety concerned the
conditions specified in either or both paragraphs 2 and 3 of the First
Schedule to this Act (as amended by section 14 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998) are not being complied with,
(c) cancel the plant breeders’ rights in respect of a protected variety if the
holder fails, refuses or neglects to pay such fees as may be required to
maintain the grant of the plant breeders’ rights concerned, or
(d) cancel plant breeders’ rights of a protected variety if the holder does not
propose another suitable denomination where the denomination of the
protected variety concerned is cancelled.”,
(b) the substitution in subsection (2) of “cancel” for “revoke” and of “cancellation” for
“revocation” in each place where it occurs, and
(c) the substitution in subsection (3) of “cancels” for “revokes” and of “cancellation” for
“revocation”.
AMENDMENT OF SECTION 12 OF PRINCIPAL ACT.
11.— Section 12 of the Principal Act is hereby amended in subsection (5) by the substitution
of the following paragraph for paragraph (b):
“(b) For the purposes of this section the Minister may prescribe classes and species to
which varieties belong.”.
AMENDMENT OF SECTION 23 OF PRINCIPAL ACT.
12.— Section 23 of the Principal Act is hereby amended by—
(a) the substitution in subsections (1), (2) and (3) of “£1,500” for “£500” in each place
where it occurs, and
(b) the insertion after subsection (1) of the following subsection:
“(1A) If a person falsely represents that he or she is entitled to exercise any
Community plant variety rights granted under the Council Regulation, in relation to
any plant variety and in respect of which Community plant variety rights have or
have not been granted under the Council Regulation, and that person knows that
the representation is false or makes the representation recklessly, he or she shall be
guilty of an offence and shall be liable on summary conviction to a fine not
exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not
exceeding three months or to both such fine and such imprisonment.”.
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AMENDMENT OF SECTION 25 OF PRINCIPAL ACT.
13.— Section 25 of the Principal Act is hereby amended in subsection (1) by the insertion of
the following paragraphs after paragraph (d):
“(e) such fees in respect of any test or examination concerning genetically modified plant
varieties,
(f) such fees in respect of the supervision of any test or examination where such test or
examination is carried out on the premises of the breeder concerned or other
premises in agreement with the Minister,
(g) such administrative costs as may be incurred by the Controller concerning applications
under the Council Regulation, and
(h) such other fees,”.
AMENDMENT OF FIRST SCHEDULE TO PRINCIPAL ACT.
14.— The First Schedule to the Principal Act is hereby amended by—
(a) the substitution of the following paragraph for paragraph 1:
“Distinctness.
1. (1) The plant variety concerned—
(a) is not a matter of common knowledge at the time that application for
plant breeders’ rights is made, and
(b) is clearly distinguishable from any other plant variety the existence of
which is a matter of common knowledge at the time such application
is made,
and the distinguishing characteristic of that plant variety is recognisable and is
capable of description and recognition.
(2) For the purposes of this paragraph, common knowledge of a plant variety
shall be established when an application is made—
(a) for the grant of plant breeder's rights, or
(b) to enter the plant variety concerned in an official register of plant
varieties in any country or territory which is a Contracting Party.”,
(b) the substitution of the following paragraph for paragraph 2:
“Uniformity.
2. The plant variety concerned is sufficiently uniform in respect of the
characteristic concerned notwithstanding any variation arising from the
propagation of such plant variety.”,
(c) the substitution of the following paragraph for paragraph 3:
“Stability.
3. The characteristic of the plant variety concerned does not alter—
(a) after repeated propagation, or
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(b) where there is a particular cycle of propagation, at the end of each
such cycle.”,
and
(d) the substitution of the following paragraph for paragraph 4:
“Novelty.
4. Propagating or harvested material of the plant variety concerned, has not,
on the date on which an application for plant breeders’ rights is made, been sold
or otherwise disposed of to others, by or with the consent of the applicant, for
the purposes of exploitation of such plant variety either—
(a) in the State for a period that is greater than one year before the date
of an application for plant breeders’ rights, or
(b) in a territory other than that of the Contracting Party for a period that
is greater than four years, or in the case of trees or vines, for a period
that is greater than six years before that date.”.
Application for plant breeders’ rights.
15.—(1) A person may, subject to the provisions of the Acts, apply to the Controller for a
grant of plant breeders’ rights in relation to a variety of any plant genus or species and such
application shall be accompanied by the prescribed fee.
(2) Where, following an application under subsection (1), the Controller makes a grant of
plant breeders’ rights in relation to a variety (in the Acts referred to as the “protected
variety”), the Controller shall as soon as may be—
(a) issue under the seal of the Controller a certificate in the prescribed form specifying the
name of the variety of plant genus or species concerned,
(b) publish a notice of the granting of the certificate referred to in paragraph (a) in the
Journal, and
(c) enter the name of the variety of plant genus or species concerned in the register,
and the person to whom such plant breeders’ rights are granted shall be known as a “holder”.
(3) A certificate issued under subsection (2) of this section shall, unless the contrary is
shown—
(a) be deemed to be such certificate, and
(b) in any legal proceedings be evidence without further proof of the matters stated
therein.
(4) The minimum period in respect of which plant breeders’ rights may be exercised by a
holder shall—
(a) in respect of trees, vines and potatoes, be not less than 30 years, and
(b) in respect of all other varieties be not less than 25 years,
and each such period shall commence on the date of the grant of the plant breeders’ rights
concerned under this section.
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(5) Subject to subsection (10), the maximum period for which plant breeders’ rights may be
exercised by a holder shall—
(a) in respect of trees, vines and potatoes, be 35 years, and
(b) in respect of all other varieties, be 30 years.
(6) A statement in the register that a species of plant or each of the plants of a specified
group of plants is a fruit tree, forest tree, ornamental tree or grape vine shall, in relation to the
species of plant concerned, be evidence without further proof of the matters stated therein
unless the contrary is shown.
(7) The Minister may make regulations for the purpose of giving effect to this section.
(8) Where, on the date of the coming into operation of this Act, a variety (in this Act
referred to as a “variety of recent creation”) exists but an application for plant breeders’ rights
for the variety concerned has not been made by that date, an application for a grant of plant
breeders’ rights for the variety concerned may be made within the 12 months following the
date of the coming into operation of this Act but such plant breeders’ rights shall not be
granted in respect of the variety concerned if sale or other disposal of that variety has, with
the consent of the applicant, taken place not less than—
(a) 4 years before the coming into operation of this Act, or
(b) 6 years before the coming into operation of this Act if the variety concerned is a tree
or vine.
(9) A holder may assign any plant breeders’ rights granted to him or her under the Acts.
(10) The Controller, when making a grant of plant breeders’ rights, shall not include a
maximum period for the exercise of such plant breeders’ rights unless the plant variety
concerned belongs to a plant genus or species in respect of which an order under subsection
(11) has been made.
(11) The Minister may by order specify the maximum period for the exercise of plant
breeders’ rights of a plant genus or species.
LIMITATION OF PROTECTION.
16.—(1) Plant breeders’ rights shall not apply to any act referred to in section 18 carried out
in relation to any material—
(a) of the protected variety concerned which has been sold or otherwise offered for sale in
the State by the holder or with the consent of the holder, or
(b) of an essentially derived variety which has been sold or otherwise offered for sale in
the State by the holder or with the consent of the holder, or
(c) derived from the material specified in paragraph (a) or (b).
(2) Subsection (1) shall not apply to an act which involves—
(a) the further propagation of the protected variety concerned, or
(b) the export of any material which enables the propagation of the protected variety into
a country which does not protect varieties of the plant genus or species to which the
protected variety concerned belongs, unless such export is for the purpose of final
consumption.
(3) In this section “material” includes—
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(a) any propagating material of a variety, and
(b) any harvested material of a variety, including entire plants and parts of plants.
AUTHORISATION OF HOLDER.
17.— (1) A holder may grant an authorisation to another person to permit such other
person to carry out any or all of the acts specified in section 18 on a protected variety for
which authorisation is required and may include in such authorisation any conditions,
limitations or restrictions.
(2) A reference to an authorisation under this section is an authorisation in writing which has
been obtained from the holder by the person referred to in subsection (1) prior to the carrying
out of any of the acts for which authorisation is required and “authorisation” shall be construed
accordingly.
AUTHORISATION REQUIRED FOR CERTAIN ACTS, ETC.
18.— (1) A person shall not—
(a) produce, reproduce or cause the multiplication of any propagating material of a
protected variety,
(b) clean, process or otherwise condition any propagating material of a protected variety
for the purpose of propagation,
(c) sell or offer for sale, export or import any propagating material of a protected variety,
or
(d) keep a supply of any propagating material of a protected variety for any of the
purposes specified in paragraph (a), (b) or (c),
unless that person has obtained the authorisation of the holder.
(2) A person shall not—
(a) produce, reproduce or cause the multiplication of unauthorised harvest material of a
protected variety,
(b) clean, process or otherwise condition unauthorised harvest material of a protected
variety for the purpose of propagation,
(c) sell or offer for sale, export or import unauthorised harvest material of the protected
variety, or
(d) keep a supply of unauthorised harvest material of the protected variety for any of the
purposes specified in paragraph (a), (b) or (c),
unless that person has obtained the authorisation of the holder in relation to the protected
variety concerned or the holder has had a reasonable opportunity to exercise his or her plant
breeder's rights in relation to the unauthorised use of such propagating material.
(3) Where, in accordance with section 4 (2) of the Principal Act (inserted by section 5 ),
plant breeders’ rights apply to a variety specified in either paragraph (a), (b) or (c) of that
section, a person shall not—
(a) produce, reproduce or multiply the propagating material or unauthorised harvest
material,
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(b) clean, process or otherwise condition the propagating material or unauthorised
harvest material,
(c) sell or offer for sale, export or import the propagating material or unauthorised
harvest material, or
(d) keep a supply of the propagating material or unauthorised harvest material for any of
the purposes specified in paragraph (a), (b) or (c),
of that variety unless the holder has given an authorisation in respect of the matters so
specified.
(4) In this Act “unauthorised harvest material” means the material harvested from an
unauthorised use of the propagating material of a protected variety.
AUTHORISATION NOT REQUIRED FOR CERTAIN ACTS, ETC.
19.— (1) An authorisation, in relation to a protected variety, shall not be required for—
(a) any act done for private and non-commercial purposes,
(b) any act done for the purpose of breeding experimentation,
(c) any act done for the purpose of breeding another variety other than a variety specified
in section 4 (2) of the Principal Act (inserted by section 5 ),
(d) the use by a farmer for propagating purposes of the product of the harvest which that
farmer has obtained from propagating material of the protected variety on lands
owned or occupied by the farmer (in this section referred to as “farm saved seed”)
and the protected variety concerned is a variety of plant genus or species specified
in an order under subsection (2) and such use is referred to in this Act as the “farm
saved seed exemption”.
(2) The Minister may by order specify a variety of any plant genus or species to which the
farm saved seed exemption is to apply and the provisions of section 26 (3) of the Principal Act
shall apply to the making of such order.
(3) The Minister may by order amend or revoke an order made under subsection (2).
(4) Where a farmer uses farm saved seed of a variety specified in an order under subsection
(2), the farmer shall be liable to pay the holder remuneration which shall be sensibly lower,
within the meaning of Article 14.3 of the Council Regulation, than the amount charged for the
production of propagating material of the protected variety concerned.
(5) The obligation to pay the remuneration referred to in subsection (4) shall not apply to a
farmer who is considered, under Article 14.3 of the Council Regulation, to be a small farmer.
(6) The Minister may make regulations generally for the purpose of giving effect to the farm
saved seed exemption and such regulations may contain such incidental, supplementary and
consequential provisions as appear to the Minister to be necessary or expedient for the
purpose of the regulations.
INFORMATION NOTICE.
20.— (1) Where—
(a) a holder has reasonable grounds for believing that harvested material of a protected
variety is being offered for sale, and
(b) an authorisation has not been granted for the carrying out of—
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(i) any act specified in section 18 (1) in respect of the propagating material of the
protected variety, or
(ii) any act specified in section 18 (2) in respect of the unauthorised harvest material
of the protected variety,
the holder may request a person who sells or offers for sale such harvested material to furnish
information, in accordance with this section, in respect of such harvested material.
(2) A holder may serve a notice (in this Act referred to as an “information notice”) on a
person referred to in subsection (1) which shall be in the prescribed form and, without
prejudice to the generality of the foregoing, shall—
(a) state the denomination and species of the plant variety so offered for sale and the
name and address of the holder,
(b) specify the harvested material of the plant variety so offered for sale and to which the
information notice relates,
(c) require the person to whom it is addressed to provide—
(i) the name and address of the producer, the supplier and any prior owners of the
harvested material of the plant variety so offered for sale, and
(ii) information concerning the quantity of the harvested material of the plant variety
so offered for sale that was produced, ordered and delivered to that person,
and
(d) require the person to whom it is addressed to furnish the information to the holder
within 21 days of the service of such information notice.
(3) Where an information notice has been served in accordance with this section and the
person on whom such information notice has been served has not furnished or has failed to
adequately furnish the information so requested, for the purposes of proceedings for an
infringement of plant breeders’ rights concerning the offering for sale of the harvested material
of the plant variety specified in the information notice, it shall be presumed that—
(a) the harvested material of the plant variety so offered for sale was obtained by means
of an unauthorised use of the propagating material of the protected variety, and
(b) the holder did not have a reasonable opportunity before the harvested material was
obtained to exercise plant breeders’ rights in relation to the unauthorised use of the
propagating material,
unless the contrary is proved or there are reasonable grounds for not supplying or for failing to
adequately supply the information.
(4) A holder shall not use any information furnished pursuant to an information notice for
any purpose other than—
(a) establishing that there has been an infringement of plant breeders’ rights of the
protected variety referred to in the information notice, or
(b) use in proceedings for infringement of plant breeders’ rights of the protected variety
referred to in the information notice.
(5) An information notice shall be addressed to the person concerned and served on or given
to such person in one of the following ways—
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(a) by addressing it to the person by name and delivering it to that person,
(b) by leaving it at the address at which the person ordinarily resides or carries on any
trade or business or, in a case in which an address for service has been furnished,
at that address, or
(c) by sending it by post in a prepaid registered letter addressed to the person at the
person at the address at which that person ordinarily resides or carries on any trade
or business.
ACTION FOR INFRINGEMENT OF PLANT BREEDERS’ RIGHTS.
21.— (1) An infringement of plant breeders’ rights shall be actionable at the suit of the
holder and in any proceedings for such infringement all such relief, by way of damages,
injunction, account or otherwise, as is available in any corresponding proceedings in respect of
any other proprietary rights shall be available.
(2) Where, in civil proceedings for an infringement of plant breeders’ rights concerning an
allegation of the offering for sale of harvested material of a protected variety, an information
notice has been served in accordance with section 20 and the person on whom it was served
did not furnish the information or failed to adequately furnish the information so requested
within the 21 day period so specified, it shall be presumed that the provisions of section 20
(3)(a) or 20 (3)(b) or both shall apply to such proceedings unless, in accordance with that
section, the contrary is proved or the court is satisfied that there were reasonable grounds for
failing to supply or adequately supplying such information.
TRANSITIONAL PROVISIONS.
22.— (1) Where, before the commencement of this Act, an application has been made to
the Controller under section 4 of the Principal Act and a certificate under that section has—
(a) not been issued in respect of that application, or
(b) been issued under that section,
then—
(i) in the case of the application, it shall be deemed to be an application under
section 15 , and
(ii) in the case of the certificate, it shall, for the remainder of the period of operation,
be deemed to have been granted under section 15 .
(2) Where, before the commencement of this Act, an infringement of plant breeders’ rights
occurred and proceedings for such infringement had been issued under section 4 (5) of the
Principal Act, such proceedings shall be continued as if they had been issued under this
section.
(3) Where, before the commencement of this Act, an infringement of plant breeders’ rights
occurred and proceedings for such infringement had not been issued under section 4 (5) of the
Principal Act, such proceedings shall, if issued in respect of such infringement, be deemed to
be issued under this section.
(4) Notwithstanding any other provision of this Act, regulations made under the Principal Act
shall continue in operation and shall be deemed to have been made under this Act and to be
capable of amendment or revocation accordingly.
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REPEALS AND MISCELLANEOUS AMENDMENTS.
23.—(1) Sections 1 (4), 6 (3) (c), 12 (3) (b) (ii) and 25 (1) (e) of the Principal Act are
hereby repealed.
(2) Each section of or Schedule to the Principal Act specified in column (2) of the Schedule is
hereby amended in the manner specified in column (3) of the Schedule opposite the mention
of that section or that Schedule in column (2).
SHORT TITLE COLLECTIVE CITATION, CONSTRUCTION AND COMMENCEMENT.
24.—(1) This Act may be cited as the Plant Varieties (Proprietary Rights) (Amendment) Act,
1998.
(2) The Principal Act and this Act may be cited together as the Plant Varieties (Proprietary
Rights) Acts, 1980 and 1998, and shall be construed together as one Act.
(3) This Act shall come into operation on such day as the Minister may by order appoint.
SCHEDULE
Section 23 .
Ref.
No.
Section of
Principal Act
Amendment of Principal Act
(1) (2) (3)
1 Section 6 In subsections (3) (b) and (5), “section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998,” is substituted for “
section 4 of this Act”.
2 Section 9 In subsection (2) “specified in section 15 of the Plant Varieties (Proprietary
Rights) (Amendment) Act, 1998” is substituted for “prescribed under
section 4 (10) of this Act”.
3 Section 14 In subsection (1) the deletion of “4 (8), 4 (9),” and “paragraph” is
substituted for “Article”.
4 Section 15 In subsection (1) the deletion of “4” and the insertion after “of this Act” of
“and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)
Act, 1998,”.
5 Section 15 In subsection (1) (a) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.
6 Section 15 In subsection (1) (c) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “the said section 4,”.
7 Section 15 In subsections (1) (e) and (1) (k), “section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998,” is substituted for “
section 4 of this Act”.
8 Section 15 In subsection (1) (f) the deletion of “4” and the insertion after “21 or 22”
of “and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)
Act, 1998,”.
9 Section 16 In subsection (1) the deletion of “except such as falls within any genus or
species which is excluded from this section by regulations made under this
section by the Minister”.
10 Section 16 In subsection (3) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.
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11 Section 19 In subsection (1) (a), the deletion of “4,” and the insertion after “of this
Act” of “and section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,”.
12 Section 19 In subsection (1) (b) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “section 4” and the insertion
after “or” of “section”.
13 Section 23 In subsection (3) the insertion after “ section 4 of this Act” of “or
section 15 of the Plant Varieties (Proprietary Rights) (Amendment) Act,
1998”.
14 Section 24 In subsection (2) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.
15 Section 25 In subsection (1) (c) “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “ section 4 (3) of this Act”.
16 First Schedule In paragraph 6 “section 15 of the Plant Varieties (Proprietary Rights)
(Amendment) Act, 1998,” is substituted for “ section 4 of this Act”.
17 Second
Schedule
In paragraph 1 the deletion of “4” and the insertion after “of this Act” of
“and section 15 of the Plant Varieties (Proprietary Rights) (Amendment)
Act, 1998,”.
18 Second
Schedule
In paragraph 2 “paragraph” is substituted for “Article”.
(1)OJ No. L227/1, 1.9.94.