IMPLEMENTING REGULATIONS
OF THE LAW
ON THE PROTECTION OF THE NEW PLANT VARIETIES NO. 255/1998
CHAPTER I
RuIe 1
Breeders' rights on the new plant varieties, granted in the conditions of the Law, are recognized and protected in the territory of Romania, through the grant of a variety patent by the State Office for Inventions and Trademarks.
RuIe 2
For the purpose of the present regulations:
a) law means the Law on the protection of the new plant varieties No. 255/1998,
published in the Official Gazette of Romania no. 525 of December 31, 1998;
b) regulations means the Implementing Regulations of the Law on the protection of the New Plant Varieties No. 255/1998;
c) O.S.I.M. means the State Office for Inventions and Trademarks;
d) M.A.A. means The Ministry of Agriculture and Food Industry;
e) competent national authority means The State Institute for Testing and
Registration of Varieties (1.8.1.1.8.) or an authority designated by M.A.A.;
f) National Register of Variety Patent Applications means the register for entering the variety patent applications (RNCBS); g) National Register of Variety Patents means the register for entering the granted variety patents (RNBSP);
h) Official Bulletin of Industrial Property -the section for varieties protected by variety patents (BOP1-SSPBS);
i) authorized agent means the natural or legal person having the place of residence or headquarter in Romania, certified by O.S.I.M. and empowered to represent the applicant or the holder in the proceedings before the O.S.I.M.;
j) candidate variety means the variety for which an application for a variety patent was filed with O.S.I.M; k) protected variety means the bred and cultivated variety for which O.S.I.M. granted a variety patent; I) initial variety means the protected variety which may be the starting material for a new variety essentially derived;
m) dependent variety means the variety which, for the purpose of production, needs the repeated use of an initial protected variety, or which is essentially derived from a protected variety, provided that said variety is not in its turn essentially derived; the dependent variety may be the SUbject-matter of a variety patent independently from the protected initial variety, provided that it fulfils the distinctness, uniformity and stability conditions stipulated by the law;
n) essentially derived variety means the varietyderivedfromanotherprotectedinitiaI variety, provided that it is predominantly derived from the initial variety or from another variety which is predominantly derived from the initial variety and who keeps the expression of the essential characteristics resulting from a genotype of the initial variety or from a combination of genotypes; the essentially derived variety shall be clearly distinguishable from the initial protected variety by one or more characteristics which may be precisely described;
0) genetically modified variety means any variety obtained by genetic engineering; p) ornamental tree variety means a variety of trees belonging to any horticultural 0 r forest species on which breeding was developed;
q) variety ofcommun knowledge means a variety existing in a recognized reference
collection, in a gene bank or in an official catalogue! register and which may be reproduced
and cultivated whenever necessary.
2
CHAPTER II
Patentability of New Plant Varieties
O.S.I.M. grants a variety patent if the conditions provided for in Art. 5 of the Law, respectivelly novelty, distinctness, uniformity and stability, depending on the group of species, are fulfilled cumulatively, and if the variety has a correct denomination, according to Art. 15 of Law.
Rule 5
Novelty
Romania, earlier than one year before filing the application for a variety patent with O.S.I.M.; the breeder may sell the propagating or harvested material in order to prospect the market, earlier than one year before filing the application for a variety patent with O.S.I.M.;
(b) for the varieties created by foreign applicants, the exploitation or commercialisation of the variety in other countries, earlier than four years before filing the application for the variety patent with O.S.I.M.; for the species of trees or of vines the commercial exploitation is earlier than six years before the filing date of the application with
O.S.I.M.
Rule 6
Distinctness
in a member State of the International Union for the Protection of New Plant Varieties.
(5) As a rule, when establishing the distinctness of a variety, the characteristics regarding the agronomic value of the variety may also be taken into consideration; these are used only for the agricultural species and to the extent in which said characteristics are precise and not fluctuant due to the environment.
Rule 7
Uniformity
Rule 8
Stability
The stability of a candidate variety, within the meaning of Art. 9 of the Law, is determined after repeated propagation and in compliance with the specificity of each propagation cycle of the new variety, provided that the variety remains unchanged in the expression of the relevant characteristics for distinctness and for the variety description.
CHAPTER 111
Right to Protection
Rule 9
Right to a Variety Patent
CHAPTER IV
Procedure for the Examination of an Application
Rule 10
Filing the Application for Variety Patent
(1) Any natural or legal person who wants to protect a new variety and who is entitled to the grant of a variety patent, may file the application with O.S.I.M., directly or through an authorized agent.
(2) The application for the variety patent may be filed:
a) directly and with the confirmation of the receipt from the Receipt bureau of
O.S.I.M.; b) by mail, registered and with confirmation of the receipt; c) by electronic means, the original being afterwards sent by mail.
(3) The Receipt bureau writes down on the application the year, month and day of receipt.
Rule 11
Content of the Application for Variety Patent
(1) The application for the variety patent is drawn up in two copies, on standardized printed forms, and relates to only one variety.
(2) The application for the grant of a variety patent shall contain;
a) an express request for the grant of a variety patent;
b) name and surname Idenomination and address I registered office of the
applicant(s); c) name and surname / denomination and address Iregistered office of the breeder, if the breeder is not the same as the applicant; d) when the applicant is a foreign natural or legal person, the name of the state the citizen of which he is or the name of the state where he has the place of residence 0 r
registered office; e) when represented by an authorized agent, the name and place of residence thereof; f) identification of the botanical taxon, with both the Latin and common name of the species the variety belongs; g) provisional denomination of the variety given by the breeder on a separate printed form; h) in case of claiming the priority of a first application filed in another state, a priority declaration proving the date of the first filing;
i) a standardized description of the variety in compliance with the international quidelines on the description of protected varieties, with at least one colour reproduction annexed;
j) geographical origin of the variety;
k) the applicant's or his authorized agent's signature, as the case may be.
(3) The application for the variety patent shall be accompanied by the following documents:
a) proof of payment of the filing fee;
b) power of attorney for the representation of the applicant or holder, drawn up in
Romanian or accompanied by the legalized translation in Romanian; c) a declaration from the applicant on his own responsibility that the variety has not been commercialised, as provided in Art. 6 (1) of the Law;
d) name/denomination of the breeder and a declaration from the applicant, according to which, to the best of his knowledge, no other persons have been involved in breeding, discovery and development of the new variety;
e) the assignment contract, where the applicant is different from the breeder; f) documents confirming the priority in another state.
application.
Rule 12
Official Filing Date of the Variety Patent Application
(1) The official filing date of a variety patent application shall be the date of filing with
O.S.I.M. a variety patent application containing at least the elements provided for in Art. 12 (1) (a) to ( d) of the Law, drawn up in Romanian and accompanied by the proof of payment of the filing fee, as provided for in Art. 12 (3) (a) from the law.
(4) In case some elements of the application provided for in para (3) are missing,
O.S.I.M. notifies the applicant a time limit of 3 months to remediate.
(5) Where the applicant regulates the application within the time period provided fo r in para (4), the official filing date shall be the date of receipt of the documentation by
O.S.I.M.
(6) Failing the regulation of the application within the time limit, O.S.I.M. will consider that the application has not been filed and will return the documentation to the applicant, refunding the examination fees in case they have been paid.
Rule 13
Right of Priority
Rule 14
Variety denomination
(1) The protected variety shall by designated by a generic denomination to permit
its identification on the market. The denomination shall be specified in the granted variety patent.
(2) The denomination shall be proposed by the applicant and shall be transmitted to O.S.I.M. at the same time with the variety patent application, being filled in on separate printed form.
a) O.S.I.M. considers the denomination unsuitable for that variety; b) the denomination has already been used by third parties for said variety or for another variety and this may cause confusion on the autochtonous market. Under the conditions provided for in letter a) and b) O.S.I.M. shall request the applicant to propose another denomination for the candidate variety.
(9) The filing of the variety denomination shall be refused if it contains an elemen t liable to cause a damage or to give rise to a risk of confusion with another trade name of other variety or of a trademark, or of another previously protected industrial or intellectual property right.
(10) Where O.S.I.M. considers that the provisions of Art. 15 from the Law are fulfilled, the denomination proposed by the applicant for the candidate variety is published in BOPI-SSPBS.
c) there exists a final and irrevocable decision forbidding the use of the denomination for that variety.
Rule 15
Examination of the Application as to Form
(1) The examination of the variety patent is performed by O.S.I.M. that shall check whether the documentation filed by the applicant satisfies the provisions of Art. 10 para (1) to (4) and of Art. 12 of the Law.
(2) O.S.I.M. examines, according to the provisions of Art. 10 para (1) to (4) of the
Law, whether: a) the applicant is the breeder; b) the right to the grant of the variety patent belongs to more breeders; c) the right to the grant of the variety patent belongs to the breeder and to other
person jointly, according to the written declaration signed by them; d)the breeder being an employee and creating the variety during his employment, the right to the patent belongs to the employer.
(3) O.S.I.M. examines, according to the provisions of Art. 12 of the Law, whether
the variety patent application contains:
a) the applicant's name/denomination and address/headquarter;
b) the proposal of denomination for the new variety;
c) the botanical taxon/Latin name of the genus, family, species, subspecies to which the variety belongs, common and/or trade name;
d) the geographic origin of the new variety;
e) the presentation of the new variety in standardized form, according to the international norms for the description of a new variety belonging to a species; if this is not correct, the applicant is granted a two-month time limit to remedy it; f) the claimed priority of a first application for the candidate variety as well as the priority documents; g) wether the variety patent application is accompanied by the proof of payment of the filing fee;
h) wether there exists a power of attorney signed by the applicant;
i) the applicant's declaration on his own responsibility, that he did not market the
new variety, according to the provisions of Art. 6 of the Law;
j) the name and address of the applicant or applicants involved in breeding or discovering and developing the new variety;
k) the document of assignment of the right to the grant of the variety patent, if the case may be;
I) other documents and information concerning the origin and crop cultivating conditions for the candidate variety.
Rule 16
Substantive Examination of the Application
(1) The variety patent application which fulfils the conditions provided for in Art.16 para (1) of the Law shall be examined as to the substance on the basis of the information provided by the applicant, in order to verify whether:
a) the application refers to a variety within the meaning of Art. 2 letter a) of the Law;
b) the variety belongs to the declared botanical taxon;
c) the candidate variety is new according to the provisions of Art. 6 of the Law;
d) the denomination, proposed by the applicant is correct and fulfils the provisions of Art, 15 of the Law.
Rule 17
Technical Examination of the New Variety
(1) I.S.T.I.S. or the authority designated by M.A.A. shall perform an examination in accordance with Art. 8 of the Law, in order: a) to verify that the candidate variety belongs to the botanical taxon declared by the applicant and identified during the formal examination; b) to establish that the variety is distinct, uniform and stable within the meaning of Art.7 to 9 of the law;
c) to establish that the official description of the new variety is drawn up so as to permit the differentiation of that variety from the reference variety.
(2) When the applicant does not submit the findings of the tests for the new variety conducted by another internationally recognized competent authority, autochtonous growing tests for distinctness, uniformity and stability shall be developed:
a) by I.S.T.I.S. or another authority on behalf thereof, designated by M.A.A.; b) by the applicant, upon request by I.S.T.I.S. or O.S.I.M. for the rare species for which there does not exist the reference collection.
Where the protection is rejected and the decision is appealed against, the applicant may request the repetition of the trials, provided that the prescribed fee for verification of the growing tests of the annex to the Law is paid.
Upon expiry of this time-limit, if the applicant fails to answer, O.S.I.M. to rejects the variety patent application and publishes the decision of rejection in BOPI-SSPBS.
(11) During the entire period of examination of the new variety, O.S.I.M. and the competent national authority shall inform each other about the examination procedure of the variety patent application.
(12) The decision to reject the variety patent application may be appealed against by the applicant before the O.S.I.M. Board of appeal, within three months from the communication.
The appeal may be lodged in writing with a statement of reason and the prescribed fee provided for in the annex to the Law shall be paid.
(13) The Board of Appeal may decide, as the case may be:
a) to accept the applicant's appeal and grant the patent for the candidate variety;
b) to accept the applicant's appeal and to return the variety patent application to the
substantive examination board and, where applicable, requestthe repetition of the growing tests; c) to reject the appeal and keep the decision of rejection of the application.
(14) The decisions taken by the Board of appeal are registered in RNCBS and are published in BOPI-SSPBS.
Rule 18
Testing the New Variety
(3) Where the growing tests are conducted according to Art. 19 para (3) of the Law,
O.S.I.M. together with the competent national authority shall establish the amount of propagating material necessary for organizing the trials, the place and the address where the applicant shall submit the material.
(4) O.S.I.M. and/or I.S.T.I.S or the authority designated by M.A.A. may request the
18
applicant to submit all information, materials and documents necessary for the conducting of the technical examination.
Rule 19
O.S.LM. Decisions
Rule 20
Provisional Protection
Rule 21
Extension of the Time Limit
Rule 22
Withdrawal of Variety Patent Application
Rule 23
Revocation of the Decision to Grant a Variety Patent
(1) The decision to grant the variety patent is published in BOPI-SSPBS.
(2) Within 3 months from the date of publication any interested person may apply to O.S.I.M. for the revocation of the decision to grant a variety patent, only where the following conditions have not been met:
a) the variety is not new;
b) the variety is not distinct;
c) the variety is not uniform;
d) the variety is not stable;
e) the applicant is not the person entitled to be granted protection;
f) the variety denomination is not adequate or infringes previous rights.
The request for revocation shall be made in writing with statement of reason and
shall be accompanied by the proof of payment of the examination fee prescribed in the Law, and by the documents supporting the revocation.
Rule 24
Issue of the Variety Patent and Registration
of the Variety Denomination
CHAPTER V
Rule 25
Duration of Variety Protection
(1) The term of protection of the variety shall be 25 years as from the date of grant of the variety patent.
(2) For the new varieties of fruit-trees, vines and ornamental trees, forest tree s
22
included, the duration of protection is of 30 years as from the date of the grant of the variety patent.
(3) During the whole variety protection period, the applicant shall pay the annual maintenance fees of the variety patent at the terms prescribed in the annex to the Law.
CHAPTER VI
Right of the Variety Holder
Rule 26
Exclusive Right of the Variety Patent Holder
In implementing the provisions of Art. 27 of the Law, the variety patent holder shal I enjoy the exclusive right of exploitation of the new variety and the right to prevent third party without his authorization from performing the following acts,in relation to the propagating material: production and reproduction of the biological material for the purpose of propagation, processing for the purpose of propagation, offering for sale or selling, exporting or importing and stocking for these purposes.
Rule 27
Exceptions to the Exclusive Right of the
Variety Patent Holder
Any interested person may perform, without the holder's authorization, the following acts, according to the provisions of Art. 28 of the law: a) the use of the protected variety for personal and non-commercial purpose, for example by the farmer for his household necessities or by an amateur in his garden;
b) the use of the protected variety for experimental purposes and in the process of breeding, which allows to carry on the use of the protected varieties and ensures the of breeding of new varieties.
Rule 28
Exhaustion of the Variety Patent Holder's Rights
(1) Within the meaning of Art. 29 of the Law, the acts relating to any material of the protected variety shall not be considered an infringement of the holder's rights to the protected variety or to a variety covered by the provisions of Art. 27 of the Law, if sold or marketed by the breeder or with his consent.
(2) Within the meaning of para (1), material is considered:
a) the propagating material of any kind;
b) entire plants or parts of plants; and
c) any product made directly from the harvested material.
CHAPTER VII
Lapse of the Variety Patent
Rule 29
Invalidation of the Variety Patent
(1) Any interested person may file a request for invalidation of the variety patent
with O.S.I.M. any time during the period of protection for any of the reasons provided for in Art. 30 para (2) of the law.
a) the interested person proves that at the date of filing the variety paten t application, the variety did not fulfil the novelty requirement condition in terms of Art. 6 of the Law;
b) the interested person proves that the variety was not distinct in terms of Art. 7 of the Law;
24
c) the variety was not uniform in terms of Art. 8 of the Law;
d) the variety was not stable in terms of Art. 9 of the Law on the date of granting the variety patent;
e) finds out, based on the notification submitted by the interested person, that the applicant was not entitled to be granted protection.
6) The decision of the Board of Appeal shall be submitted to the parties within 15 days from the pronounciation and it may be challenged under Art. 38 of the Law.
Rule 30
Forfeiture of Rights
(3) The holder shall enjoy a six-month time limit from the date of publication of forfeiture and may request the revalidation of the variety patent after having corrected the deficiencies and having paid the related annual fee.
Rule 31
Renunciation to the Variety Patent
26
CHAPTER VIII
EXPLOITATION OF THE PROTECTED VARIETY
Rule 32
Maintenance of the Protected Variety
(4)The holder is obliged to submit information and documents attesting the existence of the protected variety upon request by a.S.I.M.
(5) Where the holder does not comply with the requests by a.S.I.M. and lor I.ST.I.S or by the authority designated by M.A.A., a.S.I.M. shall declare his rights under the variety patent forfeit, in accordance with Art. 31 (1) (a) from the law.
Rule 33
Transfer of variety rights
a) assignment contract
b) licence contract
c) act of legal or testamentary successions
d) other documents for proving the new holder.
(4) The transfer of rights shall not affect the previous rights of third parties.
Rule 34
(1) The assignment is made in writing by an assignment contract in which the identification data of the breeder and of the person to whom the is assignment was made are mentioned, the object of assignment, also the data and the interested parties signatures in authentical form.
Rule 35
Licence contract
28
Rule 36
Compulsory license
the holder.
Rule 37
Chapter X
Rule 38
(1) For the implementing of Art. 44 para (2) of the Law, OSIM's competences
are:
a) registers the variety patent applications
b) publishes in BOPI -SSPBS the variety patent applications having official filing date c) examines the variety patent application as to form and substantive respectively to be in conformity with Rules 15 and 16
d) sends the formally and substantively examined and admitted application to the national competent authority for validation when the applicant filed the findings after technical examination or for organising growing tests in order to establish distinctness, uniformity and stability of the candidate variety.
e) grants and issues variety patents and establishes the final description based on findings sent by \STIS or by the competent authority designated by M.A.A. in a standardized form.
f) organizes and keeps RNCBS and RNBSP.
(2) OSIM periodically issues BOPI-SSPBS comprising all information regarding the variety patent applications and the granted variety patents.
(3) OSIM publishes in BOPI the information as follows:
a) variety patents applications
b) the denominations of the varieties
c) registered denominations for the protected varieties
d) the withdrawn variety patents applications
e) the rejected applications
f) variety patents granted
g) the changing of persons respectively applicants and holders
h) the changing of authorized agents
I) the invalidation of variety patents
j) licences
k) all modifications and observations.
a) establishes the methodology of conducting the growing tests and organising the trials in the field and/or in greenhouses in conformity with the existing experience in the country and in accordance with international guidelines,
b) establishes the flow of technical examination of plant varieties,
c) cooperates with OSIM, breeders' national association, variety patents, holders association, seed and plant, material multiplication producers associations and with other bodies specified in Article 44 para (3) lit. b) of the Law.
d) establishes different criteria of evaluation of the new varieties of plants and
32
of the changing of the methodology and appoints experts or researcher-breeders to produce the methodology of conducting the growing tests and identifying new varieties and species of plants.
e) designates crop experts for the OSIM's Board of Appeal in cases of appeal in which technical examination of the candidate variety is involved.
Rule 39
Time limits
Rule 40
33
Rule 41
In National Register of Variety Patent Applications (RNCBS) are published the indications as follows:
a) number of the application
b) species, botanical taxon and the denomination
c) official filing date
d) name and address of the applicant
e) name and address of the breeder
f) name and address of the agent
g) modifications in the legal status.
Rule 42
In the National Register of Protected Varieties several indications are registered:
a) date and number of the application filed with OSIM
b) priority date
,
c) official filing date
d) name and the address of the applicant
e) State on which territory the applicant has the place of residence
f) name and address of the agent
g) name and address of the breeder
h) botanical taxon
I) final denomination of the variety
j) name/denomination and address/ holder's headquarter
k) changing of the address and of the holder's name
I) any modifications or transfer of rights
m) payment of issuing and maintenance of variety patent fees
n) variety patent holder
0) declaration of renunciation to the variety patent
p) decision of annulment or invalidation of the variety patent, as the case may be.