- LAW 3/2000 GOVERNING THEPROTECTION OF PLANT VARIETIES
- Table of Contents
- GROUNDS
- PREAMBLE GENERAL PROVISIONS
- PART I SUBSTANTIVE LAW
- PART II OFFENCES AND PENALTIES
- CHAPTER I REQUIREMENTS OF PLANT VARIETY
- CHAPTER II REQUIREMENTS OF THE APPLICANT
- CHAPTER III PLANT BREEDER RIGHTS
- CHAPTER IV THE PLANT BREEDER’S RIGHT AS A PROPERTY RIGHT
- CHAPTER V EXPLOITATION LICENSES
- CHAPTER VI NULLITY AND EXTINCTION OF THE PLANT BREEDER’S RIGHT
- PART II OFFENCES AND PENALTIES
- PART III ORGANIZATION
- PART IV PROCEDURE
- PART V FEES
- First additional provisionRevision of the amount of the penalties
- Second additional provisionInterpretation criteria
- Third additional provisionLimitation of the plant breeder's right
- Fourth additional provisionRespect for international Treaties and Conventions
- Fifth additional provision Community protection]
- First transitory provision Procedures initiated before the application of the present Law
- Second transitory provision Regime applicable to rights granted prior to the adoption of this Law
- Third transitory provision Current court actions
- Single derogatory provision
- ANNEX 1
KINGDOM OF SPAIN
LAW 3/2000 GOVERNING THE PROTECTION OF PLANT VARIETIES
Table of Contents* Grounds Preamble – General provisions Article 5. Conditions of variety Article 6. Novelty Article 7 Distinctness Article 8. Uniformity Article 9. Stability
Article 10. Entitled applicant Article 11. Nationality of applicant
Article 12. Scope of plant breeder's rights Article 13. Other cases that require the authorization of the holder Article 14. Exception for the benefit of the farmer Article 15. Limitations on the plant breeder's rights Article 16. Material of a variety Article 17. Limitations in the public interest Article 18. Duration of protection
Article 19. Independence of the plant breeder's right Article 20. Assignment of the right Article 21. Violation of the plant breeder's rights Article 22. Damages
Article 23. Contractual Licences Article 24. Compulsory licences Article 25. Compulsory cross-licences Article 26. Conditions attaching to compulsory licences
Article 27. Nullity of right Article 28. Lapse of the right
Article 29. Administrative offences Article 30. Penalties Article 31. Amount of the penalties
Article 32. Competent body Article 33. Official Protected Varieties Register Article 34. Plant Variety Protection Right Committee
PART IV Procedure
Article 35. Application Article 36. Priority application Article 37. Publication of the applications Article 38. Priority Right
Article 39. Examination of the application Article 40. Technical examination Article 41. Opposition to the grant of a plant variety right Article 42. Opposition procedure Article 43. Access to the information
Article 44. Resolution Article 45. Duration of the procedure Article 46. Expiry of the procedure
Article 47. Denomination requirements Article 48. Registration of the denomination Article 49. Use of the denomination
Article 50. Maintenance of the variety Article 51. Verification of the variety
Article 52. Passive subjects Article 53. Fee due in respect of procedure and decision Article 54. Fee for conduct of the technical examination Article 55. Maintenance fee Article 56. Fees for administrative services rendered Article 57. Administration and collection
First additional provision. Revision of the amount of the penalties Second additional provision. Interpretation criteria Third additional provision. Limitation of the plant breeder's right Fourth additional provision. Respect for international Treaties and Conventions Fifth additional provision. Community protection
First transitory provision. Procedures initiated before the application of the present Law Second transitory provision. Regime applicable to rights granted prior to the adoption of this Law Third transitory provision. Current law suits
Single derogatory provision. Repeals First final provision. Amendment to Law 11/1986 of 20 March 1986 – the Patent Law Second final provision. Additional application legislation Third final provision. Development of the Law Fourth final provision. Entry into force
ANNEX 1 Law in respect of which an exception may be admitted to Article 14 of the Law
ANNEX 2 Classification of plant species for the purpose of determining the amount of the fees in Articles 54 and 56
Law 3/2000, of 7 January governing the Protection of Plant Varieties
JUAN CARLOS I King of Spain
To all those who may see and here the following
Let it be known that Parliament has adopted and I have duly ratified the following Law.
The existence of a legal system for the protection of the rights of breeders of plant varieties will have a positive impact on the national economy in general and on the agricultural sector in particular in that it will stimulate the investigation and the consequent increase in private resources devoted to this activity, which will in turn facilitate the access of farmers to new technologies, improve farming productivity and, in the final analysis, result in an increase in the competitiveness of our products and the profits realised by farmers.
To date, the system for the protection of plant breeders has been covered by the International Convention for the Protection of New Varieties of Plants of 2 December 1961, administered by the International Union for the Protection of New Varieties Plants (UPOV), signed and ratified by the Kingdom of Spain, and embodied in Law 12/1975, of 12 March 1975, on the Protection of Plant Varieties based to a large extent on the said Convention.
2
There are two fundamental reasons that justify the adoption of new domestic legislation on the protection of plant breeders:
Firstly, it is necessary to adapt domestic legislation to a changing international legal environment. On one hand, the UPOV International Convention has been revised on various occasions; revisions introduced by the Conventions of 10 November 1972 and 23 October 1978 were incorporated into domestic legislation, yet the Convention of 19 March 1991 introduced novelties of which account must be taken in the law of the land.
Conversely, the European Union has adopted its own protection system with Council Regulations (CE) 2100/94 of 27 July 1994 governing Community protection of plant varieties. Nevertheless, Article 3 of these Regulations (CE) recognises the right of the States members of the European Union to "grant national property rights for plant varieties", although it expressly prohibits the simultaneous application of domestic and Community Law. The Spanish State opts for the establishment of its own protection system, although harmonised with that of the Community; in this connection, account should be taken of the fact that Community Law defers to domestic Law on all matters that could arise in connection with legal action that may be taken in respect of breaches of such a right.
Secondly, recent advances in biotechnology and genetic engineering that have accelerated the process of obtaining plant varieties and the experience acquired over the past twenty years, make it necessary and, of course, advisable to amend current legislation to bring it into line with all industrialised countries, not only of the European Union but also of other continents.
The fundamental objectives of the present Law, apart from adapting to international norms, is to reinforce the protection of plant breeders and to improve the operation of the public administration in the exercise of the functions relative to the matter governed by this Law.
The rights of plant breeders will be strengthened by the more precise and technically more perfect regulation of the facilities conferred on them by the plant breeder's rights, as well as the extended duration of protection for all plant species which, in turn, will encourage research in this field. Concretely, the main innovations of this Law are the following:
Firstly, it more precisely defines the facilities of plant breeders with respect to the exploitation of their protected varieties, clearly defining the Laws of third parties relating to such varieties that require the authorization of the breeders and it reinforces the action that can be taken against those who disregard such facilities.
Secondly, it clearly defines the term "farmer's exception" that refers to those situations in which farmers may avail themselves of the plant material produced on their own property for their own use without needing to obtain the authorization of the plant breeder of the variety used or making a payment to that breeder.
Besides the farmer's exception, some exceptions to the plant breeder's rights are clarified that were previously not very well defined. Possibly the most important is that of the use of the protected varieties as material for the creation of new varieties, thereby avoiding any limitation on research in this field. The concept of the essentially derived variety without a doubt plays an important role with respect to the limitation of the rights of plant breeders and will solve situations that in the past posed problems concerning the attribution of ownership of varieties.
Thirdly, the duration of protection for all plant species is increased, thereby offering greater incentive for research into the obtaining of new varieties and bringing these period into alignment with those applicable in other countries.
Fourthly, our legislation now offers the possibility of marketing plant varieties in Spain before requesting protection, so that the plant breeders may, before submitting to the protection system, determine, on the one hand, the practical results and productive value of a variety before incurring expenses that would not be covered in the case of varieties of mediocre results and, on the other, the reaction of farmers to the supply of new varieties.
An effort will be made to improve the operation of the organs involved in the exercise of these functions by more simply and precisely describing their functions and the procedures according to which they perform those functions. In general, the Law improves the operation of the various organs concerned by giving them a far more technical, legal and scientific content than they have had hitherto and by deeply involving representatives of economic agents.
From another point of view, this Law allows for greater international co-operation, not only with other States members of the European Union, but also with third countries, as the systems for establishing co-operation in this area become more flexible.
Furthermore, it should be pointed out that advantage is being taken of this Law to incorporate into domestic legislation Article 12 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions relating to the compulsory granting of cross-licences.
Finally, in the case of varieties that contain or consist of genetically modified organisms, Law 15/1994, of 3 June 1994 will be applied which determines the legal system governing the technical examination required for the confined use, voluntary release and commercialization of modified organisms in order to prevent risks to human health and the environment.
The present Law is issued pursuant to Article 149.1.9 of the Constitution that confers on the State exclusive jurisdiction to legislate on intellectual and industrial property and Article
149.1.1 that confers on the State the right to regulate the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and the performance of their constitutional obligations.
Article 1
Object of the Law Article 2
Definition of variety
1. For the purpose of this Law, 'variety' shall be taken to mean a group of plant within a single botanical taxon of the lowest known rank, which group, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be: 2. For the purpose of this Law, a plant group shall consist of entire plants or parts of plants as far as such parts are capable of producing entire plants.
Article 3
Definition of plant breeder Article 4
Scope of Application
The present Law shall apply to all plant genera and species including hybrids of genera or species.
PART I SUBSTANTIVE LAW
Article 5
Conditions of variety
1. Plant variety rights shall be granted for varieties that are: 2. The granting of plant variety rights may not depend on any conditions additional to or different from those mentioned, provided that the variety be designated by a denomination according to articles 47, 48 and 49, that the plant breeder has complied with the formalities foreseen by this Law and any complementary provisions and that he has paid the appropriate fees.
Article 6
Novelty
1. The variety shall be deemed new if, on the date of filing of the variety right application, the reproductive or vegetative multiplication material or a harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder for purposes of exploitation of the variety or, if this has been done, the following periods have not elapsed: 2. The condition of novelty shall not be deemed forfeit for sale or disposal to others in the following cases: Article 7
Distinctness 3. Common knowledge of the existence of another variety may also be deduced from the exploitation of the variety having commenced, the presence of the variety in a reference collection or from any other means of proof.
Article 8
Uniformity
A variety shall be deemed uniform if, subject to the variation that may be expected from the particular features of its sexual propagation or vegetative multiplication, it is sufficiently uniform in the expression of those characteristics.
Article 9
Stability.
A variety shall be deemed to be stable if the expression of its specific characteristics remains unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
Article 10
Entitled applicant Article 11
Nationality of applicant
The following individuals or bodies corporate may apply for the plant variety rights governed by the present Law: Article 12
Scope of plant breeder's rights 3. The holder may make his authorization subject to conditions and limitations. Article 13
Other cases that require the authorization of the holder 4. For the purposes of paragraph 3(a), a variety shall be deemed to be essentially derived from another variety, referred to hereinafter as 'the initial variety' when: Article 14
Exception for the benefit of the farmer
1. Farmers shall be authorized for the purpose of propagation on their own farms, to use the product of the harvest obtained from the sowing on such farms of material for the propagation of a protected variety that has been legally acquired and is neither hybrid nor synthetic. 4. Official bodies involved in verification may provide relevant information if they came by it in the ordinary performance of their duties and provided that this incurs no additional burden or cost. This provision shall be understood in accordance with domestic or Community provisions on personal data protection.
Article 15
Limitations on the plant breeder's rights
The plant breeder's rights shall not extend to: Article 16
Material of a variety
1. The plant breeder's rights shall not extend to Laws concerning any material of the protected variety, or of a variety covered by the provisions of Article 13(3), which has been disposed of or marketed to others by the holder or with his consent in Spain, or any material derived from the said material, unless such Laws: 2. For the purposes of the present Law, the word "material" used in relation to a variety shall be understood to mean: Article 17
Limitations in the public interest Article 18
Duration of protection CHAPTER IV
Article 19
Article 1. Object of the Law Article 2. Definition of variety Article 3. Definition of plant breeder Article 4. Scope of application PART I Substantive Law CHAPTER I Requirements of plant variety
CHAPTER II Requirements of the applicant
CHAPTER III Plant breeder rights
CHAPTER IV The plant breeder's right as a property right
CHAPTER V Exploitation licences
CHAPTER VI Nullity and extinction of the plant breeder's right
PART II Offences and penalties
PART III Organization
CHAPTER I Application
CHAPTER II Application procedure
CHAPTER III Resolution of the procedure
CHAPTER IV Denomination of the variety
CHAPTER V Maintenance of the plant breeder's right
PART V Fees
GROUNDS 1
PREAMBLE GENERAL PROVISIONS
CHAPTER I REQUIREMENTS OF PLANT VARIETY
CHAPTER II REQUIREMENTS OF THE APPLICANT
CHAPTER III PLANT BREEDER RIGHTS
THE PLANT BREEDER’S RIGHT AS A PROPERTY RIGHT