Loi sur la protection des obtentions végétales (modifiée jusqu'au 17 juillet 1997), Allemagne, WIPO Lex

Texte(s) princip(al)(aux)

Anglais Plant Variety Protection Act (as amended up to July 17, 1997)

Télécharger le PDF open_in_new

CHAPTER ONE CONDITIONS AND CONTENT OF PLANT VARIETY PROTECTION
CHAPTER TWO THE FEDERAL OFFICE OF PLANT VARIETIES
CHAPTER THREE PROCEEDINGS BEFORE THE FEDERAL OFFICE OF PLANTVARIETIES
CHAPTER FOUR COURT PROCEEDINGS
CHAPTER FIVE INFRINGEMENTS
CHAPTER SIX FINAL PROVISIONS
Article 41 Transitional Provisions
Article 42 Entry into Force
ANNEX

GERMANY

The Plant Variety Protection Law^{^*}

Consolidated Text of the Plant Variety Protection Law
of December 11, 1985,
as Amended by the Law to Reinforce the Protection of Intellectual Property
and to Combat the Piracy of Products of March 7, 1990,^{^**} by the First Amendment Law of March 27, 1992^{^***}and by the Second Amendment Law of July 17, 1997^{^****}

CHAPTER ONE

CONDITIONS AND CONTENT OF PLANT VARIETY PROTECTION

Article 1

Conditions for Plant Variety Protection

(1) Protection shall be granted for a plant variety (hereinafter referred to as a “variety”), provided such variety is

distinct,
homogeneous,
stable,

* German title: Sortenschutzgesetz; Source: Bundesgesetzblatt I, page 2170 ^{^**}German title: Gesetz zur Stärkung des Schutzes des geistigen Eigentums und zur Bekämpfung der Produktpiraterie vom 7. März 1990; Source: BGBl. I, page 422 ^{^***}Entry into force (of latest amendments): April 8, 1992 ^**** Source: Bundesgesetzblat Jahrgang 1997 Part I No. 51

new and
designated by means of a registrable variety denomination.

(2) Protection under this Law shall not be granted for a variety that is the subject matter of a Community plant variety right.

Article 2
Definitions

For the purposes of this Law:

1. “Species” shall mean species of plants, and also groupings and
subdivisions of species of plants,

1a. “Variety” shall mean a grouping of plants or parts of plants, as far as such parts are capable of producing entire plants, within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are met, can be:

(a): defined by the expression of the characteristics that results 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 with regard to its suitability for being propagated unchanged.

“Propagating material” shall mean plants and parts of plants, including seeds, intended for the production of plants or for any other growing,
“Marketing” shall mean offering, keeping available for sale, placing on sale or any kind of disposing of to other parties,
“Filing date” shall mean the day on which the application for plant variety protection is received by the Federal Office of Plant Varieties,
“Member State” shall mean a member State of the European Economic Community,
“Union member” shall mean a State or intergovernmental organization that is a member of the International Union for the Protection of New Varieties of Plants.

Article 3

Distinctness

(1): A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of at least one significant characteristic from any other variety that is a matter of common knowledge on the filing date. The Federal Office of Plant Varieties shall communicate on request for every species those characteristics it deems significnt for the distinctness of varieties of that species; the characteristics must be capable of precise recognition and description.

Article 4

Uniformity

A variety shall be deemed to be uniform if, apart from variations due to the particular features of its propagation, it is sufficiently uniform in the expression of those characteristics that are significant for distinctness.

Article 5

Stability

A variety shall be deemed to be stable if the expression of the characteristics significant for distinctness remain unchanged after each propagation or, in the case of a cycle of propagation, after each such cycle.

Article 6

Novelty

(3): Propagating material of a variety that is repeatedly used for the production of another variety shall only be deemed as disposed of within the meaning of paragraph (1) if plants or parts of plants of the other variety have been disposed of.

Article 7

Variety Denomination

(1): A variety denomination shall be registrable if no grounds for exclusion under paragraphs (2) or (3) exist.

The Federal Office of Plant Varieties shall communicate those species it deems to be related within the meaning of item 4.

(3) Where the variety has already been entered in an official list of varieties or entry in such list has been applied for

in another member State or another Union Member or
in another State which, according to a declaration in legal acts of the European Communities, to be notified by the Federal Office of Plant Varieties, evaluates varieties in accordance with rules that correspond to the Guidelines for the Common Catalogues of Varieties,

only the variety denomination so entered or declared shall be registrable. This shall not apply where grounds for exclusion under paragraph (2) are opposed thereto or the applicant reasonably establishes that an opposing third party right exists.

Article 8

Entitlement to Variety Protection

(1): The original breeder or discoverer of the variety or his successor in title shall be entitled to variety protection. If more than one person has bred or discovered the variety jointly, the entitlement shall belong to such persons jointly.
(2): The applicant shall be considered the entitled person in proceedings before the Federal Office of Plant Varieties unless it comes to the knowledge of the Federal Office of Plant Varieties that he is not entitled to variety protection.

Article 9

Persons not Entitled to Apply

(1): If a person not entitled to protection has filed an application, the entitled person may require that the applicant transfer to him the claim to the grant of variety protection.
(2): If variety protection has been granted to a person not entitled thereto, the entitled person may require that the owner of variety protection transfer variety protection to him. Such claim shall expire five years after notification of the entry in the Plant Variety Protection Register, except where the owner of variety protection was not acting in good faith in obtaining variety protection.

Article 10

Effect of Variety Protection

(1) Subject to Articles 10a and 10b, variety protection shall have the effect that the owner of variety protection alone shall be entitled:

1. (a) to produce, to condition for the purpose of propagation, to place on the market, to import or export propagating material of the protected variety or

(b) to stock such material for any of the purposes mentioned in item (a),

2. To carry out any acts mentioned in item 1 with respect to other plants or parts of plants or directly obtained products thereof if propagating material was used in their production without the consent of the owner of variety protection and the owner of variety protection had had no opportunity to exercise his right in relation to such utilization.

(2): The effect of variety protection under paragraph (1) shall also extend to:

(3): A variety shall be deemed to be an essentially derived variety if:

Article 10a
Limitation of the Effect of Variety Protection

(2): The effect of variety protection shall also not extend to harvested material that a farmer has obtained on his own holding by sowing propagating material of a protected variety of the species contained in the list at annex, with the exception of hybrids and synthetic varieties, and has used it as propagating material (farm saved seed) on condition that the farmer complies with the obligations laid down in paragraphs (3) and (6). For the purpose of farm saved seed, the harvested material may be conditioned by the farmer or by an undertaking (conditioner) acting on his behalf.
(3): A farmer who avails himself of the possibility of using farm saved seed shall be required to pay the owner of the variety protection an equitable remuneration. Remuneration shall be deemed equitable where it lies notably lower than the amount agreed for the production of propagating material of the same variety in the same area on the basis of an exploitation right under Article 11.
(4): Agreements between owners of variety protection and farmers as to the equitable nature of remuneration may be based on corresponding agreements between the professional organizations. They may not exclude competition in the seed sector.
(5): The requirement to pay under paragraph (3) shall not apply to small farmers within the meaning of Article 14(3), third indent, of Council Regulation (EC) No. 2100/94 of 27 July, 1994 on Community Plant Variety Rights (OJ No. L227 page 1).
(6): Farmers availing themselves of farm saved seed and any conditioners acting for them shall be required to provide the owners of variety protection with information as to the volume of farm saved seed.
(7): The Federal Ministry of Food, Agriculture and Forestry shall be empowered to amend the list of species contained in the annex by statutory order where necessary to adapt it to the Community Plant Variety List.

Article 10b

Exhaustion of Variety Protection

Variety protection shall not extend to acts concerning plants, parts of plants or directly obtained products (material) of the protected variety or of a variety to which variety protection under Article 10(1)(1) also extends, that has been placed on the market by the owner of variety protection or with his consent, unless such acts

involve further production of propagating material where the aforementioned material was not intended for that purpose on disposal or
involve an export of material of the variety permitting propagation of the variety to a country that does not protect varieties of the species to which such variety belongs; this provision shall not apply if the exported material is intended for sowing.

Article 10c

Suspension of Variety Protection

If the owner of variety protection granted under this Law obtains a Community plant variety right for the same variety, the variety protection granted under this Law may not be asserted for the duration of the Community plant variety right.”

Article 11

Legal Succession, Exploitation Rights

(2): Variety protection may be the subject of exclusive or non-exclusive exploitation rights in part or in whole.
(3): Where a person entitled to exploit contravenes a limitation of the right of exploitation under paragraph (2), variety protection may be invoked against him.

Article 12

Compulsory Exploitation Rights

(1): The Federal Office of Plant Varieties may on request, insofar as it appears justified in the public interest, taking into account the economic acceptability for the owner of variety protection, grant a compulsory exploitation right in respect of variety protection as regards the rights under Article 10, under reasonable conditions where the owner of variety protection has granted no exploitation rights or insufficient exploitation rights. When granting the compulsory exploitation right, the Federal Office of Plant Varieties shall determine the conditions thereof, particularly the amount of the remuneration to be paid to the owner of variety protection.
(2): On expiry of one year after the grant of the compulsory exploitation right, any of the parties may request renewed determination of the conditions. The request may be repeated each time on expiry of one year; the sole grounds for such request may be that the circumstances that were decisive for the determination have in the meantime undergone considerable change.
(3): Before taking its decision on the grant of a compulsory exploitation right or on a new determination, the Federal Office of Plant Varieties shall hear the professional associations concerned.

Article 13

Duration of Variety Protection

Variety protection shall extend to the end of the twenty-fifth calendar year or, in the case of grapevine, hop, potato and tree species, the end of the thirtieth calendar year following the year of grant.

Article 14

Use of the Variety Denomination

(1): Propagating material of a protected variety may only be marketed-except privately and for noncommercial purposes--if the variety denomination is stated in relation thereto; where it is stated in writing, it shall be readily distinguishable and clearly legible. This shall also apply after expiry of variety protection.
(2): Rights in a designation that is identical with the variety denomination may not be used to prohibit the use of the variety denomination for the variety. Prior rights of third parties shall not be affected.
(3): The variety denomination of a protected variety or of a variety for which breeders’ rights have been granted in another Union Member or a designation which may be confused with it may not be used for another variety of the same or of a related species.

Article 15
Scope of Application in Respect of Persons

(2): A person who has neither a place of residence nor an establishment in a Contracting State may only participate in procedures governed by this Law or assert rights under this Law if he appoints a representative (representative in procedures) having his place of residence or business premises in a Contracting State.”

CHAPTER TWO

THE FEDERAL OFFICE OF PLANT VARIETIES

Article 16

Nature and Tasks

(1): The Federal Office of Plant Varieties shall be an autonomous senior federal authority within the purview of the Federal Ministry for Food, Agriculture and Forestry.
(2): The Federal Office of Plant Varieties shall be responsible for the granting of variety protection and for related affairs. It shall keep the Plant Variety Protection Register and shall verify the continuing existence of the protected varieties.

Article 17

Members

(1): The Federal Office of Plant Varieties shall consist of a President and other members. They must have special competence in the field of plant varieties (technical members) or be qualified for judicial office under the German Law Relating to Judges (legal members). They shall be appointed by the Federal Ministry for Food, Agriculture and Forestry for the duration of their activity with the Federal Office of Plant Varieties.
(2): As a rule, only such person shall be appointed as a technical member who has successfully undergone a State or academic examination following a scientific course in a subject relevant to his activity at the Federal Office of Plant Varieties at a university within the country or a final examination following equivalent studies abroad and has also worked for at least three years in the corresponding technical area and who possesses the necessary legal knowledge.
(3): Where there exists a need that is expected to be limited in time, the President may appoint persons as assistant members to carry out the duties of members of the Federal Office of Plant Varieties. Such appointments may be for a specified period or for as long as needed and may not be terminated during such period. In other respects, the provisions regarding members shall also apply to assistant members.

Article 18
Examining Sections and Opposition Boards

(1) There shall be set up within the Federal Office of Plant Varieties

examining sections,
opposition boards for variety protection matters.

The President shall determine their number and shall decide on the allocation of duties.

(3): The opposition boards shall be responsible for decisions on opposition against decisions taken by the examining sections.

Article 19
Composition of the Examining Sections

(1): The examining sections shall in each case comprise one technical member of the Federal Office of Plant Varieties designated by the President.
(2): Decisions in the cases under Article 18(2), items 2, 5 and 6, shall be taken by the examining sections composed of three members of the Federal Office of Plant Varieties designated by the President, one of whom shall be a legal member.

Article 20

Composition of the Opposition Boards

(1): The opposition boards shall in each case comprise the President or another member of the Federal Office of Plant Varieties designated by the President as Chairman, two further members of the Federal Office of Plant Varieties designated by the President as assessors and two honorary assessors. The members of the Federal Office of Plant Varieties shall comprise two technical members and one legal member.
(2): The honorary assessors shall be appointed by the Federal Ministry of Food, Agriculture and Forestry for a term of six years; they may be reappointed. Where an honorary assessor retires prematurely, his replacement shall be appointed for the remaining term of office. The honorary assessors should possess special technical knowledge in the field of plant varieties. Owners or employees of breeding establishments and employees of breeders’ associations shall not be appointed. An alternate shall be appointed for each honorary assessor; the first to fourth sentences shall apply mutatis mutandis.
(3): The opposition boards shall be capable of taking decisions in the presence of the Chairman and of one assessor, one of whom must be legally qualified, and of an honorary assessor.”

CHAPTER THREE

PROCEEDINGS BEFORE THE FEDERAL OFFICE OF PLANT
VARIETIES

Article 21

Formal Administrative Procedure

The provisions of Articles 63 to 69 and 71 of the Law on Administrative Procedure concerning formal administrative procedures shall apply to proceedings before the examining sections and the opposition boards.

Article 22

The Application for Variety Protection

(1): The applicant shall state the name of the original breeder or breeders or discoverer or discoverers of the variety in the application for variety protection and shall certify that, to the best of his knowledge, no further persons have been involved in the breeding or discovery of the variety. If the applicant is not the original breeder or discoverer or is not the only original breeder or discoverer, he shall be required to state how the variety came into his possession. The Federal Office of Plant Varieties shall not be obliged to verify such statements.
(2): The applicant shall state the variety denomination. For the purposes of the procedure for granting variety protection, he may state, with the consent of the Federal Office of Plant Varieties, a provisional designation.

Article 23

Chronological Order of the Application for Variety Protection

(1): The chronological order of the application for variety protection shall be determined, in cases of doubt, by the order of the entries in the register of incoming mail at the Federal Office of Plant Varieties.
(3): If the variety denomination has been entered on behalf of the applicant in the Trademark Register at the Patent Office as a trademark, or if entry has been applied for, for goods that comprise the propagating material of the variety, he may claim the date of the trademark application as priority for the variety denomination. Priority shall lapse if the applicant does not submit to the Federal Office of Plant Varieties within three months of notifying the variety denomination a certificate issued by the Patent Office concerning the entry or application in respect of the trademark. The first and second sentences shall apply mutatis mutandis to marks registered under the Madrid Agreement Concerning the International Registration of Marks of April 14, 1891, in its currently applicable version and which enjoy protection within the country.

Article 24

Publication of the Application for Variety Protection

(1): The Federal Office of Plant Varieties shall publish the application for variety protection together with a statement of the species, the proposed variety denomination or provisional designation, the application date and the name and address of the applicant, of the original breeder or discoverer and of a procedural representative.
(2): If the application is withdrawn following publication, it shall be deemed under Article 27(2) not to have been filed on grounds of failure to comply or if the grant of variety protection has been refused, these circumstances shall likewise be published by the Federal Office of Plant Varieties.

Article 25
Objections

(1): Any person may lodge an objection to the grant of variety protection in writing with the Federal Office of Plant Varieties.
(4): The grounds for the objection shall be stated. The facts and elements of proof supporting the allegation under paragraph (2) shall be furnished in detail. Except where already set forth in the declaration of objection, they shall be furnished before the expiry of the time limit for objections.
(5): Where an objection under paragraph (2), item 2, leads to withdrawal of the application for variety protection or to refusal of grant of variety protection and if the objecting party files an application for variety protection within one month following withdrawal or within one month of the date on which the refusal becomes final in respect of the same variety, he may require that the date of the prior application shall apply to his application as the filing date.

Article 26
Examination

(2): The Federal Office of Plant Varieties may entrust growing or the other necessary investigations to other technically qualified services, even abroad, and take into account the results of growing trials and other investigations carried out by such services.
(3): The Federal Office of Plant Varieties shall require the applicant to submit to the Office or to the service it designates, within a specified time limit, the necessary propagating and other material and the necessary further documents, to provide the necessary information and to permit its verification.
(4): Where the applicant claims priority under Article 23(2), he must submit the necessary propagating and other material and the necessary further documents within four years of the expiry of the priority period. He may not submit further propagating or further other material after such submission. If the first application is withdrawn or if the grant of breeders’ rights is refused before the expiry of four years, the Federal Office of Plant Varieties may require the applicant to submit the propagating and other material in time for the following growing period and the other documents within a specified time limit.
(5): The Federal Office of Plant Varieties may supply authorities and services abroad with information on examination results where necessary for mutual information.

Articles 24 and 25 shall apply mutatis mutandis.

Article 27
Failure to Comply

(1) If the applicant fails to comply, within the time limit notified to him, with a request of the Federal Office of Plant Varieties,

to submit the necessary propagating or other material or the necessary further documents,
to propose a variety denomination or
to pay the due examination fees,

the Federal Office of Plant Varieties may reject the application for variety protection if it has pointed out the consequences of failure to comply when notifying the time limit.

(2) If the applicant or the appellant does not pay the due fee for a decision on an application for variety protection or on an appeal, the application shall be deemed not to have been filed or the appeal not to have been lodged if the fee is not paid within one month of the Federal Office of Plant Varieties having notified the fee decision and thereby having pointed out the consequences of failure to comply.

Article 28
The Plant Variety Protection Register

(2): The entry of the specified expressions of characteristics significant for distinctness and the entry of the conditions attaching to a compulsory exploitation right may be replaced by a reference to documents of the Federal Office of Plant Varieties. The entry may be amended ex officio in respect of the number and type of characteristics or of the specified expressions of those characteristics, where necessary, in order to render the description of the variety comparable with the descriptions of other varieties.
(3): Amendments to the identity of the owner of variety protection or of a procedural representative shall only be entered if supporting evidence is provided. The registered owner of variety protection or procedural representative remains entitled and committed under this Law until any amendment is entered.

(4) The Federal Office of Plant Varieties shall publish the entries.

Article 29
Access

(2): In the case of varieties whose plants are produced by crossing certain hereditary components, details of the hereditary components shall be excluded from access at the request of the person who has filed the application for variety protection. Such request may not be filed once the decision on the application for variety protection has been taken.

Article 30
Amendment of the Variety Denomination

(1) A variety denomination recorded on grant of variety protection shall be amended if

grounds for exclusion under Article 7(2) or (3) existed at the time of entry and continue to exist,
grounds for exclusion under Article 7(2), items 5 or 6, have subsequently occurred,
a conflicting right can be proved and the owner of variety protection agrees to the entry of another variety denomination,
the owner of variety protection has been prohibited by a final legal decision from using the variety denomination or
any other person required to use the variety denomination under Article 14(1) has been prohibited from using the variety denomination by a final legal decision and the owner of variety protection is a subsidiary party to the litigation or was informed of the proceedings, insofar as he was not prevented from asserting his rights by circumstances referred to in the second half sentence of Article 68 of the Code of Civil Procedure.

Where a variety denomination is amended in accordance with item 1 in the first sentence there shall be no claim to compensation for financial disadvantage under Article 48(3) of the Law on Administrative Procedure.

(2) The Federal Office of Plant Varieties shall require the owner of variety protection to propose another variety denomination within a specified period of time if it ascertains the existence of grounds for amendment in accordance with paragraph (1). If that period of time expires without result, the Office may lay down a variety denomination ex officio. At the request of the owner of variety protection or of another person, the Federal Office of Plant Varieties shall lay down a variety denomination if the petitioner can prove a justified interest. Articles 24, 25 and 28 (1), item 1, and (4) shall apply mutatis mutandis to the laying down of the other variety denomination and its notification.”

Article 31

Ending of Variety Protection

(1): Variety protection shall expire if the owner of variety protection makes a written denunciation to the Federal Office of Plant Varieties.
(2): The grant of variety protection shall be withdrawn if it transpires that on grant of variety protection the variety was not distinct or was not new. There shall be no claim to compensation for economic disadvantage under Article 48(3) of the Law on Administrative Procedure. Withdrawal on other grounds shall not be permissible.
(3): The grant of variety protection shall be cancelled if it transpires that the variety is not homogeneous or is not stable.

Article 32

Powers to Issue Procedural Regulations

The Federal Ministry for Food, Agriculture and Forestry shall be empowered

to regulate details of the procedure before the Federal Office of Plant Varieties, including the selection of the characteristics significant for distinctness, the determination of the scope of examination and the subsequent verification of the continued existence of the protected variety,
to determine the gazette for notification of the Federal Office of Plant Varieties,

by way of statutory order.

Article 33

Costs

(1): The Federal Office of Plant Varieties shall charge costs for its official acts under this Law and for the examination of plant varieties at the request of foreign or supranational entities (fees and expenses) and an annual fee for each commenced year of the duration of variety protection (protection year).
(2): The Federal Ministry for Food, Agriculture and Forestry shall be empowered, in agreement with the Federal Ministry for Finance and Economy, to determine by statutory order the acts for which fees are due and the rates of such fees, whereby it may provide for fixed rates or basic rates and may determine the time for the generation and payment of fees. The importance, the economic value and any other utility of the official act, including for breeding and for the general public, shall be taken into appropriate account. The expenses to be recovered may be determined at variance with the Law on Administrative Costs.
(3): (Repealed).
(4): In the case of fees for the examination of a variety and for a negative decision on an application for variety protection, no reduction under Article 15(2) of the Law on Administrative Costs shall be granted.
(5): In the case of a successful appeal, the appeals fee shall be refunded. In the case of a successful appeal to the Patent Court or a successful legal appeal, the appeals fee shall be refunded on request. In the case of a partial success, the corresponding part of the appeals fee shall be refunded. However, the refund can be fully or partly refused if the decision is based on facts that could have been asserted or proved at an earlier date. Sentences 1 to 4 shall apply mutatis mutandis for expenditure in appeals procedures.

There shall be no claim to refund of costs under Article 80 of the Law on Administrative Procedure.

CHAPTER FOUR

COURT PROCEEDINGS

Article 34

Appeals

(1): Appeals shall lie to the Patent Court from the decisions of the opposition boards.
(2): Within the time limit prescribed for filing appeals, a fee shall be payable in accordance with the Law on the Fees of the Patent Office and the Patent Court; if the fee is not paid, the appeal shall be deemed not to have been lodged.
(3): An appeal against the laying-down of a variety denomination under Article 30(2) or against a decision for which immediate enforcement has been ordered shall have no staying effect.
(4): The President of the Federal Office of Plant Varieties may be a party in appeal proceedings.
(5): A Chamber of Appeal shall rule on appeals. In the cases referred to in Article 18(2), items 3 and 4, it shall take its decisions with three legal members and in other cases with one legal member as chairman, a further legal member and two technical members.

Article 35

Appeals on Points of Law

(1): Appeals on points of law from decisions of the Chamber of Appeal shall lie to the Federal Court if the Chamber of Appeal so allows in its decision.
(2): Article 34(3) shall apply mutatis mutandis.

Article 36
Application of the Patent Law

Unless otherwise stipulated by Articles 34 and 35, the provisions of the Patent Law concerning appeals proceedings before the Patent Court and proceedings for appeals on points of law before the Federal Court and concerning assistance with the costs of proceedings shall apply mutatis mutandis to such proceedings.

CHAPTER FIVE
INFRINGEMENTS

Article 37
Right to Seek Injunctions, Damages and Compensation

(1) Whosoever without the consent of the owner of variety protection

Commits with material enjoying variety protection any of the acts referred to in Article 10(1) or.
uses the variety denomination of a protected variety or a designation
that may be confused with it for a different variety of the same or a
related species

may be sued by the injured party to enjoin such infringement.

(2): Whosoever acts intentionally or negligently shall be liable for compensation to the injured party for the damage resulting from the act in question. In the event of slight negligence, the court may fix, in lieu of compensation, an indemnity within the limits of the damage to the injured party and the profit which has accrued to the infringer.
(3): The owner of variety protection may require equitable remuneration from any person who has performed with material enjoying variety protection one of the acts referred to in Article 10(1) in the time between publication of the application and grant of variety protection.
(4): Claims deriving from other statutory provisions shall remain unaffected.

Article 37a

Right to Seek Destruction

(1): In the cases referred to in Article 37(1), the injured party may request that material which is the subject of the infringing act and which is in the possession or ownership of the infringer be destroyed, unless the situation resulting from the infringement can be removed in some other manner and destruction would be out of proportion for the infringer or owner in the individual case.
(2): The provisions of paragraph (1) shall be applied, mutatis mutandis, to any equipment belonging to the infringer and which has been used or is intended exclusively or almost exclusively for the unlawful production of the material.

Article 37b

Right to Seek Information with Regard to Third Parties

(2): The person required to give information under paragraph (1) shall give particulars of the name and address of the producer, the supplier and any other prior owners of the material, of the trade customer or client as also in respect of the quantity of material that has been produced, delivered, received or ordered.
(3): In those cases where infringement is obvious, the obligation to provide information may be imposed by an interim injunction in compliance with the Code of Civil Procedure.
(4): Such information may only be used in criminal proceedings or in proceedings under the Law on Offenses against the person required to give information, or against a dependent person under Article 52(1) of the Code of Criminal Procedure, in respect of an act committed before the information was given, with the consent of the person required to give information.
(5): Further claims to information shall remain unaffected.

Article 37c

Prescription

Claims arising from infringement of a right protected by this Law shall become invalid by prescription three years after the time at which the entitled person gains knowledge of the infringement and of the identity of the infringer or 30 years after the infringement irrespective of such knowledge. Article 852(2) of the Civil Code shall apply mutatis mutandis. Where the infringer has made gains at the cost of the entitled person by reason of the infringement, he shall be obliged, even after the claim has expired by prescription, to surrender such gain in accordance with the provisions on the surrender of unjustified gain.

Article 38

Litigation with Respect to Plant Variety Protection

(1): All actions whereby a claim is asserted under a legal relationship governed by this Law (plant variety protection litigation) shall be heard by the Landgerichte (provincial courts) irrespective of the value in dispute.
(2): The provincial governments shall have power to allot by statutory order variety protection litigation for the areas of a number of provincial courts to one such court where this serves the technical furtherance or more expeditious settlement of the proceedings. The provincial governments may transfer such powers to the provincial administrations of justice.
(3): The parties may also be represented by attorneys at law admitted to practice in the courts before which the or the appeal would have been heard in the absence of an arrangement under paragraph (2). Any additional costs incurred by a party by reason of the fact that it is represented by an attorney at law not admitted to practice in the court hearing the case shall not be refunded.
(4): Of the costs arising from the collaboration of a patent attorney, fees up to the amount of a full fee according to Article 11 of the Federal Regulations on Lawyers’ Fees, together with the necessary expenses of the patent attorney, shall be allowed.
(5): Paragraphs (1) to (4) shall also apply to all actions to assert a claim under the legal relationships regulated in Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community Plant Variety Rights (OJ No. L227 page 1) in its applicable version.

Article 39

Penal Provisions

(1) Any person who,

in contravention of Article 10(1), and in conjunction with paragraph (2), produces, conditions for the purposes of propagation, places on the market, imports, exports or stores propagating material of a variety protected under this Law, a plant, a part of a plant or a product or who,
in contravention of Article 13(1), and in conjunction with paragraph (2), first sentence, also in conjunction with paragraph (4), first sentence, or paragraph (5), of Council Regulation (EC) No. 200/94 of 27 July 1994 on Community Plant Variety Rights (OJ No. L227 page 1) propagates, conditions for the purposes of propagation, offers for sale, places on the market, imports, exports or stores material of a variety protected by a Community plant variety right,

shall be liable to imprisonment of up to three years or to a fine.

(2): Where the person committing the acts does so on a commercial basis the penalty shall be imprisonment not exceeding five years or a fine.
(3): The attempt to commit such an offense shall be punishable.
(4): In the cases referred to in paragraph (1), such acts shall only be prosecuted on request, except where the criminal prosecuting authorities hold ex officio intervention to be required due to the special public interest in criminal prosecution.
(5): Objects implicated in an offense may be confiscated. Article 74a of the Penal Code shall apply. Where the claims referred to in Article 37a are upheld in proceedings under the provisions of the Code of Criminal Procedure with regard to the compensation of the injured party (Articles 403 to 406c), the provisions on confiscation shall not be applied.
(6): In the event of a conviction, the sentence shall be published if the injured party so requests and has a justified interest therein. The nature of the publication shall be laid down in the judgment.

Article 40

Fines

(1) Any person who intentionally or by negligence,

in contravention of Article 14(1), markets propagating material of a variety protected under this Law without stating the variety denomination or without stating it in the prescribed manner,
in contravention of Article 14(3), uses a variety denomination of a variety protected under this Law or a designation that may be confused with it for another variety of the same or of a related species or,
in contravention of Article 17(1), also in conjunction with paragraph (3), of Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community Plant Variety Rights (OJ No. L227 page 1), fails to use the denomination of a variety protected by a Community plant variety right, does not use it correctly, completely or in the prescribed manner,

shall be deemed to have committed an offense.

(2): Such offence may be liable to a fine not exceeding 10,000 Deutschmarks.
(3): Objects implicated in offenses may be confiscated. Article 23 of the Law on Offenses shall be applied.
(4): The Federal Office of Plant Varieties shall constitute the administrative authority within the meaning of Article 36(1), item 1, of the Law on Offences.

Article 40a

Measures by the Customs Authorities

(2): Where the customs authorities order a seizure, they shall advise the person entitled to dispose and also the petitioner without delay. The origin, quantity and place of storage of the material, together with the name and address of the person entitled to dispose, shall be communicated to the petitioner; the secrecy of correspondence and mail (Article 10 of the Basic Law) shall be restricted to that extent. The petitioner shall be given the opportunity to inspect the material where such inspection does not constitute a breach of commercial or trade secrecy.
(3): Where no opposition to seizure is made, at the latest, within two weeks of service of the notification under the first sentence of paragraph (2), the customs authorities shall order confiscation of the seized material.

Where neither of the cases referred to in items 1 and 2 are applicable, the customs authorities shall lift the seizure on the expiry of two weeks after service of the notification to the petitioner under the first sentence; where the petitioner can show that a court decision according to item 2 has been requested, but has not yet been received, the seizure shall be maintained for a further two weeks at the most.

(6): The petition under paragraph (1) is to be submitted to the Regional Finance Office and shall be effective for two years unless a shorter period of validity has been requested; it may be repeated. The cost of official acts related to the petition shall be charged to the petitioner in accordance with Article 178 of the Fiscal Code.
(7): Seizure and confiscation may be challenged by the legal remedies allowed for the fixed penalty procedure under the Law on Offenses in respect of seizure and confiscation. The petitioner shall be heard in the review proceedings. An immediate appeal shall lie from the decision of the local court; it shall be heard by the Oberlandesgericht (higher provincial court).

CHAPTER SIX

FINAL PROVISIONS

Article 41

Transitional Provisions

(1) The provisions of this Law shall apply in respect of varieties for which, on entry into force of this Law, variety protection

still exists under the Seed Law as published in a consolidated version in the Bundesgesetzblatt, Part III, Section No. 7822-1, and last amended by the Law of December 23, 1966 (BGBl. I, page 686), in conjunction with Article 52(1) of the Plant Variety Protection Law of May 20, 1968 (BGBl. I, page 429), in the version notified on January 4, 1977 (BGBl. I, pages 105, 286), or
has been granted or applied for under the Plant Variety Protection Law of May 20, 1968, in the applicable version,

with the provision that, in the case under item 1, a grant of variety protection can only be withdrawn under Article 31(2) if it transpires that the requirements of Article 2(2) of the Seed Law were not fulfilled at the time variety protection was granted.

(2): Where a patent has been granted or applied for in respect of a variety or a process for its breeding prior to the date on which this Law has become applicable to the species concerned, the applicant, or his successor in title, may maintain his application or may apply for grant of variety protection for the variety and the owner of the patent may maintain his patent or may apply for grant of variety protection for the variety. If he applies for the grant of variety protection, he shall be entitled to claim the date of the patent application as priority for the application for variety protection; the third sentence of Article 23(2) shall apply mutatis mutandis. The duration of the variety protection granted shall be reduced by the number of full calendar years that have elapsed between the filing of the patent application and the date of the application for variety protection. Once the grant of variety protection has become final, rights deriving from the patent or the patent application may no longer be asserted in respect of the variety; pending patent grant procedures shall not be pursued.
(3): If a Community plant variety right has been granted for a variety and has been terminated by relinquishment without the existence of grounds for a declaration of nullity or cancellation, an application for grant of variety protection under this Law may be filed within three months of the relinquishment taking effect. The holder of the Community plant variety right or his successor in title shall enjoy the date of the application for grant of the Community plant variety right as priority for the variety protection application under this Law. The priority shall lapse if the applicant does not file within the aforementioned period the documents concerning the application for grant of the Community plant variety right, its grant and the relinquishment. If variety protection under this Law is granted for the variety, the duration of the granted protection shall be reduced by the number of complete calendar years that have elapsed between the grant of the Community plant variety right and the grant of variety protection under this Law.
(4): Varieties for which the application for protection has been filed up to one year after the date on which this Law has become applicable to the species concerned shall be deemed to be new if propagating material or harvested material of the variety has not been marketed for commercial purposes with the consent of the entitled person or of his predecessor in title more than four years or, in the case of vine and tree species, more than six years prior to the said date. Where variety protection is granted under the first sentence, the duration of protection shall be reduced by the number of full calendar years that have elapsed between the beginning of marketing and the date of filing.

if the filing date is not later than one year after the entry into force of Article 1 of the Law of July 17, 1997 (BGBl.I p. 1854).

(6) The prescription in Article 10(1) shall not apply to essentially derived varieties for which variety protection has been sought or granted prior to the entry into force of Article 1 of the Law of July 17, 1997 (BGBl.I p. 1854).

Article 42

Entry into Force

This Law shall enter into force on the day following its promulgation.

ANNEX
Species for which propagating material may be saved:

1. Cereals
1.1 Avena sativa L.	Oats
1.2 Hordeu vulgare L. sensu lato	Barley
1.3 Secale cereale L.	Rye
1.4 x Triticosecale Wittm.	Triticale
1.5 Triticum aestivum L.
emend. Fiori et Paol.	Tender Wheat
1.6 Triticum durum Desf.	Durum Wheat
1.7 Triticum spelta L.	Spelt
2. Fodder plants
2.1 Lupinus luteus L.	Yellow Lupin
2.2 Medicago sativa L.	Lucerne
2.3 Pisum sativum L.	Field Pea
2.4 Trifolium alexandrinum L.	Berseem Clover
2.5 Trifolium resupinatum L.	Persian Clover
2.6 Vicia faba L. (partim)	Field Bean
2.7 Vicia sativa L.	Common Vetch
3. Oil and fiber plants
3.1 Brassica napus L. (partim)	Rape
3.2 Brassica rapa L.
var. silvestris (Lam.) Briggs	Turnip Rape
3.3 Linum usitatissimum L.	Flax, except
	Fiber Flax
4. Potatoes
4.1 Solanum tuberosum L.	Potato

Loi sur la protection des obtentions végétales (modifiée jusqu'au 17 juillet 1997), Allemagne

Documents disponibles

The Plant Variety Protection Law*