- Law of the republic of Kazakhstanon the protection of selection achievements
- TITLE I GENERAL PROVISIONS
- TITLE 11 PATENTABILITY OF SELECTION ACHIEVEMENTS
- TITLE III EXAMINATION OF APPLICATIONS FOR THE GRANT OF ASELECTION ACHIEVEMENT PATENT
- TITLE IV AUTHOR AND PATENT OWNER
- Article 11 Author (Breeder) of a Selection Achievement
- Article 12 Rights of the Author of a Selection Achievement
- Article 13 Owners of a Selection Achievement Patent
- Article 14 Rights and Obligations of Patent Owners
- Article 15 Liability for Infringement of the Rights of Patent Owners
- Article 16 Succession in Title
- Article17 Acts Not Infringing the Exclusive Right of the Patent Owner
- TITLE V THE USE OF SELECTION ACHIEVEMENTS
- TITLE VI LAPSE OF PATENT
- TITLE VII FINAL PROVISIONS
- Article 23 Settlement of Disputes Arising from the Application of This Law
- Article 24 The Use of Selection Achievements for Production Purpose
- Article 25 Fees Payable for Legal Acts
- Article 26 Publications
- Article 27 Patenting of Selection Achievements Abroad
- Article 28 Rights of Foreign Natural Persons and Legal Entities
- Article 29 International Treaties
Law of the republic of Kazakhstan
on the protection of selection achievements
TITLE I
GENERAL PROVISIONS
Article 1
Relations Governed by This Law
This Law shall determine legal, economic and organizational basis for activities in the field of protection of selection achievements and shall govern both economic and relevant moral relations arising out of the creation, discovery, development, legal protection and use of selection achievements.
Article 2
Basic Definitions
For the purposes of this Law:
(1) "Author of the selection achievement" ("breeder") (hereinafter referred to as "author") means a natural person who bred, or discovered and developed, a variety or breed;
(2) "Board of Appeals" means a subordinated body of Kazpatent responsible for non-judicial settlement of disputes;
(3) "Gazette" means an official periodical on selection achievements protection matters published by Kazpatent;
(4) "State Commission" means the State Commission for Crop Variety Testing and the State Inspection for Pedigree Breeds of the Ministry of Agriculture of the Republic of Kazakhstan;
(5) "State Register” means "State Register of the Protected Plant Varieties of the Republic of Kazakhstan" and "State Register of the Protected Animal Breeds of the Republic of Kazakhstan" which contain plant varieties and breeds, respectively, for which patents have been granted;
(6) "State Register of Selection Achievements Authorized for Use for Production Purposes" means "State Register of Selection Achievements Authorized for Use for Production Purposes in the Republic of Kazakhstan" which contains plant varieties and breeds authorized for economic uses;
(7) "Applicant" means a natural person or legal entity that has filed an application for the grant of a selection achievement patent;
(8) "the exclusive right" means an economic right of the patent owner to use the selection achievement in any way at his discretion;
(9) "License contract" means a contract by virtue of which the patent owner (the licensor) grants, for a specified period of time, the right to use the selection achievement in a specified way to another person (the licensee);
(10) "Patent agent" means a national who, under the legislation of the Republic of Kazakhstan, is authorized to represent natural persons or legal entities before Kazpatent;
(11) "Patent owner" means a person holding a selection achievement patent;
(12) "Pedigree animal" means a purebred, high class, high-producing animal whose origin is certified by a pedigree certificate and which animal conforms to type trend and level of productivity and satisfies the breed standards:
(13) "Pedigree production (material)" means a pedigree animal, gametes or embryos thereof;
(14) "Breed" means a grouping of agricultural domestic animals of the same species resulting from the creative activity of man in the specific economic and environmental conditions quantitatively sufficient for durable breeding “from within” related by descent from common ancestors and having economic and breeding value maintained by way of artificial selection, combination and creation of technological conditions specific to their genotype, and distinguished from any other animal grouping by the expression of morphological, physiological and economic characteristics. Breed shall be deemed to comprise the following protected categories: type, line, crossing of lines;
(15) "Propagating material" means any material of generative and vegetative reproduction inclusive of seeds, set, plants or parts thereof used for the purposes of reproduction;
(16) "Selection achievement" means anew variety or animal breed resulting from the creative activity of man for which a patent has been granted;
(17) "Seeds" means all botanical forms of seed material, i.e. seeds as such, fruit, syncarpy, parts of composite fruit bulbs or tubers;
(18) "Variety" means a grouping of cultivated plants related by descent and defined b the expression of uniform biological, morphological and economic characteristics which retain hereditary stability in subsequent generations and can be distinguished from any other plant grouping of the same botanical taxon by the expression of at least one of the said characteristics. Variety shall be deemed to comprise the following protected categories: clone, line, first generation, hybrid, population;
(19) "Marketable animal" means an animal used for the purpose of production for the market.
Article 3
Legal Protection of Selection Achievements
(1) Rights in a selection achievement shall be protected under the legislation of the Republic of Kazakhstan and shall be certified by a patent. The patent shall certify the exclusive right of the patent owner to use the selection achievement, the priority thereof, as well as the authorship of the breeder.
(2) The State Patent Organization (hereinafter referred to as “Kazpatent”)shall be a competent State authority which shall, under this Law, receive applications for the grant of patents for selection achievements of the Republic of Kazakhstan, organize a preliminary examination thereof, keep the State Register of Selection Achievements, grant patents, publish information relating to selection achievements, and shall perform other functions of the patent Office.
(3) The State Commissions shall carry out examination of patentability of selection achievements and testing the compliance thereof with the requirements of economic utility, and register them in the State Register of Selection Achievements Authorized for Use for Production Purposes.
(4) The scope of the legal protection conferred by a patent for a selection achievement shall be determined by the description of plant variety or animal breed containing the essential characteristics thereof
(5) The term of a variety patent shall be 25 years from the date of filing an application with Kazpatent. For animal breeds the said period shall be 30 years. For grapevines, ornamental, fruit and forest trees, including rootstocks thereof, the said period shall be 3 5 years.
At the request of the patent owner Kazpatent may extend the term of the patent for a period not exceeding 10 years.
TITLE 11
PATENTABILITY OF SELECTION ACHIEVEMENTS
Article 4
Conditions of Patentability of Selection Achievements
(1) The patent shall be granted where a selection achievement is new, distinct, uniform and stable.
(2) A plant variety or animal breed shall be deemed new if, at the date of filing of the application for the grant of a patent, the seeds or other propagating material or pedigree material of the selection achievement has not been sold or otherwise disposed of to others, by the breeder or his successor in title, for the purposes of exploitation of the variety or breed:
- in the territory of the Republic of Kazakhstan, earlier than one year before that date;
- in the territory of any other State, earlier than four years in the case of annual varieties and breeds or, in the case of perennial varieties and breeds, earlier than six years before the said date.
Where, at the date of entry of the corresponding genera and species in the State Register of the Protected Selection Achievements, a plant variety or animal breed has been registered in the State Register of Selection Achievements Authorized for Use for Production Purposes, it may be recognized as patentable without compliance thereof with the condition of novelty. The priority of the selection achievement shall be determined by the date of receipt by the relevant State Commission of the application containing the request for the grant of an authorization to use the said selection achievement.
The term of a patent provided for in Article 3 of this Law shall be reduced in relation to such selection achievements by the period starting from the year in which the authorization to use has been granted and ending in the year in which a patent has been granted. No provisional protection provided for in Article 9 of this Law shall apply to such selection achievement.
(3) A plant variety or animal breed shall be deemed to satisfy the condition of distinctness if it is clearly distinct from any other variety or breed well-known at the time of the filing of the application. The filing of an application for the grant of a patent or the entry of another variety or breed in the official register of varieties or breeds, in any country, shall render that variety or breed a matter of common knowledge from the date of the application, provided that the application leads to the grant of a patent or the entry.
Well-known varieties or breeds may be those which have been bred, used and published. Characteristics intended to determine descriptive and distinctive features of the variety or breed shall be susceptible of recovery and precise description.
(4) A plant variety or animal breed shall be deemed uniform if, subject to the variation that may be expected from particular features of its propagation or reproduction, it is uniform in its relevant selective characteristics.
(5) A plant variety or animal breed shall be deemed to satisfy the condition of stability, if its relevant characteristics remain unchanged after repeated propagation or reproduction or, in the case of particular cycle of propagation or reproduction, at the end of each such cycle.
Article 5
Application for the Grant of a Selection Achievement Patent
(1) Application for the grant of a patent shall be filed with Kazpatent.
The right to file an application shall belong to the breeder or his successor in title.
The right to file an application for the grant of a patent for a selection achievement that has been bred, discovered or developed by a breeder in the line of duty, or as a result of a specific task entrusted to him by his employer, shall belong to the employer unless otherwise provided in the employment contract.
Where a selection achievement has been bred, discovered or developed jointly by several persons or where several persons are successors in title of the breeder, the application may be filed jointly by them.
Applications may be filed through patent agents who shall, by virtue of powers certified in a power of attorney, act in all proceedings conducted for the grant of patents.
(2) Natural persons having their residence outside the territory of the Republic of Kazakhstan or foreign legal entities shall be required to act through patent agents registered in the Republic of Kazakhstan in all proceedings conducted for the grant and maintenance of patents and lodging appeals with the Board of Appeals.
Natural persons having their permanent residence in the Republic of Kazakhstan but temporarily residing outside its territory may act in all patent proceedings on their own provided they indicate address for service in the territory of the Republic of Kazakhstan.
The powers of the patent agent shall be certified in a power of attorney issued by the applicant or patent owner.
(3) The application for the grant of a selection achievement patent shall relate to one variety or breed only.
The application shall contain:
- the request for the grant of a patent;
- the official technical questionnaire related to the selection achievement;
- where the application is filed through a patent agent, a power of attorney.
The application for the grant of a selection achievement patent shall be accompanied by proof of payment of the prescribed fee or of circumstances affording entitlement to exemption from payment, or to reduction in the amount, of the prescribed fee which may be presented together with the application or within two months following the date of receipt thereof This term may, subject to payment of the prescribed fee, be extended for a period not exceeding two months.
If the applicant fails, within the prescribed time limit, to present the above documents, the application shall be deemed to have not been filed.
(4) The application for the grant of a selection achievement patent shall be filed in the State or Russian language.
(5) The conditions to be met by the elements of the application and the procedure for consideration thereof shall be determined by Kazpatent. Other documents and material required for the purposes of examination and testing of the claimed variety or breed shall be presented at the request of the State Commission.
Article 6
Denomination of Selection Achievement
(1) The denomination must enable the selection achievement to be identified. It must be short and different from any other denomination which designates an existing selection achievement of the same or of a closely related plant or animal species. It may not consist solely of figures. It must not be liable to mislead concerning characteristics, origin or value of the selection achievement or the identity of the breeder. It must not be contrary to humanitarian principles or morality.
(2) Where the application for the grant of a patent for the same variety or breed is filed in the Republic of Kazakhstan and in other countries, the variety or breed must be submitted under the same denomination to all countries concerned, except where the denomination does not satisfy the requirements of paragraph (1) of this Article.
(3) Where the denomination does not satisfy the requirements of paragraphs (1) or (2) of this Article, Kazpatent shall require the applicant to submit another denomination for the variety or breed within two months.
(4) Any person who uses the protected selection achievement shall be required to use the denomination of the variety or breed as registered in the respective State Register even after the expiration of the patent.
Article 7
Priority of Selection Achievements
(1) The priority of the variety or breed shall be determined by the filing date of the application containing the request for the grant of a patent and the official technical questionnaire to the selection achievement with Kazpatent.
(2) Priority may be determined by the filing date of the first application in any State party to the International Convention for the Protection of New Varieties of Plants (hereinafter referred to as “Convention priority”). The applicant shall enjoy the Convention priority within 12 months from the said date.
The applicant wishing to enjoy the Convention priority shall make a declaration to that effect to be submitted to Kazpatent, stating the priority date of the first application and shall, within three months following the filing date of the first application, furnish a copy of the first application duly certified by the Office it has been filed with.