WORLD TRADE ORGANIZATION 
ORGANISATION MONDIALE DU COMMERCE 
ORGANIZACION MUNDIAL DEL COMERCIO 
Council for Trade-Related Aspects of 
Intellectual Property Rights IPIN/1/HKGIP15 
20 March 2000 
(00-1140) 
Original: English! 
anglaisl 
ingles 
MAIN DEDICATED INTELLECTUAL PROPERTY 
LAWS AND REGULATIONS NOTIFIED UNDER 
ARTICLE 63.2 OF THE AGREEMENT 
HONG KONG, CHINA 
The present document reproduces the textl of the Plant Varieties Protection Ordinance, as 
notified by Hong Kong, China under Article 63.2 of the Agreement (see document IPIN!1IHKG/2). 
Conseil des aspects des droits de propriete 
intellectuelle qui touchent au commerce 
PRlNCIP ALES LOIS ET REGLEMENTATIONS CONSACREES A LA 
PROPruETE INTELLECTUELLE NOTIFIEES AU TITRE 
DE L'ARTICLE 63:2 DE L'ACCORD 
HONG KONG, CHINE 
Le present document contient le textel de I'Ordonnance sur la protection des varietes 
vegetales, notifiee par Hong Kong, Chine au titre de l'article 63:2 de l'Accord (voir le document 
IPINIlIHKG/2). 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio 
PRlNCIP ALES LEYES Y REGLAMENTOS DEDICADOS A LA PROPIEDAD 
INTELECTUAL NOTIFICADOS EN VIRTUD DEL P ARRAFO 2 
DEL ARTicULO 63 DEL ACUERDO 
HONG KONG, CHINA 
En el presente documento se reproduce el textol de la Orden sobre Protecci6n de las 
Obtenciones Vegetales notificado por Hong Kong, China en virtud del parrafo 2 del articulo 63 del 
Acuerdo (vease el documento IPIN!1IHKG/2). 
1 In English only.lEn anglais seulement.lEn ingles solamente. IP/NIIIHKG/P/5 
Page 2 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Heading: Long title Version Date: 2411011997 
An Ordinance to provide for the protection of plant varieties. 
[24 October 1997] L.N. 492 of 1997 
(Originally 21 of 1996) 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 1 Heading: Short title Version Date: 2411011997 
PARTl 
PRELIMINARY 
(1) This Ordinance may be cited as the Plant Varieties Protection Ordinance. 
(2) (Omitted as spent) 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 2 Heading: Interpretation Version Date: 24/10/1997 
Remarks: 
Amendments retroactively made-see 25 of 1998 s. 2 
In this Ordinance, unless the context otherwise requires-
"applicant", in relation to any application, means the person by whom or on whose behalf that 
application is made; 
"application" means 
(a) an application for a grant; and 
(b) an application fora declaration under section 31 (1 )(b); 
"court" means the Court of First Instance; (Amended 25 of 1998 s. 2) 
"denomination", in relation to any protected variety, or any variety that was a protected variety until 
the grant made in respect of it expired, means the distinguishing name or identification 
approved for that variety by the Registrar under section 18(2 )( a); 
"grant" means a grant of plant variety rights under this Ordinance; 
"grantee" means the holder of a grant and, in relation to a protected variety, means the holder of a 
grant in respect of that variety; 
"owner", in relation to any variety, means-
(a) a person who bred or discovered and developed that variety; 
(b) an agent of that person; 
( c) a successbr to that person; 
"plant" means-
(a) any multicellular vascular organism with a root system; 
(b) any algae; 
( c) any fungi; 
"prescribed" means prescribed or provided for by regulations made under section 42; 
"protected variety" means a variety in respect of which a grant is in force; 
"publication" means public notification, and includes public notification in the Gazette; 
"register" means the Register of Plant Variety Rights maintained under section 8(1); "Registrar" means the Registrar of Plant Variety Rights; IP/N/lIHKGIP15 
Page 3 
"reproductive material", in relation to any variety, means any portion of a plant of that variety by 
means of which plants of that variety may be reproduced or propagated; and means spores 
and seeds; 
sale" includes any disposition for valuable consideration and any offer for sale, and "sell" and "sold" 
have corresponding meanings; 
"term" means the period that a grant is in force under section 22; 
"UPOV country" means a country that is a member State of the International Union for the Protection 
of New Varieties of Plants, constituted pursuant to the international agreement called the 
International Convention for the Protection of New Varieties of Plants; 
"variety" means a cultivar of a plant to which this Ordinance, by virtue of section 4 and the Schedule, 
applies, and means any clone, hybrid, stock, or line, of such a plant, but does not mean a 
botanical variety of such a plant. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 3 Heading: Binding effect of Ordinance Version Date: 2411011997 
This Ordinance binds the Government. 
Chapter: 
Section: 
(1) 
(2) 
Schedule. 
Chapter: 
Section: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
4 Heading: Application Version Date: 24110/1997 
This Ordinance applies to the plants listed in the Schedule. 
The Secretary for Economic Services may, by notice in the Gazette, amend the 
490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
5 Heading: Registrar of Plant Variety Rights Version Date: 24110/1997 
PART 11 
REGISTRAR OF PLANT VARIETY RIGHTS AND REGISTER 
(1) The Director of Agriculture and Fisheries shall be the Registrar of Plant Variety 
Rights for the purposes of this Ordinance. 
(2) The Registrar may authorize in writing any public officer to perform or exercise all 
or any of the functions which are imposed or conferred on him by this Ordinance. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 6 Heading: Appeals against decisions of the Version Date: 24110/1997 
Registrar 
Except as otherwise prescribed, an appeal lies to the court, to the extent and in the manner 
provided in Part 1 V, against any decision of the Registrar made under this Ordinance. IPIN/lIHKG/P/5 
Page 4 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 7 Heading: Registrar not liable in respect of Version Date: 2411011997 
official acts 
(1) The Registrar shall not be taken to warrant the correctness or validity of the 
registration of a plant variety right under this Ordinance or under any international agreement, or 
convention, which has been applied to Hong Kong. 
(2) The Registrar is not subject to any liability by reason only of the fact of any 
examination required or authorized by this Ordinance, or any such international agreement or 
convention, or any report or other proceedings consequent on such examination. 
(3) No proceedings lie against any public officer authorized by the Registrar under 
section 5(2) in respect of any matter for which, by virtue of this section, the Registrar is not liable. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
Section: PROTECTION ORDINANCE of 1997 
8 Heading: Register to be maintained Version Date: 2411011997 
(1) The Registrar shall maintain a register called the Register of Plant Variety Rights. 
(2) There shall be entered in the register-
(a) notice of every decision of the Registrar to make or decline to make a grant of a 
plant variety right; 
(b) such particulars as may be required to be entered by this Ordinance or as may be 
prescribed; and 
(c) any other matters and information relating to plant varieties or plant variety 
rights whose entry in the register appears to the Registrar to be important or 
useful. 
(3) The register need not be kept in documentary form but shall be kept in such manner 
as may be prescribed by manual, mechanical, electronic, optical or other means, and provision shall 
in particular be prescribed for-
(a) public inspection of the register; 
(b) the supply of certified or uncertified copies, or extracts, of entries in the register; 
and 
(c) publication in each year of any matter or information entered in the register, 
including information as and relating to plant varieties for which a grant has 
been made and which remains in force for that year. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 9 Heading: Rectification of the register Version Date: 24110/1997 
(1) Any person having a sufficient interest may apply to the Registrar for the 
rectification of an error or omission in the register. 
(2) Except where the Registrar directs otherwise, the effect of rectification of the register 
is that the error or omission in question shall be deemed never to have been made. 
(3) The Registrar may, on request made in the prescribed manner by the grantee of a 
registered plant variety right, enter any change in his name or address as recorded in the register. 
( 4) The Registrar may remove from the register matter appearing to him to have ceased 
to have effect. Chapter: 490 Title: PLANT VARIETIES 
PROTECTION ORDINANCE 
Section: 10 Heading: Registration to be prima facie 
evidence of validity IP/NI1/HKG/P/5 
Page 5 
Gazette Number: L.N. 492 
of 1997 
Version Date: 24110/1997 
In any proceedings before the court relating to a registered plant variety right, the registration 
of a person as grantee of a plant variety right shall be prima facie evidence of the validity of the 
original registration and of any subsequent assignment or other transmission of it. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 11 Heading: Certificate of validity of Version Date: 24/1011997 
contested registration 
(1) If in proceedings before the court the validity of the registration of a plant variety 
right is contested and it is found by the court that the plant variety right is validly registered, the court 
may give a certificate to that effect. 
(2) If the court gives such a certificate and in subsequent proceedings 
(a) the validity of the registration is again questioned; and 
(b) the grantee obtains a final order or judgment in his favour, he is entitled to his 
costs as between solicitor and client unless the court directs otherwise. 
(3) Subsection (2) does not extend to the costs of an appeal in any such proceedings. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 12 Heading: Burden of proving use of plant Version Date: 24/10/1997 
variety right 
If in any proceedings before the court to which a grantee or a person authorized by licence or 
otherwise under section 25(1) is a party of a question arises as to the use to which a registered plant 
variety right has been put, it is for the grantee or that person to show what use has been made of it. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 13 Heading: Application for grant Version Date: 24/1011997 
PART 111 
GRANT OF PLANT VARIETY RIGHTS 
(1) Every application shall be in such manner and form as the Registrar may require and 
shall-
(a) be accompanied by the quantity of reproductive material, if any, prescribed in 
respect of varieties of the kind concerned; 
(b) be completed and signed by or on behalf of the applicant; 
(c) nominate an address for service in relation to that application, being an address 
within Hong Kong; and 
(d) be accompanied by the prescribed application fee. 
(2) Within the prescribed period after making an application, the applicant shall give to 
the Registrar-
(a) in such detail as the Registrar requires, a description of­
(i) the origin and breeding of the variety concerned; IPINIIIHKG/P/S 
Page 6 
(ii) the botanical features of that variety; and 
(iii) those aspects of that variety that, in the OpInIOn of that applicant, 
distinguish it froIn those other varieties whose existence was a matter of 
common knowledge at the time of that application; and 
(b) the proposed denomination for that variety. 
(3) Within the prescribed period after being requested by the Registrar to do so, the 
applicant shall furnish the Registrar with-
(a) such further reproductive material of the variety concerned as the Registrar may 
specify; 
(b) any other information that the Registrar thinks relevant and requests from that 
applicant. 
(4) An application that complies with subsection (1) at the time it is received at the 
office of the Registrar shall, for the purposes of this Ordinance, be deemed to be made at that time. 
(5) An application that does not comply with subsection (1) at the time it is received at 
the office of the Registrar shall, for the purposes of this Ordinance, be deemed to be made at the time 
at which it first complies with that subsection while being held at that office. 
(6) If satisfied that an application complies with subsection (1) the Registrar shall­
(a) notify in the Gazette the making of that application; and 
(b) advise the applicant accordingly. 
(7) The Registrar shall notify in the Gazette every proposed denomination for a variety 
given to the Registrar by any applicant that, in the opinion of the Registrar, complies with the 
prescribed requirements. 
(S) For the purposes of subsection (2)(a)(iii) and section IS(4)(b), common knowledge 
of a variety is established if that variety is a variety-
(a) in respect of which a grant or an application has been made under this 
Ordinance; 
(b) in respect of which in a UPOV country an equivalent grant or equivalent 
application has been made; 
(c) which has been precisely described in any publication; 
(d) which appears or has been included in a reference collection; or 
(e) which has been cultivated or marketed for a period exceeding the prescribed 
period. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 14 Heading: Ob.jections before 2rant Version Date: 2411011997 
(1) Any person who considers that the Registrar should not approve a proposed 
denomination notified in the Gazette may, within 3 months of its notification in the Gazette under 
section 13(6)(a), by notice in writing to the Registrar, object to the approval of that denomination. 
(2) Any person who considers that an application has been made by or on behalf of an 
applicant who is not an owner of the variety concerned may, at any time before a grant is made to the 
applicant in respect of that variety, by notice in writing to the Registrar, object to the making of a 
grant in respect of that variety to the applicant. 
(3) Any person who considers that an application has been made in respect of a variety 
that is not new, distinct, stable, and homogeneous, as required by section IS(2)( d) may, at any time 
before a grant is made in respect of that variety, by notice in writing to the Registrar, object to the 
making of a grant in respect of that variety. 
(4) If an objection is made under this section, the Registrar shall not make a grant in 
respect of the variety concerned before giving the applicant concerned and the objector a reasonable 
opportunity to be heard. Chapter: 490 Title: PLANT VARIETIES 
PROTECTION ORDINANCE 
Section: 15 Heading: Withdrawal or lapse of 
applications IPINIlIHKG/P/5 
Page 7 
Gazette Number: L.N. 492 
of 1997 
Version Date: 24/10/1997 
(1) Any application may be withdrawn by the applicant at any time before a grant is 
made in respect of it. 
(2) The withdrawal of an application shall not affect the liability of the application for 
any fees that may have become payable up to the date of that withdrawal. 
(3) If any information or material required to be given to the Registrar under section 
13(2) or (3) is not supplied within the prescribed period, the application concerned shall lapse upon 
the expiration of that period. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 16 Heading: Inspection of applications Version Date: 24110/1997 
After an application is made, the Registrar shall hold it and any document or instrument 
accompanying it or supplied subsequently pursuant to section 13(2) or (3), or a copy of that document 
or instrument, certified by the Registrar to be a true copy, available for public inspection during 
ordinary business hours of the office of the Registrar. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 17 Heading: Provisional protection Version Date: 24/1011997 
(1) Subject to subsection (2), on and after the day on which an application is made, the 
applicant shall have the same rights to take proceedings under this Ordinance as if on that day a grant 
had been made to the applicant in respect of the variety concerned. 
(2) The rights conferred by subsection (1) shall be treated as never having been 
conferred if the-
Chapter: 
Section: (a) application concerned is withdrawn or lapses; or 
(b) Registrar declines to make a grant in respect of that application. 
490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
18 Heading: Making of grants Version Date: 2411011997 
(1) The Registrar shall-
(a) subject to section 19, make a grant in respect of every application that is eligible 
for the making of a grant; and 
(b) decline to make a grant in respect of every application that is not eligible for the 
making of a grant. 
(2) An application shall be treated as being eligible for the making of a grant if, and only 
if, the applicant has given the Registrar all reproductive material of the variety concerned requested 
by the Registrar, and the Registrar-
(a) has approved for that variety a denomination proposed by the applicant; IP/NIl/HKG/P/5 
Page 8 
(b) is satisfied that that applicant is an owner of that variety; 
(c) has received the prescribed fee; and 
(d) is satisfied that that variety is new, distinct, stable, and homogeneous. 
(3) The Registrar shall approve a proposed denomination for a variety if, and only if, in 
the opinion of the Registrar, it complies with the prescribed requirements. 
(4) F or the purposes of subsection (2)( d)-
(a) subject to subsection (6), a variety is new if there has been no sale ofthat variety 
with the agreement of any relevant owner of that variety 
(i) in Hong Kong, for more than 12 months before the date on which that 
application was made; and 
(ii) outside Hong Kong, for more than 6 years before that date in the case of 
trees or vines, or for more than 4 years before that date in every other case; 
(b) a variety is distinct if it is clearly distinguishable from any other variety whose 
existence was a matter of common knowledge when the application concerned 
was made; 
(c) a variety is stable if, in its relevant characteristics, it remains true to its 
description 
(i) where the applicant concerned has described particular cycles of 
propagation or reproduction for that variety, at the end of each such cycle; 
and 
(ii) in every other case, after repeated propagation or reproduction; 
(d) a variety is homogeneous if all of its plants carry, exhibit or show the same 
expression of that variety's relevant characteristics, subject to any variation 
which may be expected having regard to any particular feature of its propagation 
or reproduction. 
(5) In determining, for the purposes of subsection (2)( d), whether or not the Registrar is 
satisfied that a variety is homogeneous, the Registrar shall have regard to the particular features of its 
propagation or reproduction, whichever is applicable to it. 
(6) Where, to increase the stock of a variety or for tests of a variety, its owner makes 
arrangements under which-
(a) reproductive material of that variety is to be sold to or used by some other 
person; 
(b) any unused portion of that reproductive material, and all the material of any sort 
produced from that reproductive material, is 
(i) to be sold to that owner, by that other person; or 
(ii) otherwise to become the property of that owner, 
then for the purposes of subsection (4)(a), no account shall be taken of any sale under that 
arrangement of-
(i) reproductive material of that variety by that owner to that other person; or 
(ii) material of any sort of that variety by that other person to that owner. 
(7) For the purposes of subsection (2)(d), a variety does not cease to be new by virtue 
only of the sale at any time of-
(a) material that is not reproductive material; or 
(b) reproductive material disposed of for purposes other than reproduction, 
that, having been produced during the breeding, increase of stock, tests, or trials, of that variety, is not 
or no longer required for any of those activities. 
(8) F or the purposes of subsection (4 )(b), the characteristics by which a variety may be 
distinguished from others may be morphological, physiological, or of any other kind or description, 
so long as those characteristics are capable of precise description and recognition. 
(9) It shall be a condition of a grant made to any person in respect of a variety that the 
grantee shall-
(a) pay such annual grant fee; and 
(b) maintain such stock of reproductive material, IP/N/1/HKGIP15 
Page 9 
in relation to that variety as may be prescribed. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 19 Heading: Varieties bred or discovered and Version Date: 24/10/1997 
developed by 2 or more persons 
indej!endently 
Subject to section 20, where-
(a) before a grant is made in respect of a variety, 2 or more applications in respect of 
that variety have been made; 
(b) the Registrar is satisfied that the 2 or more applicants concerned are persons 
who, or successors of persons who, bred or discovered and developed that 
variety independently; and 
( c) the Registrar is satisfied that, but for this section, each of those 2 or more 
applicants is or would be entitled to a grant in respect of that variety, 
the Registrar shall make a grant to that 1 of those 2 or more applicants whose application in respect of 
that variety was made first. 
Chapter: 
Section: 
Where-490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
20 Heading: Priority resulting from earlier Version Date: 24/10/1997 
applications 
(a) any person makes an application for a grant in Hong Kong in respect of a 
variety in respect of which that person has earlier in a UPOV country made an 
equivalent application under the law of that country that has been accepted; 
and 
(b) that application for a grant in Hong Kong is made not more than 12 months 
after that equivalent application or, if more than 1 equivalent application has 
been made, whether in 1 or in several countries, the earliest of them, was made; 
and 
(c) a claim for priority in relation to that equivalent application accompanies the 
application for a grant in Hong Kong; and 
(d) within 3 months of the making of that application for a grant in Hong Kong, a 
copy of any documents constituting that equivalent application, certified as 
correct by the authority to which it was made, is submitted to the Registrar, 
sections 18( 4)(b) and 19 shall apply to that application for a grant in Hong Kong as if it had been 
made when that equivalent application was accepted. 
Chapter: 
Section: 
Where-490 ' Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
21 Heading: Cancellation of grants because Version Date: 2411011997 
of earlier applications 
(a) after a grant is made to any person in respect of a variety, another person makes 
an application in respect of that variety; IP/N/1/HKG/P/5 
Page 10 
(b) the Registrar is satisfied that, if that grant had not already been made, that other 
person would, by virtue of section 20, be entitled to a grant in respect of that 
application, 
the Registrar shall cancel that grant, and shall make a new grant to the person who would be entitled 
to it as if the cancelled grant had never been made. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 22 Heading: Duration of grant Version Date: 24/1011997 
(1) The Registrar shall endorse every grant with the date of its making. 
(2) Subject to section 24 (cancellation of grants), every grant shall be in force for a term, 
commencing on the day it is made 
(a) in the case of any prescribed species, of 25 years, or any longer prescribed 
period; and 
(b) of 20 years in every other case. 
(3) The Registrar shall record in the register the date and other prescribed particulars, if 
any, of every grant. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 23 Heading: Ob.iections after grant Version Date: 2411011997 
(1) Any person who considers that a grant has been made in respect of a variety that is 
not new, distinct, stable, and homogeneous as required by section 18 may at any time, by notice in 
writing to the Registrar, object to the continuation in force of that grant. 
(2) Any person who considers that a grant was made to a person who was not an owner 
of that variety may, by notice in writing to the Registrar, object to the continuation in force of that 
grant. 
(3) An objection under subsection (2) may be accompanied by an application in respect 
of the variety concerned. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 24 Heading: Cancellation of grants Version Date: 24/1011997 
(1) The Registrar may cancel a grant at any time during its term if so requested in writing 
by the grantee. 
(2) Subject to subsection (3), the Registrar shall cancel a grant at any time during its 
term if satisfied that-
(a) any information supplied in the application concerned or in relation to that 
application was incorrect and that if the correct information had been known 
before that grant was made, the Registrar would have declined to make that 
grant; 
(b) the variety concerned was not, at the time of the application concerned, new and 
distinct within the meaning of section 18; 
( c) that variety is not stable and homogeneous within the meaning of section 18; IP/NI1 IHKG/P/5 
Page 11 
(d) the grantee was not, at the time that grant was made, an owner of that variety; 
(e) the grantee of that variety, after being requested by the Registrar to provide the 
Registrar within a period specified by the Registrar with reproductive material 
capable of producing that variety with its characteristics as described when the 
grant was made, has failed to do so; 
(t) that grantee, after being requested by the Registrar to allow the Registrar within 
a period specified by the Registrar to inspect the measures taken for the 
maintenance of that variety, or to provide documents or information in relation 
to that variety, has failed to do so; 
(g) in any particular year any annual grant fee in relation to the variety concerned 
which is required to be paid as prescribed, has not been paid; 
(h) any stock of reproductive material in relation to the variety concerned which 
is required to be maintained as prescribed, has not been maintained; or 
(i) that grantee has failed to comply with any permission or order granted under 
section 29(2) in relation to that variety. 
(3) Before cancelling a grant under subsection (2), the Registrar shall give the grantee 
written notice of intention to do so and, unless that grantee shows sufficient cause within 28 days of 
the date of the notice why that grant should not be cancelled, shall cancel that grant on the expiration 
of that period. 
(4) Where-
(a) the Registrar has cancelled a grant under subsection (2)(d); and 
(b) any application, other than the application in respect of which that grant was 
made, has at any time, whether before or after the making of that grant, been 
made in respect of the variety concerned, 
the Registrar shall deal with all applications in respect of that variety as if that grant had never been 
made. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
Section: PROTECTION ORDINANCE of 1997 
25 Heading: Rights of grantees Version Date: 2411011997 
(1) Subject to section 27, a grantee shall have the exclusive right-
(a) to produce for sale, and to offer for sale or sell, reproductive material of the 
variety concerned; 
(b) to import or export reproductive material of the variety concerned; 
( c) if that variety is a plant of a type prescribed for the purposes of this section, to 
propagate that variety for the purposes of the commercial production of fruit or 
flowers of that variety; 
(d) subject to any terms and conditions that grantee may specify, to authorize, by 
licence or otherwise, any other person or persons to do any of the things 
described in paragraph (a), (b) or (c). 
(2) The rights of a grantee under a grant are proprietary rights, and their infringement 
shall be actionable accordingly; and in awarding damages, including any exemplary damages, or 
granting any other relief, a court shall take into consideration-
(a) any loss suffered or likely to be suffered by that grantee as a result of that 
infringement; and 
(b) any profits or other benefits derived by any other person from that infringement; 
and 
(c) the flagrancy of that infringement. 
(3) Where there is imported into Hong Kong any reproductive material of a protected 
variety, any propagation, sale, or use, of that material-
(a) as reproductive material; and IP/N/lIHKG/P/5 
Page 12 
(b) without the authority of the grantee concerned, constitutes an infringement of 
the rights of that grantee under this section. 
(4) The importation into Hong Kong-
(a) from a country that is not a DPOV country of harvested material of a 
protected variety; or 
(b) from a DPOV country of harvested material of a protected variety in respect 
of which, under the law of that country, it is not possible to make the equivalent 
ofa grant, 
without the consent of the grantee is an infringement of the grantee's rights under this Ordinance. 
(5) The sale under the denomination of a protected variety of reproductive material of some 
other variety constitutes an infringement of the rights under this section of the grantee of that 
protected variety, unless the groups of plants to which those varieties belong are internationally 
recognized as being distinct for the purposes of denomination. 
(6) Where, in any proceedings under this section for the infringement of the rights of a 
grantee, it is proved or admitted that an infringement was committed but proved by the defendant 
that, at the time of that infringement, the defendant was not aware and had no reasonable grounds for 
supposing that it was an infringement, the plaintiff shall not be entitled under this section to any 
damages against the defendant in respect of that infringement, but shall be entitled instead to an 
account of profits in respect of that infringement. 
(7) Nothing in subsection (6) affects any entitlement of a grantee to any relief in respect of 
the infringement of that grantee's rights under this Ordinance other than damages. 
Chapter: 490 Title: PLANT V ARlETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 26 Heading: Exceptions to grantees' rights Version Date: 24/10/1997 
Notwithstanding section 25 it shall not be an infringement of the rights of a grantee for any 
person-
Chapter: 
Section: (a) to use reproductive material from a protected variety for human consumption or 
other non-reproductive purposes; 
(b) to use, propagate or grow a protected variety for 
(i) non-commercial purposes; 
(ii) experimental or research purposes; or 
(iii) the purposes of breeding a new variety; or 
(c) engaged in farming activities for the purpose of safeguarding agricultural or 
horticultural production, to use for reproductive purposes on his own holding, 
reproductive material from a protected variety where the type within which the 
protected variety is classified has been prescribed for the purposes ofthis section 
as exempt from the rights of a grantee and where such reproductive material 
490 
27 (i) has been legitimately obtained by purchase or otherwise with the authority 
of the grantee concerned; or 
(ii) having been so legitimately obtained has subsequently been propagated or 
grown on his own holding. 
Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Heading: Rights under licence Version Date: 24110/1997 
Where a person has been authorized by licence or otherwise under section 2S(1)(d) that 
person so authorized shall have the same rights as that grantee to take proceedings in respect of any IP/N/IIHKG/P/5 
Page 13 
infringement of the rights of that grantee in respect of the variety concerned affecting the rights given 
under that licence and committed after it was granted. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
Section: PROTECTION ORDINANCE of 1997 
28 Heading: Notice of protection Version Date: 2411011997 
(1) Any person who 
(a) has acquired rights in respect of a variety under section 17(1) or 25; and 
(b) sells any reproductive material of that variety, shall take all reasonable steps, by 
means of suitable labelling or other identification of that material, to inform the 
purchaser concerned of those rights. 
(2) In determining, for the purposes of section 25(6), whether or not any person had 
reasonable grounds for supposing that any action was an infringement of the rights of a grantee, a 
court may take into account the extent, if any, to which that grantee or, as the case requires, the 
licensee concerned had complied with subsection (1) in respect of any material in respect of which, 
or in respect of material propagated from which, that infringement occurred. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of1997 
Section: 29 Heading: Use of reproductive material Version Date: 24/1011997 
with permission of Registrar etc. 
(1) Any person may at any time after the making of a grant, on payment of the prescribed 
fee request the Registrar to consider whether or not reasonable quantities of reproductive material of 
a reasonable quality of the variety concerned are available for purchase by members of the public at a 
reasonable price. 
(2) Where a request is made under subsection (1), the Registrar shall give the grantee 
concerned notice of it and a reasonable opportunity to be heard in relation to it, and if, after 
considering any submissions made to the Registrar by that grantee within that time, the Registrar is 
satisfied there are not available for purchase by members of the public at a reasonable price 
reasonable quantities of reproductive material of reasonable quality of the variety concerned, the 
Registrar shall grant to the person who made that request one or both of the following-
(a) permission for the reproduction and sale of reproductive material by that person 
of that variety; 
(b) an order requiring that grantee to sell to that person reproductive material of that 
variety. 
(3) In considering whether or not there are available to members of the public at a 
reasonable price reasonable quantities of reproductive material of reasonable quality of a variety, the 
Registrar shall not take into account any reproductive material that is available only subject to the 
condition that all or any of the produce from that material must be sold or offered to a specified 
person, or to 1 of a specified group of persons, or to a member of a specified class or description of 
person. 
(4) Any permission or order granted under subsection (2) shall be in writing. 
(5) When granting any permission or order under subsection (2), the Registrar shall 
specify a royalty or payment or a means of calculating a royalty or payment, payable by the person to 
whom that permission is granted or by the purchaser concerned to the grantee concerned, being, in 
the opinion of the Registrar, a royalty or payment that is, or a means that will produce a royalty or 
payment that is, in all the circumstances, equitable, and-
(a) it shall be a condition of that grant of permission or order that the person to 
whom that permission is granted or purchaser shall pay to that grantee that IP/N/1/HKG/P/5 
Page 14 
royalty or payment or a royalty or payment so calculated, as the case requires; 
and 
(b) that grant of permission or order shall be subject to any other terms and 
conditions the Registrar thinks fit. 
(6) Any permission or order granted under subsection (2) shall have effect according to 
its tenor as if it were a contract voluntarily entered into by the grantee and the other person 
concerned. 
(7) Subject to this Ordinance, the Registrar may at any time­
(a) on the application of any person; and 
(b) if the Registrar thinks it appropriate, 
limit, vary, extend, or revoke, any permission or order granted under subsection (2). 
(8) As soon as is possible after granting any permission or order under subsection (2), or 
limiting, varying, extending, or revoking, any such permission or order, the Registrar shall notify in 
the Gazette brief details of the action taken. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
Section: PROTECTION ORDINANCE 
30 Heading: Use of denomination 
Any person who sells reproductive material of 
(a) a protected variety; or of 1997 
Version Date: 2411011997 
(b) a variety that was a protected variety until the grant made in respect of it 
expired, 
shall use its denomination, and shall not associate any trade mark, trade name, or other similar 
indication with that denomination unless that denomination is clearly recognizable. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
Section: PROTECTION ORDINANCE of 1997 
31 Heading: Extension of grant of plant Version Date: 24/1011997 
variety rights to cover essentially 
derived varieties 
(1) Where-
(a) after a grant is made to any person in respect of a variety (the "initial variety") 
and is made to another person in respect of another variety; and 
(b) the Registrar, on the application of the first-mentioned person, by notice in 
writing declares that the other variety is an essentially derived variety from the 
initial variety, 
the rights granted in respect of the initial variety mentioned in section 25 (rights of grantees) shall 
apply, with effect from the date of the notice in writing, to that other variety. 
(2) An application made under subsection (1) shall be accompanied by the prescribed 
application fee and treated as if it were an application made under section 13 (application for grant) 
and Part 111 (grant of plant variety rights) shall be read with such modifications as may be necessary 
to make the same applicable to the circumstances of an application made under subsection (1). 
(3) For the purposes of this section a variety shall be treated as being an essentially 
derived variety of another variety if-
(a) it is predominantly derived from that other variety; 
(b) it retains the relevant characteristics that result from the genotype or 
combination of genotypes of that other variety; 
(c) it is clearly distinguishable from that other variety; and IPINIlIHKG/P/5 
Page 15 
(d) except for the differences which result from the act of derivation, it conforms to 
the initial variety in the expression of the relevant characteristics that result from 
the genotype or combination of genotypes of that other variety. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 32 Heading: Rights of appeal Version Date: 24110/1997 
PART IV 
APPEALS 
(1) Any person aggrieved by a decision of the Registrar made in respect of him to 
decline to make a grant under section 18 may, within 28 days after being given notice of that decision 
by the Registrar, appeal to the court against that decision. 
(2) Any person aggrieved by the making of a grant may, at any time, appeal to the court 
against the making of that grant upon the ground that that grant was made in contravention of this 
Ordinance. 
(3) Where the Registrar cancels a grant under section 21, the grantee may, within 28 
days after being given notice of the cancellation by the Registrar, appeal to the court against that 
cancellation on the ground that it has not been established that, if that grant had not already been 
made, some other person making an application in respect of the variety concerned would, by virtue 
of section 20, be entitled to a grant in respect ofthat application. 
(4) Any person aggrieved by any decision of the Registrar made in respect of him, not 
being a decision referred to in any of subsections (1) to (3)-
(a) relating to an application or the cancellation of a grant; 
(b) imposing any condition in respect of a grant; 
(c) declining to modify any aspect of a grant; or 
(d) refusing to grant any permission or order under section 29(2), 
may, within 28 days after being given notice of that decision by the Registrar, appeal to the court 
against that decision. 
(5) The owner of a protected variety may, at any time, appeal to the court against any 
decision of the Registrar to grant any permission or order under section 29(2) in respect of that 
variety, or to extend or vary any such grant of permission or order. 
(6) The person to whom any permission or order was granted under section 29(2) may, at 
any time, appeal to the court against any decision of the Registrar to limit, vary, or revoke that grant 
of permission or order, or to issue it subject to any terms or conditions. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 33 Heading: Right to appeal in person Version Date: 24/10/1997 
(1) Notwithstanding any rule oflaw to the contrary, an appellant may begin and carry on 
an appeal in the court under this Part by a solicitor or in person. 
(2) A person, being a body corporate, may begin and carry on an appeal in the court 
otherwise than by a solicitor by an officer or a director of the body corporate authorized in that behalf 
by a resolution of the board or committee of the body corporate. IP/N/1/HKG/P/5 
Page 16 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 34 Heading: Filing and notice of appeals Version Date: 2411011997 
Remarks: 
Amendments retroactively made-see 25 of 1998 s. 2 
(1) Every appeal to the court under section 32 shall be made by 
(a) filing a notice of appeal in the prescribed form at the office of the Registrar of 
the High Court; and 
(b) serving a copy of that notice of appeal on the Registrar. 
(2) Where an appeal is begun or carried on by a person being a body corporate, by an 
officer or a director of the body corporate authorized in that behalf, a copy of the resolution referred 
to in section 33(2) shall be filed at the office of the Registrar of the High Court. 
(Amended 25 of 1998 s. 2) 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 35 Heading: Advice to court as to technical or Version Date: 2411011997 
specialised matters 
(1) If a court is satisfied whether or not on the application of any party to that appeal that 
any appeal under section 32 involves the consideration of technical or specialised matters, and that it 
would be desirable for a person with expert knowledge of those matters to be an adviser in relation to 
that appeal, the following provisions shall apply-
(a) the court shall consult the parties to the appeal as to a suitable person to be an 
adviser in relation to the appeal; 
(b) if the court and those parties agree on a suitable person, the court shall appoint 
that person to be an adviser in relation to that appeal; 
(c) if the court and those parties do not agree on a suitable person, the court may 
appoint to be an adviser in relation to that appeal any person the court thinks 
suitable; and 
(d) an adviser appointed under this subsection shall sit with the court during the 
appeal, but shall have no power of decision in relation to the appeal. 
(2) A court may appoint 1 or more adviser under subsection (1) in respect of a single 
appeal if satisfied that the nature of the technical or specialised matters concerned so warrants. 
(3) No appointment of an adviser under subsection (1) shall, in any proceedings, be 
called into question on the grounds that the occasion for that appointment had not arisen or had 
ceased. 
(4) Every adviser appointed under subsection (1) is entitled to receive such-
(a) remuneration by way of fees or allowances, for his services as an adviser; and 
(b) payment of travelling allowances or expenses in respect of time spent 
travelling in connection with undertaking services, 
as may be prescribed and any such remuneration or payment shall be charged on the general revenue. 
(5) Subject to subsection (6) a court, after hearing an appeal under section 32, may­
(a) confirm the decision appealed against; or 
(b) modify or reverse that decision or any part of it. 
(6) Nothing in subsection (5) authorizes a court to review any decision of the Registrar, 
or any part of a decision of the Registrar, if no appeal has been made against that decision or part. Chapter: 490 Title: PLANT VARIETIES 
PROTECTION ORDINANCE 
Section: 36 Heading: Procedure on appeal IP/N/1/HKGIP/5 
Page 17 
Gazette Number: L.N. 492 
of 1997 
Version Date: 2411011997 
Expanded Cross Reference: 
33,34,35 
Remarks: 
Amendments retroactively made-see 25 of 1998 s. 2 
In dealing with an appeal under this Part-
(a) a court may hear all evidence tendered and representations made by or on 
behalf of any party to that appeal that that court considers relevant to that 
appeal, whether or not that evidence would be otherwise admissible in that 
court; 
(b) subject to section 33 to 35 and to paragraph (a), the Rules of the High Court 
(Cap 4 sub. leg.) shall apply to that appeal; and <* Note -Exp. X-Ref.: 
Sections 33, 34, 35 *> (Amended 25 of 1998 s. 2) 
(c) except as provided in this Part, a court shall determine its own procedure in 
relation to the determination of that appeal. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of1997 
Section: 37 Heading: Suspension of decision while Version Date: 2411011997 
appeal pending 
Where any person has appealed against any decision of the Registrar, the operation of that 
decision shall be suspended until the appeal concerned has been finally disposed of. 
Chapter: 490 Title: PLANT VARIETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 38 Heading: Falsification of applications Version Date: 24110/1997 
PART V 
OFFENCES 
(1) Any person who, in an application or in an attachment to an application, furnishes or 
supplies with intent to deceive any false or misleading information commits an offence. 
(2) Any person who falsely represents that any person is the owner of a protected variety 
or that any person has applied for a grant in respect of any variety knowing or having reason to 
believe that the representation is false, commits an offence. 
(3) Any person who commits an offence under this section is liable on conviction to a 
fine at level 6. IP/N/lIHKG/P/5 
Page 18 
Chapter: 490 Title: PLANT V ARlETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 39 Heading: Falsely representing plant Version Date: 2411011997 
variety right as registered 
Any person-
(a) who falsely represents that a plant variety right is a registered plant variety right; 
(b) selling material of a variety who falsely represents that-
(i) that variety is a protected variety or a variety in respect of which an 
application has been made; or 
(ii) that variety is material of some other variety being a variety that is a 
protected variety or a variety in respect of which an application has been 
made, 
knowing or having reason to believe that the representation is false commits an offence and is liable 
on conviction to a fine at level 6. 
Chapter: 490 Title: PLANT V ARlETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 40 Heading: Misuse of denomination on sale Version Date: 2411011997 
of reproductive material 
Any person who wilfully or negligently sells reproductive material otherwise than in 
compliance with the requirements of section 30 commits an offence and is liable on conviction to a 
fine at level 6. 
Chapter: 490 Title: PLANT V ARlETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 41 Heading: Hours of business and business Version Date: 24/1011997 
days 
PARTVl 
MISCELLANEOUS 
(1) The Registrar may give directions in writing specifying the hours of business of his 
office for the purpose of the transaction by the public of business under this Ordinance and the days 
which are business days for that purpose. 
(2) Business done on any day after the specified hours of business, or on a day which is 
not a business day, shall be deemed to have been done on the next business day; and where the time 
for doing anything under this Ordinance expires on a day which is not a business day, that time shall 
be extended to the next business day. 
Chapter: 490 Title: PLANT V ARlETIES Gazette Number: L.N. 492 
PROTECTION ORDINANCE of 1997 
Section: 42 Heading: Regulations Version Date: 2411011997 
(1) The Secretary for Economic Services may make regulations-
(a) for the purposes of this Ordinance authorizing the making of regulations with 
respect to any matter; IP/N/lIHKGIP15 
Page 19 
(b) for prescribing anything authorized or required by this Ordinance to be 
prescribed; and 
(c) generally for regulating practice and procedure under this Ordinance. 
(2) Without affecting the generality of subsection (1), regulations made under this 
section may make provision-
(a) as to the manner of filing of applications and other documents and in respect of 
anything that is to accompany or be furnished together with any application; 
(b) as to the procedure to be followed in connection with any application or request 
to the Registrar or in connection with any proceedings before the Registrar, and 
authorizing the rectification of irregularities of procedure; 
(c) providing for the testing and treatment of plant varieties to which applications 
relate; 
(d) requiring and regulating the translation of documents and the filing and 
authentication of any translation; 
(e) as to the service of documents; 
(t) prescribing time limits for anything required to be done under this Ordinance; 
(g) providing for the extension of any time limit so prescribed, or specified by the 
Registrar, whether or not it has already expired; 
Ch) providing for the forfeiture of any priority given in respect of an application; 
Ci) prescribing a form for appeals under Part IV; 
G) authorizing the preparation, publication, sale, and exchange of copies of 
diagrams, photographs, and documents at the office of the Registrar, and of 
indexes to and abridgments to them; 
(k) prescribing the mode of publishing any matters required by this Ordinance to be 
published; 
(1) prescribing the requirements to be met in selecting the denomination of varieties, 
and providing for the approval, rejection, or amendment of any denomination by 
the Registrar; 
(m) prescribing fees and charges for anything authorized by this Ordinance. 
(3) No allowance, expense, fee or charge shall be prescribed under this section without 
the consent of the Financial Secretary. 
Chapter: 490 Title: PLANT VARIETIES 
PROTECTION ORDINANCE 
Schedule: 1 Heading: PLANTS TO WHICH 
ORDINANCE APPLIES 
All plants other than 
(a) Inedible Algae; 
(b) Inedible Fungi. Gazette Number: L.N. 492 
of 1997 
Version Date: 24/10/1997 
[sections 2 & 4]