WORLD TRADE ORGANIZATION
ORGANISATION MONDIALE DU COMMERCE
ORGANIZACIÓN MUNDIAL DEL COMERCIOIP/N/1/PRT/P/1
7 December 1999
(99-5385)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal: English/
anglais/
inglés
MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND REGULATIONS
NOTIFIED UNDER ARTICLE 63.2 OF THE AGREEMENT
PORTUGAL
The present text reproduces the text of Decree-Law no. 213/90 of 28 June 1990 Ministerial Order No.
940/90 of 4 October 1990 and Regulations on the Protection of New Plant Varieties thereunder,1as notified by
Portugal under Article 63.2 of the Agreement (see document IP/N/1/PRT/1/Rev.1).
Conseil des aspects des droits de propriété
intellectuelle qui touchent au commerce
PRINCIPALES LOIS ET REGLEMENTATIONS CONSACREES A LA PROPRIETE
INTELLECTUELLE NOTIFIEES AU TITRE DE L'ARTICLE 63:2 DE L'ACCORD
PORTUGAL
Le présent document contient les textes du Décret-loi n° 213/90 du 28 juin 1990, de l'Arrêté ministériel
n° 940/90 du 4 octobre 1990 et du Règlement d'application sur la protection des obtentions végétales1, notifiés
par le Portugal au titre de l'article 63:2 de l'Accord (voir document IP/N/1/PRT/1/Rev.1).
Consejo de los Aspectos de los Derechos de Propiedad
Intelectual relacionados con el Comercio
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA PROPIEDAD INTELECTUAL
NOTIFICADOS EN VIRTUD DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO
PORTUGAL
En el presente documento se reproducen los textos del Decreto Ley Nº 213/90 de 28 de junio de 1990
del Decreto Ministerial Nº 940/90 de 4 de octubre de 1990 y del Reglamento sobre la protección de las nuevas
obtenciones vegetales anexo al mismo1notificadas.
1In English only/En anglais seulement/En inglés solamente.IP/N/1/PRT/P/1
Page 2
MINISTRY OF AGRICULTURE, FISHERIES AND FOOD
Decree-Law No. 213/90
(of June 28)
The extraordinary progress made in plant improvement, due among other things to
ever-greater knowledge in the fields of physiology and biotechnology, has been responsible for the
appearance of new varieties In almost all developed countries.
Thanks to their superior or improved characteristics, those new varieties - already commonly
called "prestige varieties" - are designed to solve, the problems of improving quality, increasing
unitary yield, enhancing disease and parasite resistance or raising market value.
In order to produce and establish their new varieties, breeders have to devote a great deal of
time to research, invest considerable amounts in the acquisition of material and conduct numerous
experiments and growing trials.
It is therefore no more than justice that they should be granted breeders' rights In the form of a
title of protection for such varieties, which, by ensuring just recompense for their skills and their
work, at the same time strongly motivates them to develop their plant breeding work and thereby
contribute to the defense and enrichment of the national genetic heritage.IP/N/1/PRT/P/1
Page 3
Consequently,
Pursuant to subparagraph (a) of paragraph (1) of Article 201 of the Constitution, the
Government decrees as follows:
Article 1
Object
(1) This Decree-Law establishes the legal regime governing breeders' rights in new plant
varieties.
(2) Those botanical species the plant varieties of which may be the subject of breeders' rights
shall be specified by order of the minister of Agriculture, Fisheries and Food.
Article 2
Plant Varieties Eligible for Protection
Breeders' rights may be accorded solely In respect of those plant varieties which, according to
the definition to be laid down by order of the Minister of Agriculture, Fisheries and Food, are deemed
to be distinct, homogeneous, stable and new.
Article 3
Content of Plant Breeder's Rights
(1) The breeders' rights in a plant variety confer on their owner exclusive entitlement to produce
and market plants of that variety or the corresponding reproductive or vegetative propagating
material.IP/N/1/PRT/P/1
Page 4
(2) Plant breeders' rights shall not prevent the use of the protected plant variety as initial or basic
material for the production of other varieties, except where its repeated or systematic use is necessary.
Article 4
Term of Plant Breeders' Rights
(1) Plant breeders' rights shall have a limited term which shall be a minimum of 15 or 20 years,
depending on whether they relate to herbaceous plants or to woody plants.
(2) Terms may differ according to species or group of species.
Article 5
Lapse of Plant Breeders' Rights
Plant breeders' rights shall lapse, Inter alia:
(a) when their term has expired;
(b) when fees due have not been paid;
(c) when the new plant variety no longer displays' the characteristics required by this
Decree-Law and the Regulations under it;
(d) when the breeder or the actual owner so requests;
(e) when it is demonstrated that the holder of the rights is not the lawful owner thereof.IP/N/1/PRT/P/1
Page 5
Article 6
National Registry of Protected varieties
(1) The National Registry of Protected Varieties (Centro Nacional de Registo de Variedades
Protegidas - CENARVE) is hereby created, to operate within the framework of the National Institute
of Agricultural Research (Instituto Nacional de Investigaçao Agrária---INIA), the current President of
which shall direct it.
(2) CENARVE shall be responsible for taking the necessary action for the implementation of this
Decree-Law.
(3) The President of INIA, in his capacity as Director of CENARVE, shall be assisted, in the
exercise of the functions conferred on him by this Decree-Law, by a Technical Board, the
membership of which shall be laid down by order of the Minister of Agriculture, Fisheries and Food.
(4) The members of the Technical Board shall carry out their functions without remuneration.
Article 7
Offenses
(1) The production, marketing and use of plant varieties in breach of the .provisions of Article 3
of this Decree-Law and the Regulations for which it provides shall constitute an offense punishable
with a fine of 20,000 to 500,000 escudos.IP/N/1/PRT/P/1
Page 6
(2) Negligence shall be punishable.
(3) Where liability for the offense lies with a legal entity, the maximum amounts of the fines shall
be 6,000,000. escudos in the case of a fraudulent act or 3,000,000 escudos In the case of an act
committed by negligence.
(4) Forty per cent of the proceeds from fines Imposed shall be paid to INIA, and the balance to
the State Treasury.
Article 8
Fees
For the purposes of registration with CENARVE and the keeping of its Register, the persons
and entities concerned shall pay fees, the amount of which shall be set In accordance with
paragraph (2) of Article 38 of Decree-Law No. 5-A/88 (of January 14, 1988).
Article 9
Regulations
The technical provisions for the Implementation of this Decree-Law shall be approved by
order of the Minister of Agriculture, Fisheries and Food.
Read and approved in the Council of Ministers on May 17, 1990. Aníbal António Cavaco
Silva-Alvaro dos Santos Amaro-Luís Fernando Mira Amaral-Fernando Manuel Barbosa Faria de
Oliveira.IP/N/1/PRT/P/1
Page 7
Promulgated on June 11, 1990.
For publication.
Mario Soares, President of the Republic.
Countersigned on June 18, 1990.
Aníbal António Cavaco Silva, Prime MinisterIP/N/1/PRT/P/1
Page 8
MINISTRY OF AGRICULTURE, FISHERIES AND FOOD
Ministerial Order No. 940/90
(of October 4, 1990)
Whereas Decree-Law No. 213/90 (of June 28, 1990) lays down the general principles of the
legal regime governing breeders' rights In new plant varieties;
Whereas it is becoming essential to organize and establish those principles;
Considering the provisions of paragraph (2) of Article 1, paragraph (3) of Article 6 and
Articles 8 and 9 of Decree-Law No. 213/90 (of June 28, 1990);
The Government, through the agency of the Minister of Agriculture, Fisheries and Food,
orders as follows:
1. (1) The Regulations on the Protection of New Plant Varieties, annexed to this Order, of
which they form an integral part, are approved.
(2) The Regulations on the Protection of New Plant Varieties shall enter force 30 days
after the date of their publication.
2. (1) The National Registry of Protected Varieties, designated by the abbreviation
CENARVE ,shall be the department responsible for the Implementation of the provisions of
this Order.IP/N/1/PRT/P/1
Page 9
(2) CENARVE shall operate within the framework of the National Institute of
Agricultural Research, and shall be directed by the President of that Institute or by his representative.
3. CENARVE shall be responsible, inter alia, for the following:
(a) producing and examining documents in support of the grant of plant breeders' rights;
(b) conducting tests and inspections and taking any other action necessary to evaluate
and rule on applications for the grant of plant breeders' rights;
(c) requesting or contracting for the provision of specialized services in its areas of
concern, particularly with regard to DHS (distinctness, homogeneity and stability) testing;
(d) producing a periodical journal to publicize the varieties granted protection and also
the most important documents from the files on the grant of plant breeders' rights;
(e) seeking the cooperation of the Departments of the ministry of Agriculture, Fisheries
and Food where such cooperation proves necessary for the proper conduct of its activities;
(f) coordinating its action with that of other bodies-both national and foreign-that
concern. themselves with plant variety protection matters, and promoting the conclusion of
such agreements and protocols as may prove necessary or useful for the safeguarding of the
interests in its charge.IP/N/1/PRT/P/1
Page 10
4. The Director of CENARVE shall be responsible, inter alia, for the following:
(a) directing CENARVE and coordinating its operations;
(b) presiding over the Technical Board of CENARVE;
(c) issuing plant plant breeders' certificates, amending them or revoking them;
(d) proposing to higher authorities such regulatory and legislative acts and measures as
are necessary-for the discharge of CENARVE's duties;
(e) performing any other acts provided for In this Order or In other legislative or
regulatory texts.
5. (1) The Technical Board Is a consultative body that advises the Director of CENARVE;
its members shall be the following:
(a) the Director of CENARVE, who shall preside over it;
(b) the Director of the National Center for the Protection of Agricultural Production, or
his representative;
(c) a representative of the breeders' associations;
(d) a representative of the seed producers' associations;IP/N/1/PRT/P/1
Page 11
(e) a representative of the associations of producers of vegetative propagating material;
(f) two public figures of recognized competence In the field of plant variety protection,
one of them having legal training.
(2) The members referred to in the foregoing paragraph under (c), (d) , (e) and (f) shall be
designated by the Director of CENARVE, after the relevant associations have been heard.
(3) The Director of CENARVE may Invite public figures of recognized competence to
attend meetings of the Technical Board, without the right to vote, should such a step prove useful for
the clarification of matters under consideration.
(4) The secretariat shall be provided by a CENARVE official designated by the
Chairman of the Board, which official shall not have the right to vote.
6. (1) The Technical Board of CENARVE shall be responsible, inter alia, for the following:
(a) issuing the advice provided for in this Order and pronouncing on all questions
submitted to it by the Director of CENARVE;
(b) proposing to the Director of CENARVE such acts and measures as it consi~4rs useful
for the satisfactory performance of the Registry's duties.
(2) Where not provided otherwise by law or by a decision of the Director of CENARVE,
the Technical Board shall issue the reports requested off it within a maximum period of one month.IP/N/1/PRT/P/1
Page 12
The Technical Board shall meet in accordance with the rules governing it; minutes shall be
taken of every meeting.
8. (1) For the purpose of publicizing the main documents in the files entrusted to
CENARVE, a periodical journal entitled CENARVE Bulletin (Boletim do CENARVE) shall be
produced.
(2) The CENARVE Bulletin shall publish the following, inter alia:
(a) applications for the grant of plant breeders' rights accepted by CENARVE;
(b) the refusal and the grant of plant breeders' certificates, and also the amendment,
revocation or lapse thereof where applicable.
Ministry of Agriculture, Fisheries and Food
Signed on September 14, 1990
For the Minister of Agriculture, Fisheries and Food,
Alvaro dos Santos Amaro, Secretary of State for Agriculture.IP/N/1/PRT/P/1
Page 13
Regulations on the Protection of New Plant Varieties
Chapter I
General Provisions
Article 1
Object
These Regulations establish the legal regime for the protection of plant breeders' rights in
accordance with Decree-Law No. 213/90 of June 28, 1990.
Article 2
Persons to Whom the Regime Applies
(1) Foreigners shall enjoy the protection granted to nationals under the conditions laid
down in the conventions to which Portugal is party.
(2) In the absence of international conventions, foreigners shall enjoy the protection
granted to nationals except where the legal order in the country concerned, while granting protection
to its own nationals, does not do so to Portuguese nationals in the same circumstances.IP/N/1/PRT/P/1
Page 14
Article 3
Definitions
For the purposes of these Regulations:
(a) "clone" means a group of individuals produced by vegetative propagation from a
single plant that have an Identical genetic heritage;
(b) "line" means a natural or artificial sexually-reproduced group having sufficient
uniformity;
(c) "strain" means the offspring of plants of the same origin, produced by breeding and
possessing numerous common characteristics;
(d) "hybrid" means a plant resulting from spontaneous or Induced crosses from parent
material with a generally different genetic heritage;
(e) "new plant variety" means any variety (cultivar), clone, line, strain or hybrid
recognized as such from a technical or commercial point of view.IP/N/1/PRT/P/1
Page 15
Chapter II
Fundamental Principles
Article 4
Content of Plant Breeders ' Rights
(1) The breeders' rights in a plant variety shall confer on their owner exclusive entitlement to
produce and market plants of that variety or the corresponding reproductive or vegetative propagating
material.
(2) Plant breeders' rights shall not prevent the use of the protected plant variety as initial or basic
material for the production of other varieties, except where its repeated or systematic use is necessary.
Article 5
Requirements for the Grant of Plant Breeders' Rights
(1) Breeders' rights in a plant variety shall be granted for any new product which:
(a) is distinct, meaning that, irrespective of the manner in which it is produced., it differs
from any other variety the existence of which Is a matter of common knowledge by one or
more characteristics susceptible of recognition arid precise description;
(b) is homogeneous, meaning that all the plants constituting the new variety are similar
with respect to the particular features of their reproduction or vegetative propagation;IP/N/1/PRT/P/1
Page 16
(c) is stable, meaning that, after a succession of reproductions or vegetative propagations,
it has the same essential characteristics according to the description given by its breeder;
(d) is new, meaning that, on the filing date of the corresponding application for
protection, it has not been put on sale or marketed within the country for more than one
year - with its breeder's consent - or abroad for more than six years or four years in the case of
woody plants or herbaceous plants respectively.
(2) In addition to the conditions specified In the foregoing paragraph, the grant of plant
breeders' rights shall be determined by the conformity of the relevant denomination to the provisions
of these Regulations and by compliance with the other conditions laid down therein.
Article 6
Term of Plant Breeders' Rights
Plant breeders' rights shall have a term of 15 or 20 years for herbaceous and woody plants
respectively.
Article 7
Protected Species
The botanical species the varieties of which may be the subject of plant breeders rights shall initially
be the following:
(a) cereals: rice, oats, rye, barley, maize, wheat and triticale;
(b) oil-bearing plants: Sunflower,
(c) fodder plants: ryegrass, vetch, lupin, clover, lucerne fescue.IP/N/1/PRT/P/1
Page 17
Chapter III
Procedure for the Grant of Protection
Article 8
Persons Qualified to Apply for the Grant of Plant Breeders' Rights
(1) The grant of plant breeders' rights in a plant variety may be applied for by the breeder thereof
or by whoever succeeds him, whether by contract or mortis causa, provided that the person concerned
is:
(a) of Portuguese nationality;
(b) of foreign nationality but resident in Portugal;
(c) a legal entity with headquarters in Portugal;
(d) a national of a member State of the International Union for the Protection of New
Varieties of Plants (UPOV) or a natural person or legal entity with residence or headquarters
in one of the States of the Union, provided that the State concerned grants protection to the
species or genus to which the variety referred to In the application belongs;
(e) a national of another State or a natural person or legal entity with residence or
headquarters in a State in which Portuguese, or foreigners resident in Portugal and legal
entities with headquarters in Portugal, enjoy the same protection as is accorded to the
nationals of the State concerned with respect to varieties belonging to the genus of species
referred to in the application.
(2) Persons or entities not resident or not having headquarters in Portugal may apply for the grant
of plant breeders' rights only if they designate a representative who fulfils those conditions.IP/N/1/PRT/P/1
Page 18
(3) Where two or more persons have jointly discovered a plant variety, the corresponding
application for plant breeders, rights shall likewise be drawn up jointly; a representative shall however
be appointed who shall act in the name of all of them in any relations. to be conducted with
CENARVE.
(4) The representative referred to in the foregoing paragraph may be one of the applicants or a
third party. Where no representative is appointed, the applicant named first shall be considered the
representative.
Article 9
Application for the Grant of Plant Breeders' Rights
(1) The application for the grant of plant breeders' rights may be filed with CENARVE
personally or sent by registered letter with notice of receipt.
(2) The application, made on the appropriate printed forms provided by CENARVE, shall be
written in Portuguese, and any documents to be submitted that are written in a foreign language shall
be accompanied by a duly certified translation.
(3) The date of the application shall be that of Its filing with CENARVE.IP/N/1/PRT/P/1
Page 19
Article 10
Conditions to Be Met by the Application for the
Grant of Plant Breeders' Rights
1. The application for the grant of plant breeders' rights shall contain the following particulars,
inter alia:
(a) the name or business style of the applicant, with domicile or headquarters;
(b) the nationality of the applicant in the case of a natural person;
(c) the name and address of the representative, if any;
(d) the name and address of the breeder, if other than the applicant;
(e) the denomination of the plant variety or the designation given it by its breeder;
(f) where the plant variety is protected or where protection has already been applied for
in any country, the following particulars shall also be given;
- the identity of that country or those countries;
- the denomination registered in that country or those countries;
- the number under which the application for or title of protection is registered;
- the date of the application or title granted;
(g) if any priority is claimed, the date of the first application for protection and the
country in which it was filed;
(h) the signature of the applicant or his representative.
(2) The application shall be accompanied by the following:IP/N/1/PRT/P/1
Page 20
(a) a full description of the plant variety;
(b) a power of attorney signed before a notary, where the application is filed by a
representative;
(c) where the application is not filed by the breeder, a document attesting the acquisition
of the corresponding rights;
(d) a declaration stating that the plant variety is new within the meaning of these
Regulations;
(e) a declaration stating that the applicant undertakes, as from the grant of plant breeders'
rights, not to exercise his rights in the use of any trademark or trade name liable to cause
confusion with the denomination for which protection is sought that may have been registered
in his favor in the country or In any other country with which Portugal has entered Into an
agreement on Identical or similar goods;
(f) any other particulars that the applicant considers useful for the full evaluation of the
application;
(g) the amount of fees payable;
(h) an inventory of the documents submitted to CENARVE.
(3) The description referred to In subparagraph (a) of the foregoing paragraph shall state,
inter alia:
(a) the botanical species to which the plant variety belongs;
(b) the main morphological and physiological characteristics and also, in the case of
hybrid varieties, the main morphological and physiological characteristics of the parents;
(c) the technique used to breed the variety concerned;
(d) the similarities and differences of the variety in relation to any other variety In
existence.IP/N/1/PRT/P/1
Page 21
Article 11
Benefit of Priority
(1) When applying for the grant of breeders' rights in a plant variety, the person concerned may
claim the benefit of priority if, less than one year previously, he has filed an application in due form
for the protection of the same variety in a member country of UPOV.
(2) The effect of the benefit of priority shall be that the date of the application shall be deemed to
be that of the earlier application filed in the foreign country.
(3) The request for priority shall be considered in the light of copies of the documents attesting
the filing of the earlier application for the grant of plant breeders' rights on the basis of which priority
is claimed, duly certified and dated by the appropriate departments.
(4) The documents referred to in the foregoing paragraph shall be filed together with the
application for the grant of plant breeders' rights or within the three months thereafter, failing which
the benefit of priority shall not be recognized.
(5) Where appropriate, the applicant shall state in the application for the grant of plant breeders'
rights the date on which he Intends to submit the propagating material referred to in paragraph (3) of
Article 16, as the period of four years following the date on which the priority expires may not be
exceeded.IP/N/1/PRT/P/1
Page 22
(6) the request for priority shall be accompanied by the amount of the fee payable.
Article 12
Denomination of the Plant Variety
(1) Any plant variety shall be designated by a single denomination that enables it to be identified
and is different from that used for any other plant variety of the same or a related species already
registered in the country or in any other member State of UPOV.
(2) The denomination given to a protected variety may not be used as a trademark or trade name
for any new plant variety of the same or a related species.
Article 13
Conditions to Be Met by the Denomination
(1) The denomination of the plant variety may be composed of:
(a) not more than three words;
(b) an alphanumerical combination comprising not more than four elements;
(c) a combination of words and letters comprising not more than four elements;
(d) a combination of words and numerals comprising not more than four elements;
(2) The proposed denomination shall be written in full.
(3) The proposed denomination must not:IP/N/1/PRT/P/1
Page 23
(a) be difficult to pronounce or remember;
(b) be misleading as to the origin, source, value or characteristics of the plant variety or
the identity of the breeder;
(c) be identical, or easy to confuse, with another. denomination already registered in the
country or in any other member State of UPOV, which is used to designate a plant variety of
the same species or species in the same class;
(d) be contrary to morality or public policy;
(e) incorporate the botanical or common name of a plant genus or species, or the words
"variety," "cultivar," "hybrid," "form" or "cross";
(f) give the impression that the plant variety derives from another variety, or is related to
such a variety, when that is not the case;
(g) evoke solely characteristics that are common to other protected plant varieties of the
same species;
(h) be inadequate for linguistic reasons;
(i) be identical to a denomination used to designate another commonly-grown plant
variety, even if the latter variety is already public property.
(4) Notwithstanding the provisions of the foregoing paragraph, if the plant variety for which
protection is sought is already protected in another member State of UPOV, or if an application for
protection has already been filed in such a State, only the previously-used denomination may be
proposed and registered.
(5) The denomination of the protected plant variety shall always be used for the marketing of the
said variety, or for the marketing of propagating material of the variety, even after the term of
protection has expired.IP/N/1/PRT/P/1
Page 24
Article 14
Acceptance or Rejection of the Application
(1) Within a period of five working days following the date of its filing with CENARVE, the
application for the grant of plant breeders' rights shall be examined to determine whether it fulfils the
conditions laid down in these Regulations.
(2) If it contains all the elements necessary for evaluation, the application shall be accepted and
entered in a special register, in which the filing date shall also be recorded.
(3) Where the application is incomplete, or where CENARVE considers that further details are
necessary, it shall Invite the applicant to provide them and shall set a time limit for the purpose which
shall be neither shorter than 15 days nor longer than 30 days.
(4) Where the elements requested pursuant to the foregoing paragraph are not communicated
within the time limit set, the application shall be rejected and the fact shall be notified to the applicant,
who shall not be entitled to repayment of any fees already paid.
Article 15
Publication of the Application and
Oppositions Filed Against It
(1) Once the application has been accepted, it shall be published in the CENARVE Bulletin,
which shall record the date of filing, the name or business style of the applicant with residence or
headquarters, the name or business style of the breeder - if other than the applicant - with residence or
headquarters, the proposed denomination and the main characteristics of the variety as given in the
application.IP/N/1/PRT/P/1
Page 25
(2) Within two months following the date of the publication referred to in the foregoing
paragraph, any interested party may file opposition to the grant of plant breeders' rights.
(3) Oppositions shall be filed in triplicate and shall clearly and precisely state:
(a) the name or business style and residence or headquarters of the opponent;
(b) the application for plant breeders' rights opposed and the issue of the CENARVE
Bulletin in which it was published;
(c) the grounds on which the grant of plant breeders' rights should be refused.
(4) Oppositions filed with CENARVE shall be communicated to the applicant, in
order that the latter may reply to them within a period of 30 days.
Article 16
Decision on the Continuation of the Procedure
(1) On expiry of the time limit set in paragraph (2) of the foregoing Article or, where oppositions
have been filed, after the submission of the reply or the expiry of the time limit allowed for the
purpose, the Director of CENARVE shall decide whether to continue or to cancel the procedure,
basing his decision, inter alia, on oppositions filed and, if possible, satisfying himself that. the
requirement specified in subparagraph (d) of paragraph (1) of Article 5 has been fulfilled.IP/N/1/PRT/P/1
Page 26
(2) Cancellation of the procedure shall be notified to the applicant with sufficient statement of
reasons.
Article 17
Tests for, Distinctness, Homogeneity and Stability
(1) New plant varieties for which plant breeders' rights have been applied for shall be tested to
determine their distinctness, homogeneity and stability.
(2) The tests referred to in the foregoing. paragraph shall be carried out by CENARVE or by any
other body, either national or foreign, designated by it.
(3) CENARVE shall inform the applicant of the quantity of propagating material that he has to
provide, and also of the place and date of delivery: It shall likewise inform him of the body that will
be carrying out the tests the place in which they will be carried out, the date on which they will start
and their expected duration.
(4) In the course of the tests, CENARVE may request the applicant to provide further information
or additional propagating material, setting a date for compliance.
(5) Where the applicant does not deliver the propagating material referred to in paragraph (3) to
the place or on the date specified, or where without explanation he refuses to cooperate in the manner
described In the foregoing paragraph, the application shall be cancelled without reimbursement of any
fees already paid.IP/N/1/PRT/P/1
Page 27
Article 18
Test Results
(1) Once the DHS tests. have been completed, the body that has carried then out shall draw up a
report on them and also a final assessment of the new plant variety.
(2) The documents referred to in the foregoing paragraph shall be sent to the applicant, who shall
be allowed one month within which to comment on them.
Article 19
Advice of the Technical Board
Once the period referred to in paragraph (2) of the foregoing Article has expired, the file shall
be submitted to the Technical Board of CENARVE for its advice.
Article 20
Decision and Publication
(1) Once the advice of the Technical Board of CENARVE has been given or the period set for the
purpose has expired, the file shall be submitted to the Director of CENARVE for a decision.
(2) If the plant breeders' rights applied for are granted, a title called a "plant breeder's certificate"
shall be issued in which the following particulars shall appear:IP/N/1/PRT/P/1
Page 28
(a) the number thereof;
(b) the species to which the plant variety qualifying for plant breeders' rights belongs;
(c) the denomination given to the plant variety;
(d) the name of the owner of plant breeders' rights and that of the breeder if another
person;
(e) the date of grant of the certificate and that on which the protection afforded by it
ceases to operate;
(f) the signature of the Director of CENARVE.
(3) The grant of the plant breeder's certificate shall be published in the CENARVE Bulletin,
which shall record the elements referred to in the foregoing paragraph.
(4) Refusal to grant plant breeders' rights shall also be published, with an indication of the
grounds on which it was pronounced.
Article 21
Recording in the National Register of Protected Varieties
(1) The grant of plant breeders' rights shall be recorded in the Register of Protected Varieties in
chronological order.
(2) The Register entry referred to in the foregoing paragraph shall contain the following:
(a) the elements mentioned In paragraph (2) of the foregoing Article;
(b) the serial number and dates of filing and acceptance of the application;IP/N/1/PRT/P/1
Page 29
(c) the description of the plant variety, drawn up after the tests of identity, homogeneity
and stability;
(d) the name and residence of the representative, if any;
(e) the date on which the plant breeder's certificate was issued, and the date of
publication thereof in the CENARVE Bulletin;
(f) payment of the required fees;
(g) revocation or transfer of the plant breeder's rights;
(h) any licenses granted;
(i) judicial actions concerning the plant breeders' rights.
(3) Any alteration to Register entries shall be communicated to CENARVE for recording.
Chapter IV
Subsequent Controls and Maintenance Fees
Article 22
Subsequent Controls
(1) CENARVE may demand of the owner of plant breeders' rights that he provide additional
material or documents for the purposes of tests to determine whether the protected plant variety still
retains the characteristics on the basis of which the said rights were granted.
(2) For the purposes of the controls referred to in the foregoing paragraph, CENARVE may
inspect the maintenance growing plots.
(3) Failure to observe the provisions of paragraph (1), or unwarranted opposition to the
inspections referred to in the foregoing paragraph, shall cause the plant breeders' rights concerned to
be revoked.IP/N/1/PRT/P/1
Page 30
Article 23
Maintenance Fees
The owner of plant breeders' rights shall pay the appropriate maintenance fee for each year of
the term of protection.
Chapter V
Transfer of Plant Breeders' Rights and Exploitation Licenses
Article 24
Transfer of Plant Breeders' Rights
(1) Plant breeders' rights shall be transferable by contract or by inheritance.
(2) Any transfer under the foregoing Article shall be communicated to CENARVE within one
month, and shall give rise to payment of the corresponding fee.
Article 25
License Contracts
(1) The owner of plant breeders' rights may by contract, either free of charge or for a
consideration, authorize another person to exploit the plant variety covered by the rights.
(2) The conclusion of a contract as referred to in the foregoing paragraph shall be communicated
to CENARVE for recording in the Register of Protected Varieties.IP/N/1/PRT/P/1
Page 31
(3) Unless expressly provided to the contrary, the conclusion of a contract shall not prevent the
breeder from concluding other contracts or from exploiting the plant variety in question direct.
(4) The owner of an exploitation license may not transfer it or allow another person to exploit the
plant variety in question without the express authorization of the breeder.
(5) Transfer of the license shall be communicated to CENARVE for recording in the Register of
Protected varieties.
Article 26
Compulsory Licenses
(1) At the request of interested parties, CENARVE may decide to grant compulsory licenses
where such a step is considered necessary for the safeguarding of the public interest which requires
the rapid and wide distribution of the plant variety in question.
(2) When it grants a compulsory license, CENARVE shall set the equitable compensation, which
shall be economic in character, that accrues to the owner of the plant breeders' rights after the
interested party has been heard and the Technical Board has given its advice.
(3) A compulsory license shall be dependent:
(a) on the interested parties possessing the technical and economic means necessary for
the efficient exploitation of the plant variety concerned;IP/N/1/PRT/P/1
Page 32
(b) on the owner of the plant breeders' rights having refused without justification to enter
into a license contract with the interested party;
(c) on the interested party providing every assurance of payment of the compensation
referred to in paragraph (2);
(d) on a period of three years having elapsed after the date of grant of the plant breeders'
rights concerned;
(e) on payment of the fee due for the purpose.
(4) The term of the compulsory license shall be from two to four years; that term may be
prolonged if the conditions on the basis of which the license was granted continue to obtain.
(5) A compulsory license may be revoked if its holder fails to discharge the obligations that he
has assumed.
Chapter VI
Lapse and Revocation of Plant Breeders' Rights
Article 27
Lapse of Plant Breeders' Rights
Plant breeders' rights shall lapse on expiry of the periods referred to in Article 6.
Article 28
Revocation
(1) Plant breeders' rights shall be revoked:IP/N/1/PRT/P/1
Page 33
(a) for failure to pay the fees due;
(b) where the plant variety ceases to display the characteristics on the basis of which they
were granted;
(c) at the request of the owner;
(d) where the owner has not provided the material demanded by CENARVE for the
purposes of verifying the continued presence of the characteristics of the plant variety in
question;
(e) where the owner of the rights opposes the inspections referred to in paragraph (2) of
Article 19;
(f) where it is shown that the holder of the rights is not the rightful owner thereof.
(2) In the case provided for in subparagraph (f) of the foregoing paragraph, and at the request of
the rightful owner, plant breeders' rights may be granted to the said owner without the necessity of a
new grant procedure.
Chapter VII
Final Provisions
Article 29
Fees
(1) Each of the acts provided for in these Regulations shall give rise to the payment of the
following fees, which are calculated according to a system of points:IP/N/1/PRT/P/1
Page 34
points
(a) application for plant breeders' rights (Article 9) 12 500
(b) claim of the benefit of priority (Article 11) 4 500
(c) opposition to the grant of protection (Article 15) 4 500
(d) testing of distinctness, homogeneity and 25 000 to
stability carried out by CENARVE (Article 17) 41 500
(e) testing of distinctness, homogeneity and variable
stability carried out by other bodies (Article 17)
(f) grant of plant breeders' rights (Article 20) 17 500
(g) maintenance of plant breeders' rights (Article 23):
first year 8 000
second year 20 000
third year 35 000
fourth year 50 000
fifth and following years 70 000
(h) registration of transfer of plant breeders' rights
(Article 24) 8 000
(i) registration of a license contract (Article 25) 7 500
(j) other alterations or entries made in the Register 1 500
(2) The amount of the fee provided for in subparagraph (c) of the foregoing paragraph shall be
refunded if the opposition filed is judged valid.IP/N/1/PRT/P/1
Page 35
(3) The amount of the fee provided for in subparagraphs (d) and (c) of paragraph (1) shall be set
by CENARVE according to the complexity and cost of the tests.
(4) the value of each point is 1.50 escudos.
__________