ÐÐÐÐÐÐÐÐ
Number 41of1998
ÐÐÐÐÐÐÐÐ
PLANT VARIETIES (PROPRIETARY RIGHTS)
(AMENDMENT) ACT, 1998
ÐÐÐÐÐÐÐÐ
ARRANGEMENT OF SECTIONS
Section
1. Interpretation.
2. Amendment of section 1 of Principal Act.3. Amendment of section 2 of Principal Act.4. Amendment of section 3 of Principal Act.5. Amendment of section 4 of Principal Act.6. Amendment of section 5 of Principal Act.7. Amendment of section 6 of Principal Act.8. Amendment of section 7 of Principal Act.9. Amendment of section 8 of Principal Act.
10. Amendment of section 11 of Principal Act.11. Amendment of section 12 of Principal Act.12. Amendment of section 23 of Principal Act.13. Amendment of section 25 of Principal Act.14. Amendment of First Schedule to Principal Act.15. Application for plant breeders' rights.16. Limitation of protection.17. Authorisation of holder.18. Authorisation required for certain acts, etc.19. Authorisation not required for certain acts, etc.2[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
Section
20. Information notice.
21. Action for infringement of plant breeders' rights.22. Transitional provisions.23. Repeals and miscellaneous amendments.24. Short title, collective citation, construction and com-
mencement.
SCHEDULE
ÐÐÐÐÐÐÐÐ
Act Referred to
Plant Varieties (Proprietary Rights) Act, 1980 1980, No. 24ÐÐÐÐÐÐÐÐ
Number 41of1998
ÐÐÐÐÐÐÐÐ
PLANT VARIETIES (PROPRIETARY RIGHTS)
(AMENDMENT) ACT, 1998
ÐÐÐÐÐÐÐÐ
AN ACT TO AMEND AND EXTEND THE PLANT VARIETIES
(PROPRIETARY RIGHTS) ACT, 1980, AND TO PROVIDEFOR RELATED MATTERS. [16 th November, 1998]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:1.Ð(1) In this Act, except where the context otherwise requiresÐ
``the Acts'' means the Principal Act and this Act;``authorisation'' has the meaning assigned to it by section 17 ;
``the Convention'' means the International Convention for the Pro-
tection of New Varieties of Plants of December 2, 1961, as revisedat Geneva on November 10, 1972, on October 23, 1978, and onMarch 19, 1991;
``the Council Regulation'' means Council Regulation (EC) No.
2100/94 of 27 July 1994
1on Community plant variety rights;
``essentially derived variety'' has the meaning assigned to it by
section 4 of the Principal Act, (inserted by section 5 );
``holder'' has the meaning assigned to it by section 15 ;
``hybrid variety'' has the meaning assigned to it by section 4 of the
Principal Act, (inserted by section 5 );
``information noticeº has the meaning assigned to it by section 20 ;
``plant breeders' rights'' has the meaning assigned to it by section 4
of the Principal Act, (as amended by section 5 );
``the Principal Act'' means the Plant Varieties (Proprietary Rights)
Act, 1980;
``protected variety'' has the meaning assigned to it by section 15 ;
1OJ No. L227/1, 1.9.94.
3Interpretation.S.1
Amendment of
section 1 ofPrincipal Act.
4[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
``unauthorised harvest material'' has the meaning assigned to it by
section 18 ;
``the Union'' means the International Union for the Protection of
New Varieties of Plants founded by the Convention;
``variety of recent creation'' has the meaning assigned to it by section
15;
``variety which is not clearly distinguishable'' has the meaning
assigned to it by section 4 of the Principal Act, (inserted by section
5).
(2) In this ActÐ
(a) a reference to a section or a Schedule is a reference to a
section of, or a Schedule to, this Act unless it is indicatedthat reference to some other enactment is intended,
(b) a reference to a subsection or a paragraph is a reference to
the subsection or paragraph of the provision in which thereference occurs unless it is indicated that reference tosome other provision is intended,
(c) a reference to any enactment is a reference to that enact-
ment as amended, extended or adapted by or under anysubsequent enactment.
(3) In this Act a reference to the Council Regulation shall be con-
strued as a reference to the Council Regulation as amended, adaptedor extended.
2.ÐSection 1 of the Principal Act is hereby amended byÐ
(a) the substitution in subsection (1) of the following definition
for the definition of ``variety'':
```variety' means a plant grouping within a single botan-
ical taxon of the lowest known rank, which grouping,irrespective of whether or not the conditions for the grantof a plant breeder's right are fully met, may beÐ
(a) defined by the expression of the characteristics
resulting from a given genotype or combinationof genotypes,
(b) distinguished from any other plant grouping by
the expression of at least one of those character-istics, and
(c) considered as a unit in relation to the suitability
of the plant grouping concerned remainingunchanged following the propagation;'',
(b) the deletion in subsection (1) of the definitions of ``authoris-
ation'', ``the Convention'', ``Convention country'', and``holder'',
(c) the insertion of the following definition in subsection (1):
```Contracting Party' means a state or an intergovern-
mental organisation which is a party to the Conventionor in respect of which a declaration under section 2 ofthis Act has been made;'',
and[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
(d) the substitution in subsection (2) of the following paragraph
for paragraphs ( c) and ( d):
``(c) whole plants or parts of plants for planting,''.
3.ÐSection 2 of the Principal Act is hereby amended byÐ
(a) the substitution in subsection (1) Ð
(i) of ``for the protection of intellectual property or any
other relevant international co-operation or agree-ment for the protection of intellectual property'' for``for the protection of plant varieties and plantbreeders' rights'', and
(ii) of ``Contracting Party'' for ``convention country'' in
each place where it occurs,
and
(b) the substitution in subsection (2) of ``Contracting Party'' for
``convention country'',
and the said subsections (1) and (2), as so amended, are set out in
the Table to this section.
TABLE
(1) For the purposes of enabling any international convention or agreement
for the protection of intellectual property or any other relevant international co-operation or agreement for the protection of intellectual property to which theState is a party to be carried into effect, the Government may by order declareone or more foreign countries, which foreign country, or each of which foreigncountries, shall be one whose government or any of whose departments of stateis a party to the convention or agreement, to be a Contracting Party for thepurposes of this Act, and for so long as the order remains in force any foreigncountry which is one specified in the declaration contained therein shall be aContracting Party for the purposes of this Act.
(2) An order under this section may provide that the declaration contained
therein shall extend to any territory for the foreign relations of which the govern-ment of a foreign country specified in such declaration considers itself respon-sible, and in case an order under this section so provides then for so long as theorder is in force as regards that foreign country the territory to which the declar-ation is so extended shall for the purposes of this Act be regarded as being aContracting Party.
4.ÐSection 3 of the Principal Act is hereby amended in subsection
(12) by the insertion of the following paragraph after paragraph ( c):
``(d) authorise the Controller to make arrangements for the
supervision of, the acquisition of or access to the findingsof tests, trials or examinations in relation to plant breed-ers' rights carried out by an applicant on the premises ofthat applicant or, subject to the consent of the Controller,any other premises,''.
5S.2
Amendment of
section 2 ofPrincipal Act.
Amendment of
section 3 ofPrincipal Act.Amendment of
section 4 ofPrincipal Act.
6[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
5.ÐThe Principal Act is hereby amended by the substitution of
the following section for section 4:
``Plant breeders'4.Ð(1) In this Act `plant breeders' rights'rights.means all proprietary rights in relation to anyvariety of any plant genus or species which hasbeen independently bred or discovered anddeveloped.
(2) Plant breeders' rights which apply to a pro-
tected variety shall also apply toÐ
(a) a variety which is essentially derived
from that protected variety, wherethat protected variety is not itself anessentially derived variety,
(b) a variety which, having regard to the
First Schedule to this Act (asamended by section 14 of the Plant
Varieties (Proprietary Rights)(Amendment) Act, 1998 ) is not clearly
distinguishable from that protectedvariety, and
(c) a hybrid variety.
(3) Subsection (2) shall not apply to an essen-
tially derived variety which was known to existbefore the coming into operation of this Act.
(4) In this ActÐ
`essentially derived variety' means a variety that
is essentially derived from another variety ifÐ
(a) the essentially derived variety is pre-
dominantly derived from that othervariety (in this Act referred to as the`initial variety') or from a variety thatis itself predominantly derived fromthe initial variety, while retaining theexpression of the essential character-istics that result from the genotype orcombination of genotypes of theinitial variety,
(b) it is clearly distinguishable from the
initial variety,
(c) it conforms, except for the differences
which result from the act of deri-vation, to the initial variety in theexpression of the essential character-istics that result from the genotype orcombination of genotypes of theinitial variety, and
(d) it may be obtained, without prejudice to
the generality of the foregoing, by theselection of a natural or inducedmutant, or of a somaclonal variant,the selection of a variant individual[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
from plants of the initial variety,
backcrossing, or transformation bygenetic engineering;
`hybrid variety' means a variety in respect of
which the production of such variety requires therepeated use of the protected variety;
`variety which is not clearly distinguishable'
means a variety which is not clearly distinguish-able from the protected variety.''.
6.ÐSection 5 of the Principal Act is hereby amended in subsection
(1) byÐ
(a) the insertion in paragraph ( a) after ``or discovered'' of ``and
developed'',
(b) the insertion in paragraph ( a) after ``duly assigned'' of ``or
a person who bred or discovered and developed it in thecourse of his or her employment,'',
(c) the deletion in paragraph ( c) of ``an Irish citizen or'' and
``either the State or'',
(d) the substitution in paragraph ( c) of ``member of the Union''
for ``party to the Convention'',
(e) the insertion in paragraph ( c) after ``section 2 of this Act
applies'' of ``and a member of the Union means a stateparty to the International Convention for the Protectionof New Varieties of Plants of 1961, 1972 or 1978 or aContracting Party'', and
(f) the insertion of the following subsection after subsection (3):
``(4) Where an application for a grant of plant
breeders' rights is made by a person who bred or dis-covered and developed a variety in the course of his orher employment, the Controller, in determining suchapplication, shall have regard toÐ
(a) an agreement, if any, between that person and
the employer concerning the entitlement toapply for a grant of plant breeders' rights, and
(b) any statutory provisions concerning the relation-
ship between employer and employee for thetime being in force inÐ
(i) the country or territory in which such
employee is wholly or mainly employed, or
(ii) where the identity of such country or terri-
tory cannot be determined, the country orterritory in which the business of suchemployer is situate.''.
7S.5
Amendment of
section 5 ofPrincipal Act.Amendment of
section 6 ofPrincipal Act.
Amendment of
section 7 ofPrincipal Act.
8[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
7.Ð(1) Section 6 of the Principal Act is hereby amended byÐ
(a) the substitution of the following subsection for subsection
(1):
``(1) Where two or more applications are made for
plant breeders' rights for the same variety, the Controller,in considering the order of precedence of such appli-cations, shall have regard to the date of receipt of theapplications concerned and, subject to subsection (2) ofthis section, shall consider the application, having regardto the date of receipt, which was the first such applicationreceived by the Controller.'',
and
(b) the substitution of the following subsection for subsection
(2):
``(2) Where the applications referred to in subsection
(1) of this section were received by the Controller on thesame date and the time of such receipt on such date can-not be established, the applications concerned shall rankequally in order of precedence.''.
(2) Section 6 of the Principal Act is hereby amended in subsection
(3) byÐ
(a) the substitution in paragraph ( a) of ``Contracting Party'' for
``convention country'',
(b) the substitution in paragraph ( e) of ``may be received'' for
``is received'',
(c) the insertion in paragraph ( e) after ``the documents'' of
``samples or other evidence'',
(d) the substitution of ``as aforesaid.'' for ``as aforesaid, and,
accordingly,'', and
(e) the deletion of all words from ``the fact that another appli-
cant'' to the end of the subsection.
(3) Section 6 of the Principal Act is hereby amended byÐ
(a) the substitution in subsection (4) of ``the period of two
years'' for ``the period of four years'', and
(b) the substitution in subsection (5) of ``the period of three
years'' for ``the period of five years''.
8.ÐThe Principal Act is hereby amended by the substitution of
the following section for section 7:
``Protection of7.Ð(1) The holder shall, following the grant ofapplicants whileplant breeders' rights, be entitled to compen- application pending.
sation from any person who has in the relevantperiod performed any act which such personwould be prohibited from performing after thegrant of plant breeders' rights.[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
(2) In this section the `relevant period' means
the period beginning on the day on which theapplication for the grant of plant breeders' rightsis published in the Journal and ending on the dateof the grant of such plant breeders' rights.''.
9.ÐSection 8 of the Principal Act is hereby amended byÐ
(a) the substitution in subsection (1) of ``satisfies him that, in
relation to the public interest,'' for ``satisfies him that'',
(b) the deletion in subsection (1) of ``referred to in section
4(5)( d) of this Act,'', and
(c) the deletion in subsection (2) of ``(the name of which variety
stands for the time being entered in the register)'' and``by a holder'',
and the said subsections (1) and (2), as so amended, are set out in
the Table to this section.
TABLE
(1) Subject to the provisions of this section, if any person applies to the Con-
troller and satisfies him that, in relation to the public interest, a holder hasunreasonably refused to grant to the applicant an authorisation or, in granting oroffering to grant such an authorisation, has imposed or put forward terms whichare either unreasonable or contrary to the public interest, the Controller shall, ifhe is satisfied that the applicant is in a position, and intends, to exercise rights ina competent manner which would be conferred by such an authorisation, grantto the person in the form of a licence any such rights as respects the relevantplant variety as might have been granted by the holder.
(2) Subject to the provisions of this section, if any person satisfies him that it
is in the public interest that a particular plant variety specified by the person hasbeen distributed in a manner which is not in the public interest or that such aplant variety should be widely distributed, or that it is otherwise in the publicinterest to do so, the Controller shall grant to the person in the form of a licenceany rights as respects that variety as may be granted by the relevant holder.
10.ÐSection 11 of the Principal Act is hereby amended byÐ
(a) the substitution of the following subsection for subsection (1):
``(1) The Controller mayÐ
(a) declare the grant of plant breeders' rights null
and void where the Controller is satisfied thatÐ
(i) the protected variety concerned did not, at
the time of the grant, comply with the con-ditions specified in either or both paragraph1 or paragraph 4 of the First Schedule tothis Act (as amended by section 14 of the
Plant Varieties (Proprietary Rights)(Amendment) Act, 1998 ),
(ii) the protected variety concerned did not, at
the time of the grant, comply with the con-ditions specified in either or both paragraph2 or paragraph 3 of the First Schedule tothis Act (as amended by section 14 of the
Plant Varieties (Proprietary Rights)
9S.8
Amendment of
section 8 ofPrincipal Act.
Amendment of
section 11 ofPrincipal Act.S.10
Amendment of
section 12 ofPrincipal Act.
Amendment of
section 23 ofPrincipal Act.
10[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
(Amendment) Act, 1998 ) where such grant
was obtained on the basis of information ordocuments or both furnished by the appli-cant, and
(iii) the plant breeders' rights were granted to a
holder who was not entitled to such grant,
but no such declaration shall be made under
subparagraph (iii) of this paragraph if the plantbreeders' rights concerned have been trans-ferred to the holder by the person properlyentitled to such grant,
(b) cancel plant breeders' rights in relation to a pro-
tected variety if the Controller is satisfied thatin relation to such protected variety concernedthe conditions specified in either or both para-graphs 2 and 3 of the First Schedule to this Act(as amended by section 14 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 )
are not being complied with,
(c) cancel the plant breeders' rights in respect of a
protected variety if the holder fails, refuses orneglects to pay such fees as may be required tomaintain the grant of the plant breeders' rightsconcerned, or
(d) cancel plant breeders' rights of a protected var-
iety if the holder does not propose another suit-able denomination where the denomination ofthe protected variety concerned is cancelled.'',
(b) the substitution in subsection (2) of ``cancel'' for ``revoke''
and of ``cancellation'' for ``revocation'' in each placewhere it occurs, and
(c) the substitution in subsection (3) of ``cancels'' for ``revokes''
and of ``cancellation'' for ``revocation''.
11.ÐSection 12 of the Principal Act is hereby amended in subsec-
tion (5) by the substitution of the following paragraph for paragraph(b):
``(b) For the purposes of this section the Minister may prescribe
classes and species to which varieties belong.''.
12.ÐSection 23 of the Principal Act is hereby amended byÐ
(a) the substitution in subsections (1), (2) and (3) of ``£1,500''
for ``£500'' in each place where it occurs, and
(b) the insertion after subsection (1) of the following
subsection:
``(1A) If a person falsely represents that he or she is
entitled to exercise any Community plant variety rightsgranted under the Council Regulation, in relation to anyplant variety and in respect of which Community plantvariety rights have or have not been granted under the[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
Council Regulation, and that person knows that the rep-
resentation is false or makes the representation reck-lessly, he or she shall be guilty of an offence and shall beliable on summary conviction to a fine not exceeding£1,500 or, at the discretion of the court, to imprisonmentfor a term not exceeding three months or to both suchfine and such imprisonment.''.
13.ÐSection 25 of the Principal Act is hereby amended in subsec-
tion (1) by the insertion of the following paragraphs after paragraph(d):
``(e) such fees in respect of any test or examination concerning
genetically modified plant varieties,
(f) such fees in respect of the supervision of any test or examin-
ation where such test or examination is carried out on thepremises of the breeder concerned or other premises inagreement with the Minister,
(g) such administrative costs as may be incurred by the Control-
ler concerning applications under the Council Regu-lation, and
(h) such other fees,''.
14.ÐThe First Schedule to the Principal Act is hereby amended
byÐ
(a) the substitution of the following paragraph for paragraph 1:
``Distinctness.1. (1) The plant variety concernedÐ
(a) is not a matter of common know-
ledge at the time that applicationfor plant breeders' rights is made,and
(b) is clearly distinguishable from any
other plant variety the existence ofwhich is a matter of common know-ledge at the time such application ismade,
and the distinguishing characteristic of that
plant variety is recognisable and is capable ofdescription and recognition.
(2) For the purposes of this paragraph,
common knowledge of a plant variety shallbe established when an application is madeÐ
(a) for the grant of plant breeder's
rights, or
(b) to enter the plant variety concerned
in an official register of plant vari-eties in any country or territorywhich is a Contracting Party.'',
(b) the substitution of the following paragraph for paragraph 2:
11S.12
Amendment of
section 25 ofPrincipal Act.
Amendment of
First Schedule toPrincipal Act.S.14
Application for
plant breeders'rights.
12[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
``Uniformity.2. The plant variety concerned is sufficiently
uniform in respect of the characteristic concernednotwithstanding any variation arising from thepropagation of such plant variety.'',
(c) the substitution of the following paragraph for paragraph 3:
``Stability.3. The characteristic of the plant variety con-
cerned does not alterÐ
(a) after repeated propagation, or
(b) where there is a particular cycle of
propagation, at the end of each suchcycle.'',
and
(d) the substitution of the following paragraph for paragraph 4:
``Novelty.4. Propagating or harvested material of the
plant variety concerned, has not, on the date onwhich an application for plant breeders' rights ismade, been sold or otherwise disposed of toothers, by or with the consent of the applicant, forthe purposes of exploitation of such plant varietyeitherÐ
(a) in the State for a period that is greater
than one year before the date of anapplication for plant breeders' rights,or
(b) in a territory other than that of the Con-
tracting Party for a period that isgreater than four years, or in the caseof trees or vines, for a period that isgreater than six years before thatdate.''.
15.Ð(1) A person may, subject to the provisions of the Acts, apply
to the Controller for a grant of plant breeders' rights in relation to avariety of any plant genus or species and such application shall beaccompanied by the prescribed fee.
(2) Where, following an application under subsection (1), the Con-
troller makes a grant of plant breeders' rights in relation to a variety(in the Acts referred to as the ``protected variety''), the Controllershall as soon as may beÐ
(a) issue under the seal of the Controller a certificate in the
prescribed form specifying the name of the variety ofplant genus or species concerned,
(b) publish a notice of the granting of the certificate referred to
inparagraph (a) in the Journal, and
(c) enter the name of the variety of plant genus or species con-
cerned in the register,
and the person to whom such plant breeders' rights are granted shall
be known as a ``holder''.[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
(3) A certificate issued under subsection (2) of this section shall,
unless the contrary is shownÐ
(a) be deemed to be such certificate, and
(b) in any legal proceedings be evidence without further proof
of the matters stated therein.
(4) The minimum period in respect of which plant breeders' rights
may be exercised by a holder shallÐ
(a) in respect of trees, vines and potatoes, be not less than 30
years, and
(b) in respect of all other varieties be not less than 25 years,
and each such period shall commence on the date of the grant of the
plant breeders' rights concerned under this section.
(5) Subject to subsection (10) , the maximum period for which plant
breeders' rights may be exercised by a holder shallÐ
(a) in respect of trees, vines and potatoes, be 35 years, and
(b) in respect of all other varieties, be 30 years.
(6) A statement in the register that a species of plant or each of
the plants of a specified group of plants is a fruit tree, forest tree,ornamental tree or grape vine shall, in relation to the species of plantconcerned, be evidence without further proof of the matters statedtherein unless the contrary is shown.
(7) The Minister may make regulations for the purpose of giving
effect to this section.
(8) Where, on the date of the coming into operation of this Act,
a variety (in this Act referred to as a ``variety of recent creation'')exists but an application for plant breeders' rights for the varietyconcerned has not been made by that date, an application for a grantof plant breeders' rights for the variety concerned may be madewithin the 12 months following the date of the coming into operationof this Act but such plant breeders' rights shall not be granted inrespect of the variety concerned if sale or other disposal of that var-iety has, with the consent of the applicant, taken place not less thanÐ
(a) 4 years before the coming into operation of this Act, or
(b) 6 years before the coming into operation of this Act if the
variety concerned is a tree or vine.
(9) A holder may assign any plant breeders' rights granted to him
or her under the Acts.
(10) The Controller, when making a grant of plant breeders'
rights, shall not include a maximum period for the exercise of suchplant breeders' rights unless the plant variety concerned belongs toa plant genus or species in respect of which an order under subsection
(11) has been made.
(11) The Minister may by order specify the maximum period for
the exercise of plant breeders' rights of a plant genus or species.
13S.15Limitation of
protection.
Authorisation of
holder.
Authorisation
required for certainacts, etc.
14[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
16.Ð(1) Plant breeders' rights shall not apply to any act referred
to in section 18 carried out in relation to any materialÐ
(a) of the protected variety concerned which has been sold or
otherwise offered for sale in the State by the holder orwith the consent of the holder, or
(b) of an essentially derived variety which has been sold or
otherwise offered for sale in the State by the holder orwith the consent of the holder, or
(c) derived from the material specified in paragraph (a) or(b).
(2)Subsection (1) shall not apply to an act which involvesÐ
(a) the further propagation of the protected variety concerned,
or
(b) the export of any material which enables the propagation of
the protected variety into a country which does not pro-tect varieties of the plant genus or species to which theprotected variety concerned belongs, unless such exportis for the purpose of final consumption.
(3) In this section ``material'' includesÐ
(a) any propagating material of a variety, and
(b) any harvested material of a variety, including entire plants
and parts of plants.
17.Ð(1) A holder may grant an authorisation to another person
to permit such other person to carry out any or all of the acts speci-fied in section 18 on a protected variety for which authorisation is
required and may include in such authorisation any conditions, limi-tations or restrictions.
(2) A reference to an authorisation under this section is an author-
isation in writing which has been obtained from the holder by theperson referred to in subsection (1) prior to the carrying out of any
of the acts for which authorisation is required and ``authorisation''shall be construed accordingly.
18.Ð(1) A person shall notÐ
(a) produce, reproduce or cause the multiplication of any pro-
pagating material of a protected variety,
(b) clean, process or otherwise condition any propagating
material of a protected variety for the purpose ofpropagation,
(c) sell or offer for sale, export or import any propagating
material of a protected variety, or
(d) keep a supply of any propagating material of a protected
variety for any of the purposes specified in paragraph (a),
(b)or(c),
unless that person has obtained the authorisation of the holder.[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
(2) A person shall notÐ
(a) produce, reproduce or cause the multiplication of unauthor-
ised harvest material of a protected variety,
(b) clean, process or otherwise condition unauthorised harvest
material of a protected variety for the purpose ofpropagation,
(c) sell or offer for sale, export or import unauthorised harvest
material of the protected variety, or
(d) keep a supply of unauthorised harvest material of the pro-
tected variety for any of the purposes specified in para-
graph (a), (b) or(c),
unless that person has obtained the authorisation of the holder in
relation to the protected variety concerned or the holder has had areasonable opportunity to exercise his or her plant breeder's rightsin relation to the unauthorised use of such propagating material.
(3) Where, in accordance with section 4 (2) of the Principal Act
(inserted by section 5 ), plant breeders' rights apply to a variety speci-
fied in either paragraph ( a), (b)o r( c) of that section, a person shall
notÐ
(a) produce, reproduce or multiply the propagating material or
unauthorised harvest material,
(b) clean, process or otherwise condition the propagating
material or unauthorised harvest material,
(c) sell or offer for sale, export or import the propagating
material or unauthorised harvest material, or
(d) keep a supply of the propagating material or unauthorised
harvest material for any of the purposes specified in para-
graph (a), (b) or(c),
of that variety unless the holder has given an authorisation in respect
of the matters so specified.
(4) In this Act ``unauthorised harvest material'' means the
material harvested from an unauthorised use of the propagatingmaterial of a protected variety.
19.Ð(1) An authorisation, in relation to a protected variety, shall
not be required forÐ
(a) any act done for private and non-commercial purposes,
(b) any act done for the purpose of breeding experimentation,
(c) any act done for the purpose of breeding another variety
other than a variety specified in section 4 (2) of the Prin-cipal Act (inserted by section 5 ),
(d) the use by a farmer for propagating purposes of the product
of the harvest which that farmer has obtained from pro-pagating material of the protected variety on lands ownedor occupied by the farmer (in this section referred to as``farm saved seed'') and the protected variety concerned
15S.18
Authorisation not
required for certainacts, etc.S.19
Information notice.
16[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
is a variety of plant genus or species specified in an order
under subsection (2) and such use is referred to in this
Act as the ``farm saved seed exemption''.
(2) The Minister may by order specify a variety of any plant genus
or species to which the farm saved seed exemption is to apply andthe provisions of section 26 (3) of the Principal Act shall apply tothe making of such order.
(3) The Minister may by order amend or revoke an order made
under subsection (2).
(4) Where a farmer uses farm saved seed of a variety specified in
an order under subsection (2), the farmer shall be liable to pay the
holder remuneration which shall be sensibly lower, within the mean-ing of Article 14.3 of the Council Regulation, than the amountcharged for the production of propagating material of the protectedvariety concerned.
(5) The obligation to pay the remuneration referred to in subsec-
tion (4) shall not apply to a farmer who is considered, under Article
14.3 of the Council Regulation, to be a small farmer.
(6) The Minister may make regulations generally for the purpose
of giving effect to the farm saved seed exemption and such regu-lations may contain such incidental, supplementary and consequen-tial provisions as appear to the Minister to be necessary or expedientfor the purpose of the regulations.
20.Ð(1) WhereÐ
(a) a holder has reasonable grounds for believing that harvested
material of a protected variety is being offered for sale,and
(b) an authorisation has not been granted for the carrying out
ofÐ
(i) any act specified in section 18(1) in respect of the pro-
pagating material of the protected variety, or
(ii) any act specified in section 18(2) in respect of the
unauthorised harvest material of the protectedvariety,
the holder may request a person who sells or offers for sale such
harvested material to furnish information, in accordance with thissection, in respect of such harvested material.
(2) A holder may serve a notice (in this Act referred to as an
ªinformation noticeº) on a person referred to in subsection (1) which
shall be in the prescribed form and, without prejudice to the gener-ality of the foregoing, shallÐ
(a) state the denomination and species of the plant variety so
offered for sale and the name and address of the holder,
(b) specify the harvested material of the plant variety so offered
for sale and to which the information notice relates,
(c) require the person to whom it is addressed to provideÐ[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
(i) the name and address of the producer, the supplier
and any prior owners of the harvested material ofthe plant variety so offered for sale, and
(ii) information concerning the quantity of the harvested
material of the plant variety so offered for sale thatwas produced, ordered and delivered to that person,
and
(d) require the person to whom it is addressed to furnish the
information to the holder within 21 days of the service of
such information notice.
(3) Where an information notice has been served in accordance
with this section and the person on whom such information noticehas been served has not furnished or has failed to adequately furnishthe information so requested, for the purposes of proceedings for aninfringement of plant breeders' rights concerning the offering for saleof the harvested material of the plant variety specified in the infor-mation notice, it shall be presumed thatÐ
(a) the harvested material of the plant variety so offered for
sale was obtained by means of an unauthorised use of thepropagating material of the protected variety, and
(b) the holder did not have a reasonable opportunity before the
harvested material was obtained to exercise plant breed-ers' rights in relation to the unauthorised use of the pro-pagating material,
unless the contrary is proved or there are reasonable grounds for not
supplying or for failing to adequately supply the information.
(4) A holder shall not use any information furnished pursuant to
an information notice for any purpose other thanÐ
(a) establishing that there has been an infringement of plant
breeders' rights of the protected variety referred to in theinformation notice, or
(b) use in proceedings for infringement of plant breeders' rights
of the protected variety referred to in the informationnotice.
(5) An information notice shall be addressed to the person con-
cerned and served on or given to such person in one of the followingwaysÐ
(a) by addressing it to the person by name and delivering it to
that person,
(b) by leaving it at the address at which the person ordinarily
resides or carries on any trade or business or, in a case inwhich an address for service has been furnished, at thataddress, or
(c) by sending it by post in a prepaid registered letter addressed
to the person at the address at which that person ordi-narily resides or carries on any trade or business.
17S.20Action for
infringement ofplant breeders'rights.
Transitional
provisions.
Repeals and
miscellaneousamendments.
18[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
21.Ð(1) An infringement of plant breeders' rights shall be action-
able at the suit of the holder and in any proceedings for suchinfringement all such relief, by way of damages, injunction, accountor otherwise, as is available in any corresponding proceedings inrespect of any other proprietary rights shall be available.
(2) Where, in civil proceedings for an infringement of plant breed-
ers' rights concerning an allegation of the offering for sale of har-vested material of a protected variety, an information notice hasbeen served in accordance with section 20 and the person on whom
it was served did not furnish the information or failed to adequatelyfurnish the information so requested within the 21 day period sospecified, it shall be presumed that the provisions of section 20(3)(a)
or20(3)(b) or both shall apply to such proceedings unless, in accord-
ance with that section, the contrary is proved or the court is satisfiedthat there were reasonable grounds for failing to supply oradequately supplying such information.
22.Ð(1) Where, before the commencement of this Act, an appli-
cation has been made to the Controller under section 4 of the Princi-pal Act and a certificate under that section hasÐ
(a) not been issued in respect of that application, or
(b) been issued under that section,
thenÐ
(i) in the case of the application, it shall be deemed to
be an application under section 15 , and
(ii) in the case of the certificate, it shall, for the remainder
of the period of operation, be deemed to have beengranted under section 15 .
(2) Where, before the commencement of this Act, an infringement
of plant breeders' rights occurred and proceedings for such infringe-ment had been issued under section 4(5) of the Principal Act, suchproceedings shall be continued as if they had been issued under thissection.
(3) Where, before the commencement of this Act, an infringement
of plant breeders' rights occurred and proceedings for such infringe-ment had not been issued under section 4(5) of the Principal Act,such proceedings shall, if issued in respect of such infringement, bedeemed to be issued under this section.
(4) Notwithstanding any other provision of this Act, regulations
made under the Principal Act shall continue in operation and shallbe deemed to have been made under this Act and to be capable ofamendment or revocation accordingly.
23.Ð(1) Sections 1 (4), 6 (3) ( c), 12 (3) ( b) (ii) and 25 (1) ( e)o f
the Principal Act are hereby repealed.
(2) Each section of or Schedule to the Principal Act specified in
column (2) of the Schedule is hereby amended in the manner speci-
fied in column (3) of the Schedule opposite the mention of that
section or that Schedule in column (2).[1998.] Plant Varieties (Proprietary Rights) [No. 41.]
(Amendment) Act, 1998.
24.Ð(1) This Act may be cited as the Plant Varieties (Proprietary
Rights) (Amendment) Act, 1998.
(2) The Principal Act and this Act may be cited together as the
Plant Varieties (Proprietary Rights) Acts, 1980 and 1998, and shallbe construed together as one Act.
(3) This Act shall come into operation on such day as the Minister
may by order appoint.
19Short title,
collective citation,construction andcommencement.Section 23.
20[No. 41.]Plant Varieties (Proprietary Rights) [1998.]
(Amendment) Act, 1998.
SCHEDULE
Ref. No. Section of Amendment of Principal Act
Principal Act
(1) (2) (3)
1 Section 6 In subsections (3) ( b) and (5), ``section 15 of the Plant
Varieties (Proprietary Rights) (Amendment) Act,1998,'' is substituted for ``section 4 of this Act''.
2 Section 9 In subsection (2) ``specified in section 15 of the Plant
Varieties (Proprietary Rights) (Amendment) Act,1998 '' is substituted for ``prescribed under section 4
(10) of this Act''.
3 Section 14 In subsection (1) the deletion of ``4 (8), 4 (9),'' and
``paragraph'' is substituted for ``Article''.
4 Section 15 In subsection (1) the deletion of ``4'' and the insertion
after ``of this Act'' of ``and section 15 of the Plant
Varieties (Proprietary Rights) (Amendment) Act,1998 ,''.
5 Section 15 In subsection (1) ( a)` `section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``section 4 of this Act''.
6 Section 15 In subsection (1) ( c)` `section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``the said section 4,''.
7 Section 15 In subsections (1) ( e) and (1) ( k), ``section 15 of the
Plant Varieties (Proprietary Rights) (Amendment)Act, 1998 ,'' is substituted for ``section 4 of this Act''.
8 Section 15 In subsection (1) ( f) the deletion of ``4'' and the inser-
tion after ``21 or 22'' of ``and section 15 of the Plant
Varieties (Proprietary Rights) (Amendment) Act,1998 ,''.
9 Section 16 In subsection (1) the deletion of ``except such as falls
within any genus or species which is excluded fromthis section by regulations made under this sectionby the Minister''.
10 Section 16 In subsection (3) `` section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``section 4 of this Act''.
11 Section 19 In subsection (1) ( a), the deletion of ``4,º and the inser-
tion after ``of this Act'' of ``and section 15 of the
Plant Varieties (Proprietary Rights) (Amendment)Act, 1998 ,''.
12 Section 19 In subsection (1) ( b)` `section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``section 4'' and the insertion after ``or''of ``section''.
13 Section 23 In subsection (3) the insertion after ªsection 4 of this
Actº of ªor section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 º.
14 Section 24 In subsection (2) `` section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``section 4 of this Act''.
15 Section 25 In subsection (1) ( c)` `section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 ,'' is sub-
stituted for ``section 4 (3) of this Act''.
16 First Schedule In paragraph 6 `` section 15 of the Plant Varieties
(Proprietary Rights) (Amendment) Act, 1998 '' is sub-
stituted for ``section 4 of this Act''.
17 Second Schedule In paragraph 1 the deletion of ``4'' and the insertion
after ``of this Act'' of ``and section 15 of the Plant
Varieties (Proprietary Rights) (Amendment) Act,1998 ,''.
18 Second Schedule In paragraph 2 ``paragraph'' is substituted for
``Article''.