Plant Varieties (Proprietary Rights) Act , 1980

1 Interpretation.

1.—(1) In this Act—

“The Appeal Committee” has the meaning assigned to it by section 14 (3) of this Act;

“authorisation” means an authorisation given in pursuance of section 4 (5) of this Act;

“the Convention” means the International Convention for the Protection of New Varieties of Plants done at Paris on the 2nd day of December, 1961, as revised at Geneva on the 10th day of November, 1972, and the 23rd day of October, 1978, respectively;

“the Controller” means the Controller of Plant Breeders' Rights;

“Convention country” means a country or territory which is either a party to the Convention or one to which a declaration contained in an order made by the Minister under section 2 of this Act relates and which is for the time being in force;

“holder” means a holder of plant breeders' rights;

“the Journal” has the meaning assigned to it by section 19 of this Act;

“the Minister” means the Minister for Agriculture;

“prescribed” means prescribed by regulations made by the Minister under this Act;

“the register” has the meaning assigned to it by section 20 of this Act;

“sell” includes offer or expose for sale and invite to buy and kindred words shall be construed accordingly;

“variety” in relation to plants includes any clone, line, hybrid or genetic variant of any plant.

(2) References in this Act to reproductive material shall be construed as including references to—

(a) seeds for sowing,

(b) seed potatoes and other vegetative propagating material,

(c) ornamental plants and parts of such plants where used commercially as propagating material in the production of ornamental plants and cut flowers,

(d) whole plants which are not ornamental plants, as well as parts of such plants, where such whole plants or parts may be used as reproductive material.

(3) References in this Act to an applicant for plant breeders' rights, or to a holder, include, where the context allows, references to his predecessors in title or his successors in title, and in case two or more persons are co-proprietors of plant breeders' rights, such references shall in relation to those rights, be construed as including a reference to each of those persons.

(4) Where an ornamental plant or a part of such a plant is sold in the course of a business for use by the buyer for purposes other than propagation and such plant or part is used commercially by the buyer as propagating material, no provision of this Act shall be construed as not applying in relation to such buyer by reason only of the fact that the plant or part was so sold.

2 Conventions, arrangements etc.

2.—(1) For the purposes of enabling any international convention or agreement for the protection of plant varieties and plant breeders' rights to which the State is a party to be carried into effect, the Government may by order declare one or more foreign countries, which foreign country, or each of which foreign countries, shall be one whose government or any of whose departments of state is a party to the convention or agreement, to be a convention country for the purposes of this Act, and for so long as the order remains in force any foreign country which is one specified in the declaration contained therein shall be a convention country 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 government of a foreign country specified in such declaration considers itself responsible, and in case an order under this section so provides then for so long as the order is in force as regards that foreign country the territory to which the declaration is so extended shall for the purposes of this Act be regarded as being a convention country.

(3) (a) Where by any agreement to which the Minister is a party an arrangement (in this section referred to as a “reciprocal arrangement”) is made with a country or territory, other than the State, to enable persons who have a place of business (being a business described in section 5 (1) (c) of this Act) in the State to apply under the law of that country or territory, being a law whose provisions correspond to or are analogous to those of this Act, on an equal footing with persons who are resident, or have a place of such business, in the country or territory, the Minister may by regulations declare such country or territory to be a country or territory to which this section applies.

(b) In case an agreement by virtue of the existence of which the Minister was enabled to make the regulations under thissubsection is terminated or otherwise ceases to be in force, the Minister shall, as soon as may be, revoke the regulations.

(4) The Controller may with the consent of the Minister enter into and carry out any agreement or arrangement with an appropriate authority in a foreign country and relating to the granting and protection of plant breeders' rights or the rights under the law of that country which correspond or are analogous to plant breeders' rights.

(5) An order under this section (including an order under this subsection) may be revoked or amended by a subsequent order made by the Government.

(6) In this section “the appropriate authority in a foreign country” means the person who under the law of a country other than the State has assigned to him functions which either correspond to or are analogous to those assigned to the Controller under this Act.

3 Controller of Plant Breeders' Rights.

3.—(1) There is hereby established an office to be known as the Controller of Plant Breeders' Rights which office shall be a body corporate with perpetual succession and power to sue and be sued in its corporate name.

(2) (a) The Minister shall as occasion requires appoint a person (which person may be an officer of the Minister) to fill the office of Controller and every person appointed under this subsection shall hold office for such term and, subject to paragraph (b) of this subsection, on such conditions as shall be specified by the Minister when making the appointment.

(b) In case the person appointed to fill the office of Controller is a person to whom subsection (9) of this section applies, he shall be paid such remuneration as the Minister, with the consent of the Minister for the Public Service, determines.

(3) The Controller shall be under the general superintendence and direction of the Minister.

(4) A person appointed under this section to be Controller whose term of office expires otherwise than by reason of his being removed from office shall be eligible for reappointment.

(5) The Minister may remove from office the person who for the time being is Controller who has become incapable through ill-health of effectively performing his duties, or who has committed stated misbehaviour or whose removal appears to the Minister to be necessary for the effective performance by the Controller of his functions.

(6) The Controller shall, as soon as may be after the passing of this Act, provide himself with a seal.

(7) The seal of the Controller shall be authenticated by the signature of the Controller or some other person authorised by the Minister to act in that behalf.

(8) Judicial notice shall be taken of the seal of the Controller and every document purporting to be an instrument made by the Controller and to be sealed with the seal (purporting to be authenticated in accordance with subsection (7) of this section) of the Controller shall be received in evidence and be deemed to be such instrument without proof, unless the contrary is shown.

(9) (a) The Minister may, with the consent of the Minister for the Public Service, as soon as may be make and carry out according to its terms a scheme for the granting of a pension, gratuity or other allowance to or in respect of persons to whom this subsection applies, who are required by their conditions of appointment to devote the whole of their working time to the duties of the office of Controller, on their ceasing to hold the office of Controller.

(b) A scheme under this subsection may provide that the termination of the appointment of a person to whom this subsection applies to the office of Controller during his term of office shall not preclude the award to him of a pension, gratuity or other allowance.

(c) The Minister may, with the consent of the Minister for the Public Service, amend a scheme made by him under this subsection.

(d) This subsection applies to any person who is appointed to fill the office of Controller and who, immediately before such appointment, was not an officer of the Minister.

(e) No pension, gratuity or other allowance shall be granted to the Controller nor shall any other arrangement be entered into for the provision of a pension, gratuity or other allowance on his ceasing to hold office, other than in accordance with a scheme submitted and approved of under this section.

(10) Where a decision is made by the Controller under this Act, the decision or order shall come into force—

(a) in case no appeal may be taken under this Act in respect thereof, on the day next following that on which the decision is taken,

(b) in case such an appeal may be but is not so taken, upon the expiration of the period during which such an appeal may be taken,

(c) in case such an appeal is taken and the appeal is withdrawn, on the expiration of the period mentioned in paragraph (b) of this subsection or on the day next following the day on which the appeal is withdrawn, whichever is the later.

(11) The Minister may, with the consent of the Minister for the Public Service, assign to the Controller such of the Minister's officers and servants as he may consider necessary to enable the Controller to perform the functions assigned to him by this Act.

(12) For the purposes of enabling the Controller to perform the functions assigned to him by this Act, the Minister may—

(a) make available to the Controller, subject to such conditions (if any) as the Minister shall specify, the services of persons and the use of land or other facilities which are under his control,

(b) authorise the Controller to avail of the services of persons who are neither officers nor servants of the Minister,

(c) authorise the Controller to make arrangements for the acquisition of or access to the findings of tests, trials or examinations carried out by persons in any country other than the State in relation to plant breeders' rights,

and the fees payable to persons whose services have been availed of as aforesaid or to whom such an authorisation relates shall be such amount as shall be agreed to by the Minister with the approval of the Minister for the Public Service.

(13) For the purpose of performing any function assigned to him by this Act, the Controller may carry out or cause to be carried out in relation to any plant such tests, trials, examinations or inquiries as he shall consider appropriate.

4 Plant breeders' rights.

4.—(1) Proprietary rights to be known, and which in this Act are referred to, as “plant breeders' rights” may, on an application being made to him in that behalf and subject to the provisions of this Act, be granted by the Controller in respect of any variety of a botanical genus or species, or any variety within such genus or species, being a variety which has a particular manner of reproduction or multiplication or a certain end use, and being a genus or species standing for the time being specified in regulations made for the purposes of this section by the Minister.

(2) An application under this section shall be accompanied by the prescribed fee.

(3) In case the Controller allows an application under this section, he shall as soon as may be—

(a) issue under his seal a certificate in the prescribed form in which shall be specified the name of the plant variety to which the application relates, together with its genus and species,

(b) cause to be published in the Journal notice of the granting of the certificate,

(c) enter in the register the name of the plant variety as regards which the application was allowed, together with its genus and species.

(4) Every document purporting to be a certificate issued by the Controller under this section and to be sealed with the seal of the Controller shall in any legal proceedings be deemed to be such certificate and be admissible as evidence of the matters stated therein, until the contrary is shown.

(5) Where plant breeders' rights are granted under this Act, the grant shall, subject to subsection (7) of this section, operate to confer on the holder concerned the exclusive right—

(a) to produce, for the purposes of its being commercially marketed, reproductive material of the plant variety to which the grant relates,

(b) to sell or offer such material for sale or to export or import it,

(c) in case the plant variety is an ornamental plant variety, to propagate the variety in the course of commercially producing ornamental plants or cut flowers,

(d) to authorise any other person to do all or any of the aforesaid things,

and, subject to the provisions of this Act, infringements of plant breeders' rights shall be actionable at the suit of the holder of the rights and in any proceedings for such infringement all such relief, by way of damages, injunction, account or otherwise, as is available in any corresponding proceedings in respect of other proprietary rights shall be available.

(6) Subject to subsection (7) of this section, a holder may, in granting an authorisation, impose any conditions (including limitations or restrictions) which may be imposed by the holder of any other kind of proprietary right, and plant breeders' rights shall be assignable in like manner as are other kinds of proprietary rights.

(7) The permission of a holder shall not be required for the use of the relevant plant variety either as an initial source of variation for the creation of new plant varieties or for the sole purpose of producing a crop for human or animal consumption.

(8) (a) Where on an application being made in that behalf, being either an application to the Controller under this section or an application by or on behalf of a holder, the applicant satisfies the Controller that the holder will not receive equitable financial rewards as a result of the grant being applied for, or has not received such rewards because the grant of such rights does not or will not enable him to control the production or propagation in the State of the relevant plant variety for its fruit or for any other purpose, the Controller may, if he decides to allow the application, direct that the relevant grant shall, in addition to operating in the manner described in subsection (5) of this section, operate to confer on the relevant holder the exclusive right to produce, sell or import such part or parts as may be specified in the direction of any plant of such variety.

(b) Where the Controller gives a direction under this subsection—

(i) there shall be entered in the relevant entry in the register a statement that such a direction has been given as regards the plant variety to which the direction relates and specifying the part or parts of plants specified in the direction,

(ii) subsection (5) (a) of this section shall, in so far as it relates to the relevant holder's rights, be construed and have effect as if after “to which the grant relates” there were inserted “or any part or parts of a plant of such variety as is or are specified in the relevant direction given by the Controller under subsection (8) of this section”.

(9) Where the Controller is satisfied that the reproductive material of a plant variety is or will be used to produce for sale a different plant variety and that the nature of such different variety is such that repeated production of its reproductive material is not possible without the use in such production of reproductive material of the plant variety to which an application under this section has been or is to be allowed, the Controller shall, on an application being made to him in that behalf, direct that the relevant grant shall, in addition to operating in the manner described in subsection (5) of this section, operate to confer on the relevant holder the exclusive right to use such reproductive material in such production.

(10) The maximum period for which plant breeders' rights are to be exercisable pursuant to a grant under this section shall be twenty-five years:

Provided that, as respects fruit trees, forest trees, ornamental trees and grape vines (including in each case their rootstocks), the said period shall be not less than eighteen years and, as respects other genera and species, the said period shall be not less than fifteen years.

(11) A statement in regulations made for the purposes of this section that a species of plant or that each of the plants of a specified group of plants is a fruit tree, a forest tree, ornamental tree or grape vine shall be conclusive.

(12) (a) The period specified in a grant under this section as being that in which the plant breeders' rights thereby granted are to be exercisable shall be not less than—

(i) in case the grant is as respects fruit trees, forest trees, ornamental trees or grape vines (including in each case their rootstocks), eighteen years,

(ii) in case the grant is as respects other plants of other genera and species, fifteen years.

(b) Subject to section 11 of this Act, the period for which plant breeders' rights are exercisable shall be the period specified in the relevant grant under this section (which period shall not exceed the relevant maximum period prescribed by regulations made under this section), beginning on the date on which the grant of the plant breeders' rights by the Controller takes effect.

(13) Where plants of the variety to which an application for plant breeders' rights relates or material forming part of or derived from such plants, being plants or material of a variety to which the proviso to Article 2 of the First Schedule to this Act relates, have been sold in the State or elsewhere prior to the date of the application the following provisions shall have effect:

(a) the Controller shall, if he decides to allow the application, take the fact of such sale into account when fixing the period during which such rights are to be exercisable, and

(b) subsection (12) (a) of this section shall have effect in relation to the application as if the appropriate minimum period specified therin were reduced by—

(i) in case rights under the law of a convention country corresponding or analogous to plant breeders' rights have, prior to the date of the application, been granted as regards the variety, a period equal to that beginning on the date of such grant and ending on the date of the application, or

(ii) in case the variety is one described in paragraph (d) of the said Article 2, the period by reference to which subparagraph (ii) of the said paragraph (d) has been complied with.