Plant Varieties (Proprietary Rights)(Amendment) Act 1998

1 Interpretation.

1.—(1) In this Act, except where the context otherwise requires—

“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 Protection of New Varieties of Plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991;

“the Council Regulation” means Council Regulation (EC) No. 2100/94 of 27 July 1994[^(1)] on 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 notice” 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;

“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 Act—

(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 indicated that 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 the reference occurs unless it is indicated that reference to some other provision is intended,

(c) a reference to any enactment is a reference to that enactment as amended, extended or adapted by or under any subsequent enactment.

(3) In this Act a reference to the Council Regulation shall be construed as a reference to the Council Regulation as amended, adapted or extended.

2 Amendment of section 1 of Principal Act.

2.—Section 1 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1) of the following definition for the definition of “variety”:

“‘variety’ means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether or not the conditions for the grant of a plant breeder's right are fully met, may be—

(a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

(b) distinguished from any other plant grouping by the expression of at least one of those characteristics, and

(c) considered as a unit in relation to the suitability of the plant grouping concerned remaining unchanged following the propagation;”,

(b) the deletion in subsection (1) of the definitions of “authorisation”, “the Convention”, “Convention country”, and “holder”,

(c) the insertion of the following definition in subsection (1):

“‘Contracting Party’ means a state or an intergovernmental organisation which is a party to the Convention or in respect of which a declaration under section 2 of this Act has been made;”,

and

(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 Amendment of section 2 of Principal Act.

3.—Section 2 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1)—

(i) of “for the protection of intellectual property or any other relevant international co-operation or agreement for the protection of intellectual property” for “for the protection of plant varieties and plant breeders’ 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 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 Contracting Party 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 Contracting 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 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 Contracting Party.

4 Amendment of section 3 of Principal Act.

4.—Section 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 findings of tests, trials or examinations in relation to plant breeders’ rights carried out by an applicant on the premises of that applicant or, subject to the consent of the Controller, any other premises,”.

5 Amendment of section 4 of Principal Act.

5.—The Principal Act is hereby amended by the substitution of the following section for section 4:

“Plant breeders' rights.

4.— (1) In this Act ‘plant breeders’ rights’ means all proprietary rights in relation to any variety of any plant genus or species which has been independently bred or discovered and developed.

(2) Plant breeders’ rights which apply to a protected variety shall also apply to—

(a) a variety which is essentially derived from that protected variety, where that protected variety is not itself an essentially derived variety,

(b) a variety which, having regard to the First Schedule to this Act (as amended by section 14 of the Plant Varieties (Proprietary Rights) (Amendment) Act, 1998) is not clearly distinguishable from that protected variety, and

(c) a hybrid variety.

(3) Subsection (2) shall not apply to an essentially derived variety which was known to exist before the coming into operation of this Act.

(4) In this Act—

‘essentially derived variety’ means a variety that is essentially derived from another variety if—

(a) the essentially derived variety is predominantly derived from that other variety (in this Act referred to as the ‘initial variety’) or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,

(b) it is clearly distinguishable from the initial variety,

(c) it conforms, except for the differences which result from the act of derivation, to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, and

(d) it may be obtained, without prejudice to the generality of the foregoing, by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering;

‘hybrid variety’ means a variety in respect of which the production of such variety requires the repeated use of the protected variety;

‘variety which is not clearly distinguishable’ means a variety which is not clearly distinguishable from the protected variety.”.

6 Amendment of section 5 of Principal Act.

6.—Section 5 of the Principal Act is hereby amended in subsection (1) by—

(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 the course 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 state party to the International Convention for the Protection of New Varieties of Plants of 1961, 1972 or 1978 or a Contracting 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 discovered and developed a variety in the course of his or her employment, the Controller, in determining such application, shall have regard to—

(a) an agreement, if any, between that person and the employer concerning the entitlement to apply for a grant of plant breeders’ rights, and

(b) any statutory provisions concerning the relationship between employer and employee for the time being in force in—

(i) the country or territory in which such employee is wholly or mainly employed, or

(ii) where the identity of such country or territory cannot be determined, the country or territory in which the business of such employer is situate.”.

7 Amendment of section 6 of Principal Act.

7.—(1) Section 6 of the Principal Act is hereby amended by—

(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 applications, shall have regard to the date of receipt of the applications concerned and, subject to subsection (2) of this section, shall consider the application, having regard to the date of receipt, which was the first such application received 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 the same date and the time of such receipt on such date cannot be established, the applications concerned shall rank equally in order of precedence.”.

(2) Section 6 of the Principal Act is hereby amended in subsection (3) by—

(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 applicant” to the end of the subsection.

(3) Section 6 of the Principal Act is hereby amended by—

(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 Amendment of section 7 of Principal Act.

8.—The Principal Act is hereby amended by the substitution of the following section for section 7:

“Protection of applicants while application pending.

7.— (1) The holder shall, following the grant of plant breeders’ rights, be entitled to compensation from any person who has in the relevant period performed any act which such person would be prohibited from performing after the grant of plant breeders’ rights.

(2) In this section the ‘relevant period’ means the period beginning on the day on which the application for the grant of plant breeders’ rights is published in the Journal and ending on the date of the grant of such plant breeders’ rights.”.

9 Amendment of section 8 of Principal Act.

9.—Section 8 of the Principal Act is hereby amended by—

(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.

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(1) Subject to the provisions of this section, if any person applies to the Controller and satisfies him that, in relation to the public interest, a holder has unreasonably refused to grant to the applicant an authorisation or, in granting or offering to grant such an authorisation, has imposed or put forward terms which are either unreasonable or contrary to the public interest, the Controller shall, if he is satisfied that the applicant is in a position, and intends, to exercise rights in a competent manner which would be conferred by such an authorisation, grant to the person in the form of a licence any such rights as respects the relevant plant 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 has been distributed in a manner which is not in the public interest or that such a plant variety should be widely distributed, or that it is otherwise in the public interest to do so, the Controller shall grant to the person in the form of a licence any rights as respects that variety as may be granted by the relevant holder.

10 Amendment of section 11 of Principal Act.

10.—Section 11 of the Principal Act is hereby amended by—

(a) the substitution of the following subsection for subsection (1):

“(1) The Controller may—

(a) declare the grant of plant breeders’ rights null and void where the Controller is satisfied that—

(i) the protected variety concerned did not, at the time of the grant, comply with the conditions specified in either or both paragraph 1 or paragraph 4 of the First Schedule to this 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 conditions specified in either or both paragraph 2 or paragraph 3 of the First Schedule to this Act (as amended by section 14 of the Plant Varieties (Proprietary Rights) (Amendment) Act, 1998) where such grant was obtained on the basis of information or documents or both furnished by the applicant, 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 plant breeders’ rights concerned have been transferred to the holder by the person properly entitled to such grant,

(b) cancel plant breeders’ rights in relation to a protected variety if the Controller is satisfied that in relation to such protected variety concerned the conditions specified in either or both paragraphs 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 or neglects to pay such fees as may be required to maintain the grant of the plant breeders’ rights concerned, or

(d) cancel plant breeders’ rights of a protected variety if the holder does not propose another suitable denomination where the denomination of the protected variety concerned is cancelled.”,

(b) the substitution in subsection (2) of “cancel” for “revoke” and of “cancellation” for “revocation” in each place where it occurs, and

(c) the substitution in subsection (3) of “cancels” for “revokes” and of “cancellation” for “revocation”.

11 Amendment of section 12 of Principal Act.

11.—Section 12 of the Principal Act is hereby amended in subsection (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 Amendment of section 23 of Principal Act.

12.—Section 23 of the Principal Act is hereby amended by—

(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 rights granted under the Council Regulation, in relation to any plant variety and in respect of which Community plant variety rights have or have not been granted under the Council Regulation, and that person knows that the representation is false or makes the representation recklessly, he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment.”.

13 Amendment of section 25 of Principal Act.

13.—Section 25 of the Principal Act is hereby amended in subsection (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 examination where such test or examination is carried out on the premises of the breeder concerned or other premises in agreement with the Minister,

(g) such administrative costs as may be incurred by the Controller concerning applications under the Council Regulation, and