Act No. 132 / 1989 Coll.
Law on the protection of rights to new plant varieties and animal breeds
Valid
Effective from 01.01.1990
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132
THE LAW
of 15 November 1989
on the protection of rights to new plant varieties and breeding of animals
The Federal Assembly of the Czechoslovak Socialist Republic decided on this law:
GENERAL PROVISIONS
Purpose and scope of the law
(1) The purpose of this Act is to regulate the rights and obligations of natural and legal persons arising from the creation of new varieties of plants (varieties) and breeds of animals (breeds) and their commercial exploitation.
(2) The law applies to varieties and breeds of economically significant species and genera of plants and animals, the list of which is laid down in general binding legislation.
Definition of terms
For the purposes of this Act:
(a) a variety of individuals belonging to the only lowest category of botanical grading, defined by the characteristics of a particular genotype or combination of genotypes, distinguished from other sets of plants by the expression of at least one of those characteristics and reproducible without change;
(b) propagating material of varieties - seed, seed, nurseries and parts thereof intended for further reproduction;
(c) breeding - a population of animals of uniform origin, characteristic morphological and physiological characteristics, capable of reproduction; lines and hybrids shall be considered as breeds and, in poultry, commercial types;
(d) propagating material of embryos, semen and live animals and ova intended for further reproduction;
(e) originator - natural person who has his own creative activity created a variety or breed; the originator is also more than one person if they have participated in the creation of a variety or breed in their own creative activities;
(f) the creation of a variety or breed in the course of the activities of the Czechoslovak organisation - the creation of a variety or breed in connection with the performance of tasks related to the work, membership or similar relationship to that organisation or for its physical support;
(g) breeder -
1. a legal person having the right of ownership or the right to farm a variety or breed as a result of his breeding activity;
2. the producer who created the variety or breed outside the scope of the activities of the Czechoslovak organisation;
3. a foreign legal or natural person who has the right to dispose of a variety or breed;
(h) commercial exploitation of varieties and breeds - production for sale, offering for sale and sale of variety material and breed material;
(i) the owner of the breeding certificate - he to whom the breeding certificate has been issued or his successor in title.
GRANTING OF CHEMICAL CERTIFICATES AND RIGHTS AND OBLIGATIONS OF CHECHERS AND ORIGINATORS
(1) The breeder or his successor in law (hereinafter referred to as the applicant) shall be granted, on the basis of his application, a breeding certificate for a variety or breed which satisfies the conditions set out in Sections 4 to 6.
(2) The nobility certificate shall be endorsed:
(a) the development of a variety or breed;
(b) the name of the variety or breed, indicating the species (genus),
(c) originality;
(d) the right of the breeder to make commercial use of the variety or breed;
(e) the period of protection of rights to the variety or breed.
Conditions for granting a breeding certificate per variety
(1) The conditions for granting a breeding certificate on a variety are fulfilled if the variety is:
(a) at least one essential characteristic or characteristic different from any other variety generally known at the date of filing of the application;
(b) balanced by the appropriate biological characteristics of the material;
(c) permanent in essential respects, while respecting the particularities which it requires in propagation;
(d) new.
(2) The variety is new if it has not been sold or offered for sale
(a) in the territory of the Czechoslovak Socialist Republic more than one year before the filing of the application (§ 16),
(b) in the territory of another State,
1. if there are varieties of fruit trees, forest or ornamental trees or vines more than six years before the application is submitted,
2. if there are varieties of other species, more than four years before the application is submitted.
(3) A variety which has been sold or offered for sale without the consent of the breeder shall also be considered a new variety.
Conditions for the award of breeding certificates per breed
(1) The conditions for the granting of a breeding certificate for a breed subject to specific rules (1) are fulfilled if the breed has been recognised or authorised under those rules within a period of not more than one year before the application is submitted (§ 16).
(2) The conditions for the granting of a breeding certificate for a breed not covered by specific provisions (1) are fulfilled if the breed:
(a) at least one constituent character or characteristic from any other breed generally known at the date of filing the application;
(b) balanced by the appropriate biological characteristics of the breed,
(c) permanent in essential respects, while respecting the specificities of the breeding environment;
(d) new,
(e) sufficiently numerous for reproduction.
(3) The breed is new, if not sold or offered for sale
(a) in the territory of the Czechoslovak Socialist Republic more than one year before the filing of the application;
(b) on the territory of another State more than six years before the filing of the application.
(4) A breed which has been sold or offered for sale without the consent of the breeder shall also be considered as a new breed.
Name of variety or breed
(1) If a variety or breed has been authorised in the Czechoslovak Socialist Republic under special regulations, 2) have a name designated in accordance with those regulations.
(2) No names allowed
(a) composed only of numbers,
(b) identical or interchangeable with a name used in the Czechoslovak Socialist Republic or abroad for a variety or breed of the same or related genus, or otherwise infringing the rights of other breeders;
(c) giving rise to misconceptions of the value, characteristics or origin of the variety or breed, the identity of the breeder or producer;
(d) identical or interchangeable to a trade mark, designation of origin or geographical name for the same or similar products, with a known trade mark, irrespective of the type of product or otherwise infringing the rights and protected interests of other bodies;
(e) contrary to the interest of society,
(f) inappropriate for linguistic reasons.
(3) A foreign variety or breed shall be left with the original name or, where appropriate, its translation into the Czech or Slovak language, provided that it complies with the requirements laid down in paragraph 2.
The originator's rights
(1) Origin is created by the creation of a variety or breed and is non-transferable.
(2) The origin must be indicated in the application and in the breeding certificate if a Czechoslovak variety or breed has been registered.
(3) The originator who has created a variety or breed in the course of the activities of the Czechoslovak organisation has the right to participate in the financial contribution from the commercial exploitation of the variety or breed and the financial contribution from any transfer of the breeding certificate to a foreign body. Unless otherwise agreed, the share shall be due on 1 April for the previous calendar year in which the financial contribution has been achieved.
(4) Where more than one agent has participated in the creation of a variety or breed, they shall participate in their rights in the proportion in which they participated in their creation. If the shares of individual originators cannot be determined, their shares shall be deemed to be the same.
(5) The procedure for determining the financial contribution from the commercial exploitation of the variety or breed, determining the amount of the originator's share of the financial contribution and the method of calculating and paying it shall be laid down in general binding legislation.
Rights and obligations of the breeding certificate
(1) The owner of a breeding certificate has the exclusive right to use the variety or breed commercially; without his consent, the variety and breed cannot be used commercially for the duration of protection.
(2) Czechoslovak organisations which carry out the tasks of state care for the development of breeding according to an authorisation issued under the Specific Regulations (1) do not need such consent if the owner of the breeding certificate is a Czechoslovak legal or natural person on the breed.
(3) The consent of the owner of the breeding certificate is not required where the variety or breed is used to develop another variety or breed; This does not apply if they are re-used as a component for the production of another variety or the production of another breed for sale.
(4) The right to commercial exploitation of the variety or breed shall also include the right to give consent to their commercial exploitation to other persons. The consent (licence) shall be provided by a written contract containing conditions of use and licensing arrangements.
(1) In the joint development of a variety or breed, more than one agent in their activities in several Czechoslovak organisations, such organisations as co-owners of a breeding certificate shall participate in the rights and obligations of the variety or breed in the same proportion as those of the originators.
(2) For legal acts against third parties, the co-owners of a breeding certificate shall be authorised and required jointly and severally. They shall deal with each other according to the size of their shares.
Forced licence
(1) Where the holder of a breeding certificate refuses to consent to the commercial exploitation of a variety or breed either at all or to the extent necessary, the Federal Ministry of Agriculture and Nutrition (hereinafter referred to as "the Ministry ') may, in the general interest, replace his consent by granting a compulsory licence.
(2) In the case of the grant of a compulsory licence, the holder of a breeding certificate has the right to pay royalties. In the event of a dispute over the amount of remuneration between the holder of the breeding certificate and the organisation in respect of which the compulsory licence has been granted, the authority referred to in Article 25 shall decide on it on a proposal from one of them, taking into account the costs incurred for the development of the variety or breed and the expected financial benefits from their commercial exploitation.
(3) If the holder of a patent for a biotechnology invention cannot use the patent without infringing an earlier right to a plant variety or breed, he may apply for a compulsory licence for the non-exclusive use of the variety or breed. The Ministry shall grant the compulsory licence if the holder of the patent has unsuccessfully applied to the holder of the breeding certificate for the grant of a contract licence and if the invention protected by the patent represents important technical progress of significant economic importance compared to a plant variety or animal breed. Paragraph 2 shall apply to determine the amount of the licence fees in the case of the grant of a compulsory licence. In this case, the owner of the breeding certificate shall be entitled to a cross-licence (counter-licence) for the use of a biotechnology invention.
(4) Where the holder of a breeding certificate has been granted a compulsory licence for the use of a biotechnology invention, the holder of the patent is entitled to a cross-licence (counter-licence) for the commercial exploitation of a plant variety or animal breed.
Transfer of the breeding certificate
(1) The holder of a breeding certificate may transfer the breeding certificate by written contract to another body. This shall transfer to the transferee the rights and obligations arising from the breeding certificate, except originality. The owner of the breeding certificate shall have the right to require the transferee to pay for such transfer.
(2) The co-owner of the breeding certificate may transfer his share to any of the other co-owners. It may transfer its share to a third party only if none of the joint owners accepts the transfer offer in writing within one month.
(3) The contract for the transfer of a breeding certificate takes effect on the date of entry in the register of protected varieties or in the register of protected breeds maintained by the Ministry; the registration shall be made upon payment of the administrative fee. 3)
(4) A change in the person holding the breeding certificate other than the transfer referred to in paragraphs 1 to 3 shall be possible only in cases provided for by law.
(5) The change in the person holding the breeding certificate is entered in the register of protected varieties or in the register of protected breeds.
Duration of the breeding certificate
The nobility certificate shall be valid from the date of filing of the application.
(a) for varieties of hops, vines, fruit, ornamental and forest trees and rootstocks of these species for 25 years,
(b) for varieties of other species for 20 years,
(c) in the case of breeds for the duration of the breed.
Termination of the breeding certificate
(1) A breeding certificate shall cease if:
(a) its period of validity expires;
(b) the owner of the breeding certificate does not pay the administrative fee in time, 3)
(c) the owner (all co-owners) of the breeding certificate shall notify in writing that the breeding certificate is surrendered;
(d) has been abolished (§ 23).
(2) The death of a breeding certificate is indicated in the register of protected varieties or in the register of protected breeds and is published in the Bulletin of the Federal Ministry of Agriculture and Nutrition ("Bulletin").
Name protection
The name of the variety or breed shall be used for commercial exploitation of the variety or breed and for further breeding. The name of the variety or breed shall not be used for another variety or breed of the same or related genus or after the expiry of the breeding certificate.
Relations with abroad
(1) Under reciprocal conditions, foreign natural and legal persons shall enjoy the same rights and obligations as Czechoslovak persons, but - if it is for the rights of owners of a breeding certificate - only if the State of which that person is a national or has its registered office provides protection for the species of plants or animals concerned. In cases of special consideration, a breeding certificate may be issued even if this condition is not met.
(2) The provisions of the international treaties binding on the Czechoslovak Socialist Republic remain unaffected.
MANAGEMENT IN RESPECT OF PROTECTION AND PLUMENTAL
Submission of applications
(1) An application for the protection of a variety or breed is authorised by the applicant (§ 3).
(2) Applications shall be submitted to the Ministry; the application is submitted to the applicant for priority.
(3) The right of priority resulting from an international contract must be exercised by the applicant in the application and demonstrated within three months, otherwise not taken into account. The application must state the date and state of filing the first application abroad, from which the applicant derives the right of priority.
(4) The Ministry shall enter the applications in the order in which they were delivered in the list of applications for new varieties or in the list of applications for new breeds.
Review of the application
(1) If the application is not required, the Ministry shall invite the applicant to remedy the deficiencies within the prescribed time limit; in the case of special consideration, assist him in removing them. If the deficiencies are not remedied within the prescribed time limit, the Ministry shall suspend the proceedings. This consequence must be brought to the attention of the applicant when setting the time limit.
(2) If the applicant removes the deficiencies properly and within the prescribed time limit, the right of priority shall remain the same.
(3) The elements of the application are laid down in general binding legislation.
Publication of the application
(1) The Ministry publishes notices of applications submitted in the Bulletin. Within three months of the publication of the notice, reasoned objections to the application submitted may be lodged with the Ministry; they may be submitted by any legal or natural person. Opposition is decided by the Ministry. If an expert opinion has been requested for the decision on objections (Paragraph 20), the Ministry shall decide within three months of receipt of the opinion.
(2) A change in the applicant's person may be made after the application has been lodged
(a) with the consent of the applicant,
(b) without his consent on the basis of a final decision of the body referred to in Paragraph 25.
(3) In the course of the application procedure, if a dispute arises as to whether the application was filed by an authorised applicant, the Ministry shall continue the procedure, but the decision on the breeding certificate shall be given only after the legal power of the decision of the authority referred to in Section 25.
(4) The change in the person of the applicant shall be indicated in the list of applications for new varieties or in the list of applications for new breeds.
Applications for Czechoslovak varieties and breeds abroad
(1) The application for protection of the Czechoslovak variety or breed may be submitted abroad only after registration in the Czechoslovak Socialist Republic; The Ministry may allow an exemption from this obligation from important commercial political interests. This regulation is subject to the condition that the international treaty binding the Czechoslovak Socialist Republic does not provide otherwise.
(2) The applicant shall notify the Ministry of registration of the Czechoslovak variety or breed abroad.
Detection of characteristics and characteristics of varieties and breeds
(1) The conditions set out in paragraphs 4 to 6 are ascertained by the Ministry on the basis of opinions of the professional bodies and organisations of breeds subject to specific rules (1), following a decision of the competent authority.
(2) The professional bodies and organisations are required, at the request of the Ministry and within a time limit set in agreement with them, to assess the characteristics and characteristics of varieties and breeds. To this end, the applicant shall make biological and documentation material available to the expert body or organisation free of charge.
(3) The professional bodies and organisations may use the results of tests carried out abroad to assess varieties and breeds.
(4) The professional bodies and organisations have the right to reimbursement against the applicant for the performance associated with the assessment of varieties and breeds, in accordance with price regulations.
Approval of a breeding certificate
(1) On receipt of an opinion from an expert body or organisation or, where appropriate, from a competent authority, the Ministry shall decide within three months on the granting of a breeding certificate.
(2) The decision to grant a breeding certificate is entered in the register of protected varieties or in the register of protected breeds. The Czechoslovak originator who is not the applicant shall receive a copy of the breeding certificate.
(3) The nobility certificate is published in the Bulletin; the breeding certificate for varieties shall also be entered in the national varietal book.4)
Verification tests
(1) The owner of the breeding certificate is required to maintain the variety or breed during the period of validity of the breeding certificate. If there is doubt as to whether the variety or breed continues to satisfy the conditions laid down in Sections 4 (1) (b) and (c) and 5 (2) (b), (c) and (e), the owner of the breeding certificate shall, at the request of the Ministry, make available, free of charge, biological and documentary material to verify those conditions.
(2) Verification shall be carried out by organisations responsible for carrying out the verification tests by means of specific regulation.5) For breeds not covered by specific regulations, 1) verification shall be carried out by the authorities or organisations designated by the Ministry.
(3) The authorities and organisations referred to in paragraph 2 shall have the right to pay the breeder for the performance of the verification tests in accordance with price regulations. This provision shall not apply to the verification tests of breeds subject to specific Regulation (1).
Decision to revoke the breeding certificate
(1) The Ministry shall revoke the breeding certificate if:
(a) it shall subsequently become apparent that the conditions for granting it have not been fulfilled; in that case, the breeding certificate shall be considered not to have been granted;
(b) the variety or breed no longer shows the characteristics found at the time the breeding certificate was granted;
(c) shall not be supplied properly and in a timely manner with biological and documentation material for verification tests (Section 22);
(d) no payment shall be made within the time limit set for carrying out verification tests.
(2) The revocation of the breeding certificate shall be indicated in the register of protected varieties or in the register of protected breeds and shall be published in the Bulletin. The revocation of the breeding certificate for varieties shall also be entered in the national varietal book.4)
COMMON, TRANSITIONAL AND FINAL PROVISIONS
Administrative procedure
The procedure before the Ministry shall be followed in accordance with the administrative rules, (6) unless otherwise provided for by this law.
Dispute settlement
Disputes arising from legal relations under this law shall be discussed and decided by courts or economic arbitrage under their jurisdiction.
Protection of rights
In the event of unauthorised interference with the law protected by this law, the owner of the breeding certificate or of the originator, unless the holder of the breeding certificate whose right has been infringed, may in particular request that the cancellation of the right be prohibited and that the consequences of the infringement be removed. If damage has been caused by this intervention, the injured party shall be entitled to compensation. In the event of non-property damage, the injured party shall have the right to reasonable satisfaction, which may include cash performance.
Fines for organisations
(1) An organisation which:
(a) during the period of validity of the breeding certificate:
1. make commercial use of the variety or breed without the consent of the owner of the breeding certificate;
2. in the commercial exploitation of a variety or breed, it does not use their registered name for them or use their registered name for another variety or breed of the same or related genus;
(b) unduly submit an application for protection of the Czechoslovak variety or breed abroad (§ 19 (1));
(c) not notify the Ministry that it has applied for a Czechoslovak variety or breed for protection abroad (§ 19 (2)),
the Ministry may impose a fine of up to 500 000 CZK.
(2) In fixing the amount of the fine, the Ministry shall take into account in particular the gravity, manner, duration and consequences of the infringement.
(3) The fine may be imposed only within one year of the date on which the Ministry became aware of the infringement, but no later than three years after the date on which it was committed. The fine shall be payable within 30 days of the date on which the decision to impose it became final.
(4) The proceeds of fines constitute the revenue of the Federation State Budget.
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Regulation Information
| Citation | Act No. 132 / 1989 Coll., on the Protection of Rights to New Plant Varieties and Animal Breeding |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.11.1989 |
|---|---|
| Effective from | 01.01.1990 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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