Plant Varieties Bill

Plant Varieties Bill - continued	House of Commons
PART I, PLANT VARIETIES - continued

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	Duration and transmission of plant breeders' rights
Duration.	11. - (1) A grant of plant breeders' rights shall have effect-
	(a) in the case of potatoes, trees and vines, for 30 years from the date of the grant, and
	(b) in other cases, for 25 years from that date.
	(2) The Ministers may by regulations provide that, in relation to varieties of a species or group specified in the regulations, subsection (1) above shall have effect with the substitution in paragraph (a) or (b), as the case may be, of such longer period as may be so specified.
	(3) The period for which a grant of plant breeders' rights has effect shall not be affected by the fact it becomes impossible to invoke the rights-
	(a) because of Article 92(2) of the Council Regulation (effect of subsequent grant of Community plant variety right), or
	(b) because of suspension under section 21 below.
Transmission.	12. - (1) Plant breeders' rights shall be assignable like other kinds of proprietary rights, but in any case rights under section 6 above and rights under section 7 above may not be assigned separately.
	Remedies for infringement
Remedies for infringement.	13. - (1) Plant breeders' rights shall be actionable at the suit of the holder of the rights.
	(2) In any proceedings for the infringement of plant breeders' rights, all such relief by way of damages, injunction, interdict, account or otherwise shall be available as is available in any corresponding proceedings in respect of infringements of other proprietary rights.
	Duties of holder of plant breeders' rights
Maintenance of protected variety.	14. - (1) The holder of any plant breeders' rights shall ensure that, throughout the period for which the grant of the rights has effect, he is in a position to produce to the Controller propagating material which is capable of producing the protected variety.
	(2) The holder of any plant breeders' rights shall give to the Controller, within such time as he may specify, all such information and facilities as he may request for the purpose of satisfying himself that the holder is fulfilling his duty under subsection (1) above.
	(3) The facilities to be given under subsection (2) above include facilities for the inspection by or on behalf of the Controller of the measures taken for the preservation of the protected variety.
Compulsory licences.	15. - (1) Subject to subsections (2) and (3) below, if the Controller is satisfied on application that the holder of any plant breeders' rights-
	(a) has unreasonably refused to grant a licence to the applicant, or
	(b) has imposed or put forward unreasonable terms in granting, or offering to grant, a licence to the applicant,
	he may grant to the applicant in the form of a licence under this section any such rights as might have been granted by the holder.
	(2) The Controller shall not grant an application for a licence under this section unless he is satisfied-
	(a) that it is necessary to do so for the purpose of securing that the variety to which the application relates-
	(i) is available to the public at reasonable prices,
	(ii) is widely distributed, or
	(iii) is maintained in quality,
	(b) that the applicant is financially and otherwise in a position to exploit in a competent and businesslike manner the rights to be conferred on him, and
	(c) that the applicant intends so to exploit those rights.
	(3) A licence under this section shall not be an exclusive licence.
	(4) A licence under this section shall be on such terms as the Controller thinks fit and, in particular, may include-
	(a) terms as to the remuneration payable to the holder of the plant breeders' rights, and
	(b) terms obliging the holder of the plant breeders' rights to make propagating material available to the holder of the licence.
	(5) In deciding on what terms to grant an application for a licence under this section, the Controller shall have regard to the desirability of securing-
	(a) that the variety to which the application relates-
	(i) is available to the public at reasonable prices,
	(ii) is widely distributed, and
	(iii) is maintained in quality, and
	(b) that there is reasonable remuneration for the holder of the plant breeders' rights to which the application relates.
	(6) An application for a licence under this section may be granted whether or not the holder of the plant breeders' rights to which the application relates has granted licences to the applicant or any other person.
	(7) If and so far as any agreement purports to bind any person not to apply for a licence under this section, it shall be void.
	(8) If-
	(a) a licence under this section is granted as respects a variety of a species or group in relation to which a period is specified for the purposes of this provision by regulations made by the Ministers, and
	(b) the grant takes place before a period of that length has passed since the date of grant of the plant breeders' rights to which the licence relates,
	the licence shall not have effect until a period of that length has passed since that date.
	(9) The Controller may, at any time, on the application of any person, extend, limit or in any other respect vary a licence under this section, or revoke it.
	Naming of protected varieties
Selection and registration of names.	16. - (1) The Ministers may by regulations-
	(a) make provision for the selection of names for varieties which are the subject of applications for the grant of plant breeders' rights,
	(b) make provision about change of name in relation to varieties in respect of which plant breeders' rights have been granted, and
	(c) make provision for the keeping of a register of the names of varieties in respect of which plant breeders' rights have been granted.
	(2) Regulations under subsection (1) above may, in particular-
	(a) make provision enabling the Controller to require an applicant for the grant of plant breeders' rights to select a name for the variety to which the application relates,
	(b) make provision enabling the Controller to require the holder of plant breeders' rights to select a different name for the protected variety,
	(c) prescribe classes of variety for the purposes of the regulations,
	(d) prescribe grounds on which the registration of a proposed name may be refused,
	(e) prescribe the circumstances in which representations may be made regarding any decision as to the name to be registered in respect of any variety,
	(f) make provision enabling the Controller-
	(i) to refuse an application for the grant of plant breeders' rights, or
	(ii) to terminate the period for which a grant of plant breeders' rights has effect,
	if the applicant or holder fails to comply with a requirement imposed under the regulations,
	(g) make provision for the publication or service of notices of decisions which the Controller proposes to take, and
	(h) prescribe the times at which, and the circumstances in which, the register may be inspected by members of the public.
	(3) The Controller shall publish notice of all entries made in the register, including alterations, corrections and erasures-
	(a) in the gazette, and
	(b) in such other manner as appears to the Controller to be convenient for the publication of these to all concerned.
	(4) For the purposes of subsection (1) above, the variety in respect of which plant breeders' rights are granted is the protected variety.
Duty to use registered name.	17. - (1) Where a name is registered under section 16 above in respect of a variety, a person may not use any other name in selling, offering for sale or otherwise marketing propagating material of the variety.
	(2) Subsection (1) above shall have effect in relation to any variety from the date on which plant breeders' rights in respect of that variety are granted, and shall continue to apply after the period for which the grant of those rights has effect.
	(3) Subsection (1) above shall not preclude the use of any trade mark or trade name (whether registered under the Trade Marks Act 1994 or not) if-
	(a) that mark or name and the registered name are juxtaposed, and
	(b) the registered name is easily recognisable.
	(4) A person who contravenes subsection (1) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(5) In any proceedings for an offence under subsection (4) above, it shall be a defence to prove that the accused took all reasonable precautions against committing the offence and had not at the time of the offence any reason to suspect that he was committing an offence.
Improper use of registered name.	18. - (1) If any person uses the registered name of a protected variety in offering for sale, selling or otherwise marketing material of a different variety within the same class, the use of the name shall be a wrong actionable in proceedings by the holder of the rights.
	(2) Subsection (1) above shall also apply to the use of a name so nearly resembling the registered name as to be likely to deceive or cause confusion.
	(3) In any proceedings under this section, it shall be a defence to a claim for damages to prove that the defendant took all reasonable precautions against committing the wrong and had not, when using the name, any reason to suspect that it was wrongful.
	(4) In this section-
	"class" means a class prescribed for the purposes of regulations under section 16(1) above,
	"registered name", in relation to a protected variety, means the name registered in respect of it under section 16 above.
	Termination and suspension of plant breeders' rights
Nullity.	19. - (1) The Controller shall declare the grant of plant breeders' rights null and void if it is established-
	(a) that when the rights were granted the protected variety did not meet the criterion specified in paragraph (a) or (d) of section 4(2) above,
	(b) where the grant of the rights was essentially based upon information and documents furnished by the applicant, that when the rights were granted the protected variety did not meet the criterion specified in paragraph (b) or (c) of that provision, or
	(c) that the person to whom the rights were granted was not the person entitled to the grant of the rights and the rights have not subsequently been transferred to him, or his successor in title.
	(2) If, because of paragraph 6 of Schedule 2 to this Act, priority is established for an application for the grant of plant breeders' rights after such rights have been granted in pursuance of an application against which priority is established, subsection (1)(c) above shall only apply to the grant if the Controller decides that the application for which priority is established should be granted.
	(3) Where the grant of plant breeders' rights is declared null and void under this section, it shall be deemed never to have had effect.
Cancellation.	20. - (1) The Controller may terminate the period for which a grant of plant breeders' rights has effect if-
	(a) he is satisfied that the protected variety no longer meets the criterion specified in paragraph (b) or (c) of section 4(2) above,
	(b) it appears to him that the holder of the rights is no longer in a position to provide him with the propagating material mentioned in section 14(1) above,
	(c) he is satisfied that the holder of the rights has failed to comply with a request under section 14(2) above, or
	(d) on application by the holder of the rights, he is satisfied that the rights may properly be surrendered.
	(2) Before determining an application under subsection (1)(d) above, the Controller shall-
	(a) give notice of the application in the manner prescribed by regulations made by the Ministers, and
	(b) follow the procedure so prescribed for hearing any person on whom the right to object is conferred by such regulations.
	(3) If the Controller is satisfied, not only that the protected variety no longer meets the criterion specified in paragraph (b) or (c) of section 4(2) above, but also that it ceased to do so at some earlier date, he may make the termination retrospective to that date.
Suspension.	21. - (1) The Controller may suspend the exercise of any plant breeders' rights if, on application by the holder of a licence under section 15 above, he is satisfied that the holder of the rights is in breach of any obligation imposed on him by the licence.
	(2) The Controller shall terminate a suspension under subsection (1) above if, on application by the holder of the plant breeders' rights concerned, he is satisfied that the holder is no longer in breach of the obligation whose breach led to the suspension.
	(3) Subsection (1) above is without prejudice to the remedies available to the holder of a licence under section 15 above by the taking of proceedings in any court.

Prepared 12 June 1997