Plant Varieties Bill

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

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	Proceedings before the Controller
Right to be heard: general.	22. The Ministers shall by regulations make provision for any decision of the Controller against which an appeal lies to the Tribunal to be made only after an opportunity of making representations to him, and of being heard by him or by a person appointed by him for the purpose, has been afforded-
	(a) to the person entitled to appeal to the Tribunal against that decision, and
	(b) to persons of such other descriptions as may be prescribed by the regulations.
Right to be heard: applications for compulsory licences.	23. - (1) This section applies to an application for the grant of a licence under section 15 above if the holder of the plant breeders' rights to which the application relates is, or includes, or is represented by, a society or other organisation falling within subsection (2) below.
	(2) A society or other organisation falls within this subsection if it has as its main object, or one of its main objects, the negotiation or granting of licences to exercise plant breeders' rights, either as the holder of the rights or as agent for holders.
	(3) If-
	(a) any organisation or person applies to the Controller for an opportunity of making representations concerning an application to which this section applies, and
	(b) the Controller is satisfied that the conditions mentioned in subsection (4) below are met,
	he shall afford to the organisation or person by whom the application under this subsection is made an opportunity of making representations to him and of being heard by him or by a person appointed by him for the purpose.
	(4) The conditions referred to in subsection (3) above are-
	(a) that the organisation or person has a substantial interest in the application for a licence under section 15 above,
	(b) that that application involves issues which may affect other applicants for licences under that section, and
	(c) where the application under subsection (3) above is made by an organisation, that the organisation is reasonably representative of the class of persons which it claims to represent.
	(5) The rights conferred by this section are in addition to any rights which may be conferred under section 22 above.
Appeals to the Tribunal.	24. - (1) An appeal shall lie to the Tribunal against the following decisions of the Controller-
	(a) a decision to allow or refuse an application for the grant of plant breeders' rights,
	(b) any decision preliminary to the determination of such an application as to the conditions laid down in section 4 above,
	(c) a decision to allow or refuse an application under section 15(1) or (9) above,
	(d) any decision under section 19 or 20(1)(a), (b) or (c) above,
	(e) a decision to refuse an application under section 20(1)(d) above, and
	(f) a decision to allow or refuse an application under section 21(1) or (2) above.
	(2) The Ministers may by regulations confer a right of appeal to the Tribunal against-
	(a) a decision of the Controller to refuse an application under section 23(3)(a) above, or
	(b) any decision of the Controller under regulations made under section 16 above or section 26 or 27 below.
	Discharge of the Controller's functions
Ministerial guidance.	25. The Controller shall, in exercising his functions, act under the general direction of the Ministers, except in relation to the taking of a decision from which an appeal lies to the Tribunal.
Regulations.	26. - (1) The Ministers may by regulations make such provision as they think fit as respects the manner in which the Controller is to discharge his functions under this Part of this Act, in particular as respects applications for the grant of plant breeders' rights and other applications to the Controller under this Part of this Act.
	(2) Regulations under subsection (1) above may, in particular-
	(a) make provision for restricting the making of repeated applications on the same subject,
	(b) prescribe the circumstances in which representations may be made regarding any decision on an application or in connection with the charging of fees,
	(c) make provision as to the keeping of registers and records by the Controller and their rectification, and prescribe the circumstances in which they may be inspected by members of the public,
	(d) make provision for the publication or service of notice of applications and of the Controller's decisions,
	(e) prescribe the manner of dealing with objections to applications.
Fees.	27. - (1) The Ministers may make regulations as respects the charging of fees by the Controller, including periodical fees payable by persons holding plant breeders' rights.
	(2) Regulations under subsection (1) above may authorise the Controller-
	(a) in the case of a failure to pay any fees payable in connection with any application to him under this Part of this Act, to refuse the application, and
	(b) in the case of a failure by a holder of plant breeders' rights to pay any fees payable in connection with those rights, to terminate the period for which the grant of those rights has effect;
	and may provide for the restoration of the application or the rights if the failure to pay fees is made good.
Use of outsiders.	28. The Controller may use the services of persons who are not appointed as officers or servants of the Plant Variety Rights Office-
	(a) in carrying out the tests and trials which he considers expedient for the purposes of this Part of this Act, and
	(b) in assessing the results of any tests and trials (whether carried out by him or not) which he considers relevant for those purposes.
	False information and representations as to rights
False information.	29. - (1) If any information to which this section applies is false in a material particular and the person giving the information knows that it is false or gives it recklessly, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(2) The information to which this section applies is-
	(a) information given in an application to the Controller for a decision against which an appeal lies to the Tribunal,
	(b) information given by or on behalf of the applicant in connection with such an application, and
	(c) information given in pursuance of a request under section 14(2) above.
False representations as to rights.	30. - (1) If, in relation to any variety, a person falsely represents that he is entitled to exercise plant breeders' rights, or any rights derived from such rights, and he knows that the representation is false, or makes it recklessly, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(2) It is immaterial for the purposes of subsection (1) above whether or not the variety to which the representation relates is the subject of plant breeders' rights.
	Miscellaneous
Exclusion from Restrictive Trade Practices Act 1976.	31. The Restrictive Trade Practices Act 1976 shall not apply-
	(a) to any licence granted by the holder of plant breeders' rights or by any other person authorised to grant a licence in respect of such rights,
	(b) to any assignment of plant breeders' rights or of the title to apply for the grant of such rights, or
	(c) to any agreement for such a licence or assignment,
	being a licence, assignment or agreement under which no such restrictions as are described in section 6(1) of that Act are accepted, except in respect of goods which are plants or parts of plants of a variety to which the plant breeders' rights relate, or a variety to which those rights will relate if they are granted.
Reference collections of plant material.	32. - (1) The Controller may establish and maintain reference collections of plant material.
	(2) The Controller may by means of grants of such amounts as he may determine defray or contribute towards the expenses incurred by any other person in maintaining any reference collection of plant material.
	General
Offences by bodies corporate, etc.	33. - (1) Where an offence under this Part of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to be proceeded against and punished accordingly.
	(2) Where an offence under this Part of this Act committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he, as well as the partnership, shall be guilty of the offence and liable to be proceeded against and punished accordingly.
Jurisdiction in relation to offences.	34. - (1) Proceedings for an offence under this Part of this Act may be taken against a person before the appropriate court in the United Kingdom having jurisdiction in the place where that person is for the time being.
	(2) Subsection (1) above is without prejudice to any jurisdiction exercisable apart from that subsection.
Interpretation of Part I.	35. - (1) In this Part of this Act-
	"the Council Regulation" means Council Regulation (EC) No 2100/94 of 27th July 1994 on Community plant variety rights, and references to particular provisions of the Council Regulation shall be construed as references to those provisions, or provisions of any Community instrument replacing them, as amended from time to time;
	"gazette" means the gazette published under section 34 of the Plant Varieties and Seeds Act 1964;
	"name" includes any designation;
	"protected variety", in relation to any plant breeders' rights, means the variety which was the basis of the application for the grant of the rights;
	"variety" has the meaning given by section 1(3) above.
	(2) In this Part of this Act references to an applicant for the grant of plant breeders' rights, or to the holder of plant breeders' rights, include, where the context allows, references to his predecessors in title or his successors in title.
	(3) For the purposes of this Part of this Act, the existence of a variety shall be taken to be a matter of common knowledge if-
	(a) it is, or has been, the subject of a plant variety right under any jurisdiction,
	(b) it is, or has been, entered in an official register of plant varieties under any jurisdiction, or
	(c) it is the subject of an application which subsequently leads to its falling within paragraph (a) or (b) above.
	(4) Otherwise, common knowledge may be established for those purposes by reference, for example, to-
	(a) plant varieties already in cultivation or exploited for commercial purposes,
	(b) plant varieties included in a recognised commercial or botanical reference collection, or
	(c) plant varieties of which there are precise descriptions in any publication.
Application of Part I to the Crown.	36. - (1) If-
	(a) any servant or agent of the Crown infringes any plant breeders' rights or makes himself liable to civil proceedings under section 18 above, and
	(b) the infringement or wrong is committed with the authority of the Crown,
	civil proceedings in respect of the infringement or wrong shall lie against the Crown.
	(2) Except as provided by subsection (1) above, no proceedings shall lie against the Crown by virtue of the Crown Proceedings Act 1947 in respect of the infringement of plant breeders' rights or any wrong under section 18 above.
	(3) This section shall have effect as if contained in Part I of the Crown Proceedings Act 1947.
Application of Part I to existing rights.	37. - (1) Subject to the following provisions of this section, this Part of this Act applies in relation to existing rights as it applies in relation to plant breeders' rights granted under this Part of this Act.
	(2) Section 5 above shall not apply in relation to existing rights.
	(3) Section 11 above shall only apply to existing rights if the effect is to extend the period for which the rights are exercisable.
	(4) In this section, "existing rights" means plant breeders' rights granted under Part I of the Plant Varieties and Seeds Act 1964 which are exercisable on the coming into force of this Part of this Act.
	Transition
Varieties of recent creation.	38. - (1) This section applies where, before the end of the period of 12 months beginning with the day on which this Part of this Act comes into force, an application for the grant of plant breeders' rights is made in respect of a variety-
	(a) which was in existence on the coming into force of this Part of this Act,
	(b) which is of a species or group which was not, immediately before the coming into force of this Part of this Act, prescribed by a scheme under Part I of the Plant Varieties and Seeds Act 1964 (grant of plant breeders' rights), and
	(c) to which paragraph 4(2) of Schedule 2 to this Act does not apply.
	(2) The variety to which the application relates shall, for the purposes of section 4(2) above, be deemed to be new if no sale or other disposal of propagating or harvested material of the variety for the purposes of exploiting the variety has, with the consent of the applicant, taken place earlier than 4 years, or, in the case of trees or vines, 6 years, before the day on which this Part of this Act comes into force.
	(3) Paragraph 4(4) and (10) of Schedule 2 to this Act shall also apply for the purposes of subsection (2) above.
	(4) If plant breeders' rights are granted by virtue of this section, the period for which the grant of those rights has effect shall be reduced by the period before the application since the first date on which a sale or other disposal of propagating or harvested material of the variety for the purposes of exploiting the variety took place in the United Kingdom with the consent of the applicant, less one year.

Prepared 12 June 1997