Chương XIV Luật Sở hữu trí tuệ 2005: Nội dung và giới hạn quyền đối với giống cây trồng

Chapter XIV

CONTENTS OF AND LIMITATIONS ON RIGHTS TO PLANT VARIETIES

Section 1. CONTENTS OF RIGHTS TO PLANT VARIETIES

Article 185. Rights of breeders of plant varieties

The breeder of a plant variety shall have the following rights:

1. To have his or her name as the breeder recorded in the plant variety protection certificate, the National Register of Protected Plant Varieties, and published documents on the plant variety.

2. To receive remuneration pursuant to the provisions of clause 1(a) of article 191 of this Law.

Article 186. Rights of protection certificate holders

1. A protection certificate holder shall have the right to exercise or authorize others to exercise the following rights to reproductive materials of a protected plant variety:

 (a) To conduct production or propagation;

 (b) To process the reproductive materials for the purpose of propagation;

 (c) To offer the reproductive materials for sale;

 (d) To sell the reproductive materials or to conduct other marketing activities;

 (dd) To export the reproductive materials;

 (e) To import the reproductive materials;

 (g) To stock reproductive materials for the purposes specified in sub-clauses (a) to (e) inclusive of this clause.

2. To prevent others from using the plant variety according to the provisions of article 188 of this Law.

3. To bequeath or transfer the rights to the plant variety according to the provisions of Chapter XV of this Law.

Article 187. Extension of rights of protection certificate holders

The rights of a protection certificate holder shall be extended to the following plant varieties:

1. Plant varieties which originate from the protected plant variety, except where such protected plant variety itself originates from another protected plant variety.

2. A plant variety shall be deemed to originate from a protected plant variety if such plant variety still retains the expression of the essential characteristics resulting from the genotype or combination of genotypes of the protected variety, except for differences resulting from an impact on the protected variety.

3. Plant varieties which are not definitely distinct from the protected plant variety.

4. Plant varieties, the production of which requires the repeated use of the protected plant variety.

Article 188. Acts constituting an infringement of the right to a plant variety

The following acts shall be deemed an infringement of the rights of a protection certificate holder:

1. Exploiting or using rights of such protection certificate holder without his or her permission.

2. Using a plant variety denomination which is identical or similar to a denomination protected for a plant variety of the same species or a species closely linked to the protected plant variety.

3. Using a protected plant variety without paying remuneration in accordance with article 189 of this Law.

Article 189. Provisional rights to plant varieties

1. Provisional rights to a plant variety means rights of the registrant for protection of such plant variety, which arise from the date of publication of the application for registration for protection until the date of grant of the plant variety protection certificate. Where a plant variety protection certificate is not granted for such plant variety, the protection registrant shall not [no longer] have these provisional rights.

2. Where the registrant is aware of the fact that the plant variety registered for protection is being used by another person for commercial purposes, the plant variety protection registrant may notify in writing such user of the fact that an application for registration for protection of the plant variety has been filed, clearly specifying the filing date and the date of publication of such application, so that the user may either stop using or continue using the plant variety.

3. Where a user who has been notified in accordance with clause 2 of this article continues using the plant variety, the plant variety protection certificate holder shall have the right, upon the grant of the certificate, to demand such plant variety user pay compensation equivalent to the licensing price of such plant variety within the corresponding use scope and duration.

Section 2. LIMITATIONS ON RIGHTS TO PLANT VARIETIES

Article 190. Limitations on rights of plant variety protection certificate holders

1. The following acts shall not be deemed an infringement of the right to a protected plant variety:

 (a) Using the plant variety for personal and non-commercial purposes;

 (b) Using the plant variety for cross-breeding for scientific research purposes;

 (c) Using the plant variety to create new plant varieties distinct from the protected plant varieties;

 (d) Using harvested materials of the protected plant variety by an individual production household for self-propagation and cultivation in the next season on the land area belonging to such household.

2. The right to a plant variety shall not be applicable to acts related to materials of the protected plant variety which are sold on or otherwise brought onto the domestic or overseas market by the protection certificate holder or his or her licensee, except for the following acts:

 (a) Acts relating to further propagation of such plant variety;

 (b) Acts relating to export of reproductive materials of such plant variety to countries where the genus or species of such plant variety is not protected, except where such materials are exported for consumption purposes.

Article 191. Obligations of protection certificate holders and breeders of plant varieties

1. A protection certificate holder shall have the following obligations:

 (a) To pay remuneration to the breeder of the plant variety as agreed upon; in the absence of such agreement, the remuneration level must comply with the provisions of law;

 (b) To pay the fee for maintenance of validity of the plant variety protection certificate in accordance with regulations;

 (c) To preserve the protected plant variety, to supply reproductive materials of the protected plant variety to the State administrative body for rights to plant varieties, and to maintain the stability of the protected plant variety in accordance with regulations.

2. The breeder of a plant variety shall be obliged to help the protection certificate holder to maintain reproductive materials of the protected plant variety.