Variety Protection Act, 1994

No.7 — 163 — Variety Protection Law Passed in Riigikogu on March 9, 1994 Proclaimed by the President of the Republic by the Resolution No. 286 of March 24, 1994 (Riigi Teataja Part I 1994, No. 23, Art. 385) – In force from April 10, 1994 Chapter I GENERAL PROVISIONS Article 1. Purpose of this Law (1) Purpose of this Law shall be to establish the rules for granting variety protection and to secure the protection of the rights of the owner of the protected variety. (2) This Law applies to varieties from genera and species, decreed by the Minister of Agriculture. Article 2. Definitions For the purposes of this Law: 1) "Variety" means a plant grouping with economically, biologically and morphologically similar characteristics and with a given genotype or combination of genotypes, and which, irrespective of whether the conditions for the grant of variety protection are fully met, distinguish from any other plant grouping of the same botanical taxon by the expression of at least one characteristic, and considered, that the characteristics will be stable during the further generations. A variety can be represented by group of plants, by one plant, by one or several parts of a plant and by a seed, provided that it will be used for the propagation of the variety. Categories of a variety are clone, line, hybrid of first generation and population; 2) "Protected variety" means a variety, for which protection is granted in Estonia; 3) "Breeder" means an author of a new, bred or discovered variety or a group of such persons, in case the variety is bred or discovered by their collective work; 4) "Owner" means the breeder of the variety, or a person who has employed the breeder, or a person who has commissioned the breeder's work; 5) "Certificate of Protection" means a document, the form of which is fixed by the Variety Inspection, which confirms the rights of the owner of the protected variety and where the term of validity of the protection of the variety is fixed; 6) "Register of Protected Varieties" means a state register, which contains varieties certified to meet the conditions of granting of the protection; 7) "National List of Varieties" means a list of varieties eligible for sale and for multiplication for the purpose of sale in Estonia, as confirmed by the Minister of Agriculture; 8) "Essentially derived variety" means a variety distinguishable from the initial variety, but inheriting essential characteristics of the initial variety, and which is bred using methods enabling to retain the genotype or the combination of genotypes of the initial variety; 9) "Seed" means a plant or a part of it used for propagation of the variety; 10) "Plant material" means plants or parts of them used for the purposes other than propagation of the variety; 11) "Variety of common knowledge" means a variety which has been used in production processes, has been offered for sale, has been entered in official catalogues or reference stocks and has been described in publications. A variety shall be of common knowledge from the date of filing application for granting protection or for entering in the National List of Varieties, provided that the application leads to the granting of protection or to the entering in the National List of Varieties of that variety; 12) "Application" means a collection of documents for granting of the protection for a variety and obtaining the rights of the owner of the protected variety; 13) "Person" means a natural or legal person in Estonia or abroad; 14) "Representative" means a citizen of Estonia residing in Estonia or a legal person registered in Estonia, authorized by the foreign owner to represent his interests in the process of granting protection for or using of his variety. Chapter II CONDITIONS FOR GRANTING PROTECTION FOR A VARIETY Article 3. Conditions for Granting Protection for a Variety Protection shall be granted for a variety where the variety is: 1) novel; — 164 — No. 7 2) distinct; 3) uniform; 4) stable; 5) designated by a suitable denomination. Article 4. Novelty The variety shall be deemed to be novel if: 1) at the date of filing of the application for a protection, seeds or plant material of the variety has not been sold or otherwise disposed of for productional exploitation, by or with consent of the breeder, in the territory of Estonia earlier than one year; 2) at the date of filing of the application for a protection, seeds or plant material of the variety has not been sold or otherwise disposed of for productional exploitation, by or with consent of the breeder, outside Estonia earlier than four years and, in case of dendrological material, fruit trees or berries, earlier than six years. Article 5. Distinctness (1) The variety shall be deemed to be distinct if it is clearly distinguishable by one or several characteristics from any other variety whose existence is a matter of common knowledge at the time of filing of the application. (2) Typical characteristics must enable precise description and distinction of the variety. Article 6. Uniformity The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its category or propagation, the plants of such variety are uniform in its characteristics. Article 7. Stability The variety shall be deemed to be stable if, after each propagation or cycle of propagation determined by the owner, the plants of the variety retain the characteristics given in the variety description. Article 8. Variety Denomination (1) The variety for which the protection has been applied shall be designated by a denomination, appealed by the owner to the Variety Inspection. (2) The denomination of the variety: 1) must enable the variety to be identified; 2) must be short and memorable; 3) must be different from every denomination which designates a variety of common knowledge of the same or closely related botanical species; 4) may not consist solely of figures or mislead concerning the characteristics, identity or the purposes of utilization of the variety or the identity of the breeder. (3) In case the variety for which the protection has been applied proves to be the variety of common knowledge, the protection shall be applied for such a variety under the denomination confirmed before. (4) In case of applying for the protection simultaneously in Estonia and abroad, the same variety denomination has to be used. (5) If the variety denomination submitted by the owner appears not to satisfy the requirements of paragraphs 2--4 of this Article, another denomination must be submitted by the owner within the period of one month. (6) After granting of the protection the users of the variety are obliged to use the denomination submitted and confirmed to such variety. (7) If after granting of the protection for the variety the variety denomination appears not to satisfy the requirements of paragraph 2 item 3 of this Article, another denomination must be submitted by the owner within the period of one month from the date of receiving the appropriate notification. Chapter III APPLICATION FOR THE VARIETY PROTECTION Article 9. Right to Apply for the Variety Protection (1) Application shall be submitted to the Variety Inspection. (2) The owner shall be entitled to apply for the variety protection. No.7 — 165 — (3) Foreign natural or legal person shall apply for the variety protection only through a representative. Article 10. Application (1) Application must contain the following documents: 1) petition in a particular form confirmed by the Variety Inspection for granting protection for a variety, containing data about the breeder and the owner of the variety; 2) variety description in a particular form confirmed by the Variety Inspection; 3) document confirming the entitlement to apply. (2) Application shall contain only one variety. (3) Application shall be written in the Estonian language. Article 11. Priority (1) Priority for applying for variety protection shall be computed from the date of filing the application with the Variety Inspection. (2) If the owner has filed another application ("first application") for the protection of a variety in a state that has an agreement in the field of variety protection with the Republic of Estonia, before applying for the protection in the Variety Inspection, the right of priority may be fixed at the owner's request on the date of filing the first application. In that case the application must be filed in the Variety Inspection within the period of 12 months from the date of filing the first application. The owner must submit the copy of the first application as attested by the appropriate state and by request the translation of the latter into Estonian or English to the Variety Inspection during the period of next 3 months. (3) The owner shall be allowed, within a period of two years after the expiration of 12 months from the date of filing or rejecting the first application or refusal of granting protection, to furnish any additional documents or specifying materials. (4) Following the directions of paragraph 2 of this Article, events occurring within the period of 12 months, such as filing of another application or publication of data about the variety being the subject of the first application, shall be ignored. Such events shall not give rise to any third-party right. Article 12. Preexamination of the Application (1) Preexamination of the application shall be carried out by the Variety Inspection within a period of one month from the date of filing the application, provided the appropriate fee has been paid. Preexamination consists in determining the priority, checking the existence and right filling of necessary documents. (2) Variety Inspection shall be entitled to require additional documents or specifying materials. Such requirements are obligatory for the owner and must be fulfilled by him within a period of one month from the date of receiving the appropriate demand. (3) If additional documents or specifying materials are not filed within the scheduled time, the application shall be rejected and the owner shall be informed. The paid fee shall not be refunded. (4) The decision from the preexamination may be disputed by the owner in the court. (5) In case of a positive decision of the preexamination the owner shall be informed by the Variety Inspection about acceptance of the variety to the state expertise and tests for the verification of the requirements for granting the protection for a variety. Article 13. Examination of Novelty (1) On the basis of the materials of the submitted application the variety shall be examined for novelty by the Variety Inspection, provided that the appropriate fee has been paid. (2) Data about the filed application shall be published in a publication confirmed in accordance with paragraph 2 item 4 of Article 27 of this Law within the period of one month. Any person may contest the decision concerning the novelty of the variety within a time limit of six months from the date of publication of the application. The owner will be informed about the objections. The owner shall submit a motivated answer to the Variety Inspection within a period of three months from receiving the appropriate notification. The decision based on the relevant material shall be made by the Variety Inspection within a period of three months, of which the owner and the objector shall be notified. (3) If the variety does not fulfil the requirement of novelty, a decision of refusal from granting of the protection for the variety shall be made by the Variety Inspection. — 166 — No. 7 Article 14. Testing of Distinctness, Uniformity and Stability (1) Testing of distinctness, uniformity and stability of the variety shall be carried out within the time limit and using methods confirmed by the Variety Inspection provided that the appropriate fee has been paid. The Variety Inspection may relinquish the testing of distinctness, uniformity and stability, if such testing has already been carried out either by the Variety Inspection or by the appropriate authority of another state. If the testing is relinquished the fee paid shall not be subject to repayment. (2) Variety Inspection shall be entitled to apply the results of tests made by the organizations having contractswith the Variety Inspection or by the appropriate authorities of another state. (3) Where the variety does not fulfil the requirement of distinctness, uniformity or stability, the decision of refusal from granting of the protection for the variety shall be made by the Variety Inspection. Article 15. Provisional Protection of Variety (1) Variety shall enjoy the provisional protection from the date of filing of the application in the Variety Inspection to the date of granting of the protection. (2) The provisional protection does not prohibit the exploitation of the variety for scientific goals and for the production of seeds to the order of the owner. (3) Where the variety is being used for the activities listed in paragraphs 1–3 of Article 17 of this Law during the period of the provisional protection by the owner or with the consent of the owner, the provisional protection shall not be valid (4) In case the provisional protection is granted for the variety, the owner shall be entitled to equitable remuneration from any person who, during the period of the provisional protection, carried out activities which are listed in paragraphs 1–3 of Article 17 of this Law. Chapter IV GRANT OF THE VARIETY PROTECTION, SCOPE OF THE PROTECTION, CANCELLING AND TERMINATION OF THE PROTECTION Article 16. Grant of the Variety Protection (1) If in the course of the expertise and the experiments made, the variety proves to meet the conditions for granting of the protection in accordance with Article 3 of this Law, the decision of granting of the protection shall be made by the Variety Inspection, whereof the owner shall be notified. (2) Upon granting the protection the variety shall be registered in the Register of Protected Varieties and the Certificate of Protection shall be issued by the Variety Inspection within the period of one month from the date of granting of the protection, provided that fees for registering of the variety and issuing of the Certificate of Protection have been paid. (3) In case the Variety Inspection refuses from granting of the protection for the variety, the owner shall be notified within a period of one month. The decision of refusal from granting of the protection may be disputed in the court. Article 17. Scope of the Protection (1) Any person shall be obliged to secure authorization (the licence) of the owner for the use of the seeds of the protected variety with a view to: 1) production and propagation for the purposes of sale; 2) conditioning for the propagation for the purposes of sale; 3) offering for sale; 4) selling or otherwise bringing into economic circulation; 5) exporting; 6) importing; 7) stocking for any of the above-mentioned purposes. (2) Any person shall be obliged to secure authorization (the licence) of the owner for the use of the seeds or plant material of the protected variety, if: 1) this person breeds an essentially derived variety, wishing to use the protected variety in the breeding; No.7 — 167 — 2) this person has bred a variety, the production of the seeds whereof requires repeated use of the protected variety. (3) Seeds and plant material of the protected variety marketed by or with the consent of the owner may be subject to any exploitation but exporting to the countries where the protection does not extend to such a botanical genus or species, except exporting of the plant material for the final consumption. (4) Protected variety may be exploited without the authorization of the owner: 1) in scientific work and state testing for value for cultivation and use; 2) for breeding new varieties, except the case described in paragraph 2 of this Article; 3) for private and non-commercial goals. (5) The protection shall be ensured for a variety by this Law and other Estonian laws and legal acts. (6) Variety protection granted in Estonia shall be valid for a period of 25 years, in case of dendrological material, fruit trees and berries, including their stocks in grafting, for a period of 35 years from the date of granting of the protection. The variety protection shall be subject to annual payment of the prescribed fee. (7) Time limit of the protection as given in paragraph 6 of this Article may be extended by the Variety Inspection for maximum 10 years. The applicant for such an extension shall be obliged to pay the prescribed fee. Article 18. Cancellation of the Protection (1) A petition submitted to the Variety Inspection shall serve as a ground for the cancellation of the variety protection. (2) Variety Inspection shall send a copy of the petition to the owner who shall furnish his position within the period of three months from the date of receiving the copy of the petition. (3) Decision shall be made by the Variety Inspection within a period of six months from the date of filing the petition, unless a need for additional tests occurs. (4) Variety protection can be cancelled by the Variety Inspection if the following have been ascertained: 1) at the moment of granting of the protection the variety did not fulfil the requirements of novelty or distinctness; 2) at the moment of granting of the protection the variety did not correspond to the data concerning the uniformity or stability as submitted in the application; 3) the person, to whom the Certificate of Protection has been issued, was not entitled to apply for the protection. (5) Cancellation of the protection shall be accompanied by the exclusion of the variety from the Register of Protected Varieties and by the cancellation of the Certificate of Protection. (6) Variety Inspection shall publish the note about the cancellation of the variety protection in a publication confirmed in accordance with paragraph 2 item 4 of Article 27 of this Law. (7) Decision of the cancellation of the variety protection made by the Variety Inspection may be disputed in the court. Article 19. Termination of the Protection (1) Variety protection shall terminate due to the expiry of the term fixed for the protection. (2) Variety Inspection may terminate the protection of the variety if the following occurs: 1) the owner makes a written denunciation; 2) the variety no longer corresponds to the characteristics given in the variety description; 3) the owner has not furnished seeds, documents or information to the Variety Inspection, needed for the post-control of the maintenance of the variety or, the owner does not enable the local post-control of the maintenance of the variety; 4) the owner has not paid the annual fee for the variety protection within the time limit; 5) the owner has not submitted a new variety denomination in accordance with paragraph 7 of Article 8 of this Law. (3) Termination of the protection shall be accompanied by the exclusion of the variety from the Register of Protected Varieties and by the invalidation of the Certificate of Protection. (4) A notice about the termination of the variety protection shall be published in a publication confirmed in accordance with paragraph 2 item 4 of Article 27 of this Law. (5) Decision on the termination of the variety protection made by the Variety Inspection may be disputed in the court. — 168 — No. 7 Chapter V RIGHTS AND OBLIGATIONS OF THE OWNER OF THE PROTECTED VARIETY Article 20. Rights of the Owner of the Protected Variety (1) The owner of the protected variety shall have the exclusive right to use the variety as provided in paragraphs 1--3 of Article 17 of this Law. (2) The owner of the protected variety shall be entitled to transfer the right of use of the protected variety to another person by the licence agreement concluded in accordance with Article 22 of this Law. (3) The owner of the protected variety shall be entitled to the royalty, if the variety is used for the activities provided in paragraphs 1--3 of Article 17 of this Law. (4) The owner of the protected variety shall have the right to make denunciations for cancellation and termination of the protection, as provided in paragraph 1 of Article 18 of this Law and in paragraph 2 point 1 of Article 19 of this Law, respectively. Article 21. Obligations of the Owner of the Protected Variety After granting of the protection for a variety, the owner of such variety shall be obliged: 1) to maintain the variety during the term of validity of the protection and to ensure the preservation of the characteristics as given in the variety description; 2) to furnish the Variety Inspection on demand of the latter with seeds in a quantity needed for the control tests according to the appropriate methods and, with any necessary documents or information needed for the post-control of the maintenance of the variety; 3) to pay the prescribed fee for the variety protection. Chapter VI LICENCES Article 22. Licence (1) Licence shall mean an agreement by which the owner's (the licenser's) right of use of the protected variety shall be transferred to another person (the licensee) either free of charge or provided that the licensee pays royalties. (2) Licence shall be done in writing. (3) The licence must contain the following: 1) denomination and description of the appropriate variety; 2) scope, task and manner of the exploitation of the variety; 3) territory of exploiting the variety; 4) term of validity of the licence and date of initial use; 5) conveyable rights; 6) kind of the licence (ordinary, exclusive) and the authorization of the remission of the right of use (sub licence); 7) restrictions imposed on the use of the variety concerning third persons; 8) amount, date and manner of paying royalties; 9) responsibility of both parties for nonfulfillment of the conditions of the licence; 10) other conditions agreed by both parties. Article 23. Rights of the Licenser The licenser shall be allowed to grant other licences on the same conditions and shall not be prevented from exploitation of the variety, unless forbidden by the conditions of the licence. Article 24. Rights of the Licensee (1) The licensee shall have the right to exploit the protected variety for the purposes listed in paragraphs 1--4 in Article 17 of this Law during the period of validation of the licence, if not otherwise prescribed in the conditions of the licence. (2) The licensee may neither transfer nor sell the right of use of the protected variety, unless so provided in the conditions of the licence. No.7 — 169 — (3) Conditions of the licence not provided in Article 17 of this Law and restricting the activities of the licensee, shall be null and void. Article 25. Open Licence (1) The owner of the protected variety shall have the right to publish a notice in the publication confirmed in accordance with paragraph 2 item 4 of Article 27 of this Law, that any person may exploit this certain protected variety (open the licence), having informed the owner and paid the royalty prescribed in the notice. (2) Annual fee paid by the owner for the variety protection shall be reduced up to 50% from January 1st of the year following the opening of the licence. (3) The owner of the protected variety shall have the right to cancel the open licence by the consent of all licensees publishing an appropriate notice in a publication confirmed in accordance with paragraph 2 item 4 of Article 27 of this Law. Article 26. Compulsory Licence (1) Government of the Republic shall have the right, at the suggestion of the Ministry of Agriculture, to grant compulsory licences for the varieties protected in Estonia, if: 1) exploitation of the protected variety is necessary in the interests of the state; 2) the owner of the protected variety has not made any agreements concerning the licences or otherwise enabled the use of the variety within a period of three years from the date of granting of the protection for the variety. (2) Compulsory licence may provide all activities listed in this Law. (3) Amount of obligatory remuneration to be paid by the licensee to the owner of the protected variety shall be determined when granting the compulsory licence. (4) The owner of the protected variety must, on demand of the Variety Inspection, furnish the owner of the compulsory licence with seeds in a quantity sufficient for the use of the compulsory licence. (5) Compulsory licence shall be granted for maximum four years. This time limit may be extended if it becomes evident that conditions for granting of compulsory licence have not changed. (6) Compulsory licence shall be cancelled if the licensee does not fulfil the requirements agreed on grant of the compulsory licence. (7) Decision on granting of the compulsory licence may be disputed in the court. Chapter VII VARIETY INSPECTION Article 27. Rights and Obligations of the Variety Inspection as Proceeding from this Law (1) The tasks provided in this Law in the field of variety protection shall be exercised by the Ministry of Agriculture through the Variety Inspection. (2) Variety Inspection shall confirm: 1) the form of the application for the variety protection; 2) the form of the variety description; 3) the form of the Certificate of Protection; 4) the name of the publication where the information listed in paragraph 3 of this Article shall be published. (3) Variety Inspection shall publish the following information: 1) filing of the applications with the date of priority, name of the owner, variety denomination, main characteristics of the variety and name of the breeder; 2) decisions made on the applications; 3) changing of the variety denomination; 4) cancellation of the variety protection and the Certificate of Protection; 5) termination of the variety protection and invalidation of the Certificate of Protection; 6) other information concerning the variety protection. (4) Variety Inspection shall keep the Register of Protected Varieties. (5) Officials of the Variety Inspection shall neither have the right to apply for the variety protection during the period of employment in the Variety Inspection, nor during a period of five years after the end of the employment in the Variety Inspection. — 170 — No. 7 Chapter VIII PROTECTION OF THE RIGHTS OF THE OWNER OF THE PROTECTED VARIETY AND RESPONSIBILITY FOR BREAKING THIS LAW Article 28. Protection of the Rights of the Owner of the Protected Variety (1) Any person shall be deemed as violator of the rights of the owner of the protected variety if he: 1) discloses the business secret inherent in the application. The latter shall not apply to the enunciation of the data to the officials engaged in observing the rights and obligations of the owner of the protected variety in accordance with paragraph 1 of Article 30 of this Law; 2) uses the variety under the denomination different from the denomination given by the owner and attached to that variety; 3) uses the denomination of the protected variety or a resembling denomination when designating seeds or plant material of a new variety; 4) submits false data in documents concerning seeds or plant material of the protected variety; 5) ignores the rights of the owner of the protected variety as listed in Article 20 of this Law. (2) In case of infringement of the rights of the owner of the protected variety in accordance with paragraph 1 of this Article, the rights of the owner shall be protected by: 1) recognition of the rights; 2) termination of the infringing activities; 3) restoring the status quo before the infringement commenced; 4) constraining to fulfil the requirements of the licence or cancellation of the licence; 5) abating the consequences of the infringement; 6) adjudgement of the compensation for the moral damage; 7) adjudgement of the incomes of the violator of the rights for the benefit of the sufferer; 8) recovery of the damage; 9) other measures provided by the legislation. (3) If seeds or plant material of the protected variety have been used violating the rights of the owner of the protected variety as prescribed in Article 20 of this Law, the owner of the protected variety shall have the right to demand destruction of such seeds or plant material or transfer to him. (4) The provisions of paragraph 1 of this Article shall not extend to the persons who have acquired seeds or plant material of the protected variety in good faith. These persons may use such seeds or plant material for their own use only. Article 29. Responsibility for Breaking this Law Breaking this Law shall involve the responsibility foreseen in the legislation of the Republic of Estonia. Article 30. Supervision (1) Protection of the rights of the owner of the protected variety in accordance with Article 28 of this Law shall be supervised by the Variety Inspection; Variety Inspection shall inform the owner of the protected variety about the detection of the infringement within a period of one month. (2) In case of infringement of the rights of the owner of the protected variety the Variety Inspection may act as a conciliator upon the request of one or both parties. If the parties shall not come to an agreement or one party shall not fulfil such agreement, the matter shall be disputed in the court. Chapter IX INTERSTATE PROTECTION OF VARIETIES Article 31. Interstate Protection of Varieties (1) This Law shall extend to the varieties bred abroad or which breeder is a natural or legal person of a foreign state only if an agreement in the field of variety protection has been struck up between the Republic of Estonia and the appropriate foreign state. (2) Exploitation of the varieties, to which the protection has been granted in Estonia, in a foreign country shall be the subject to the legislation of the appropriate country. No.7 — 171 — Article 32. Validity of International Agreements Where the provisions of foreign treaties of the Republic of Estonia or international convention acceded by Estonia differ from the provisions of this Law, the provisions of the foreign treaty or international convention shall be superior. Chapter X TRANSITIONAL PROVISIONS Article 33. Application of the Law (1) At the moment of the enforcement of this Law varieties that are provided with the certificate issued by the Ministry of Agriculture of the former USSR (hereinafter referred to as "certificate"), shall be deemed to be of common knowledge from the date of issuing the certification. For the varieties to which the certification has been issued not earlier than 25 years, in case of the dendrological material, fruit trees and berries not earlier than 35 years before the entry into force of the present Law, protection may be granted in a general way. In this case neither the novelty shall be examined nor the tests of distinctness, uniformity and stability carried out; protection granted for such varieties shall only be valid on the territory of Estonia, irrespective of the international agreements, and a special note shall be made on the Certification of Protection of such variety. (2) For the varieties under the state value tests at the moment of enforcement of this Law, but for which no certificate has been issued yet, protection may be granted in a general way, but such varieties shall not be subjected to the requirement of novelty. (3) Varieties inherent in the National List of Varieties at the moment of enforcement of this Law, but without any certificate issued, shall be deemed to be of common knowledge from the moment of taking into the National List of Varieties. For the varieties being taken into the National List not earlier than 25 years, in case of dendrological material, fruit trees and berries not earlier than 35 years before the said moment, a protection may be granted in a general way, but such varieties shall not be subjected to the requirement of novelty. (4) Ministry of Agriculture shall confirm the regulations for selling, exporting and importing as well as the use in the production of the seeds of the protected varieties. (5) Code of Violations of Administrative Law (RT 1992, No. 29, Art. 396; 1993, 7, 103; Part I 1993, 33, 539; 44, 637; 62, 891; 72/73, 1019; 76, 1129; 1994, 1, 5; 12, 202) shall be amended and a new Article 2071 shall be added as follows: "Article 2071. Officials of Variety Inspection (1) The officials of the Variety Inspection shall be entitled to discuss matters concerning the violations of the Administrative Law (in respect of variety protection) as enumerated in Article 137 of the present Code. (2) The right to apply administrative penalties rests with the director of the Variety Inspection and a senior inspector, authorized by the director." Chairman of the State Assembly Ülo NUGIS