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Protection Rights and Infringement Nature and Term of Plant Breeders' Rights
make repeated use (if such is necessary) of propagating material to commercially produce another variety; and if the variety is normally marketed for purposes other than propagation, to use such plants or parts thereof commercially as propagating material in the production of ornamental plants or cut flowers. There appears to be nothing in the Act that would prohibit, for example, a farmer from saving some of the seed of a harvest from a protected variety for replanting in the following year. Retaining seed is a common agricultural practice for crops such as wheat and soybeans, self-fertilizing and therefore true-breeding plants. The term of plant variety protection under the Act is 18 years, measured from the date of issuance of the certificate of registration. The holder must pay annual fees and must maintain propagating material throughout the period of registration. Licensing The Act contemplates the automatic licensing of plant breeders' rights which are granted in respect of certain categories of plants, to be prescribed by regulation. There is also provision for the Commissioner to grant compulsory licences, subject to the regulations. In disposing of an application for a compulsory licence, the Commissioner is to ensure that the plant variety is widely available at reasonable prices, and that the holder of the rights obtains a reasonable royalty. Remedies for Infringement Remedies include an award of an injunction, damages, an accounting of profits and delivery up of the infringing plants. International Protection for Plants An international convention (UPOV) exists in relation to plant breeders' rights applications filings that is similar in many respects to the Paris Convention for patents, trademarks and designs. The UPOV Convention facilitates the filing of counterpart foreign plant breeders' rights applications in other UPOV countries. Most principal market-economy countries are members of the UPOV Convention. In the United States, an additional form of protection is sometimes available, namely the plant patent. We shall be pleased to advise further about the availability of plant breeders' rights protection in other countries, or plant patent protection in the U.S. at your request. |
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here written constitutes legal advice. The accuracy of what is written
is not guaranteed. |
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