Plant Breeding Certificates
LexInter | July 8, 2017 | 0 Comments

Plant Breeding Certificates

Section 1: Issuance of plant variety certificates

Article L623-1

   For the purposes of this chapter, the new variety, created or discovered, is called “plant variety”:
1 ° Which differs from analogous varieties already known by an important, precise and little fluctuating character, or by several characteristics whose combination is of a nature to give it the quality of a new variety;
2 ° which is homogeneous for all of its characteristics;
3 ° which remains stable, that is to say identical to its initial definition at the end of each cycle of multiplication.

Article L623-2

   Plant varieties of a genus or species benefiting from the protection regime established by the provisions of this chapter are not patentable.

Article L623-3

   Any plant variety that meets the conditions of Article L. 623-1 is defined by a name to which a description and a control copy correspond to a collection.

Article L623-4

   Any new plant variety may be the subject of a title called a “plant variety certificate”, which confers on its holder an exclusive right to produce, to introduce into the territory where this chapter is applicable, to sell or to offer in sale of all or part of the plant, or all elements of plant reproduction or multiplication of the variety in question and of the varieties resulting from it by hybridization when their reproduction requires repeated use of the initial variety.
Decrees in the Council of State progressively make the provisions of the preceding paragraph applicable to the various plant species according to the development of scientific knowledge and means of control. These same decrees determine for each plant species the elements of the plant to which the breeder’s right relates.

Article L623-5

   The obtention which, in France or abroad, and prior to the filing date of the application, has received sufficient publicity to be used, or which is described in a certificate application, or which is described in a certificate application, is not deemed to be new. in a French certificate not yet published or in an application filed abroad and benefiting from the priority provided for in Article L. 623-6.
However, does not in any way constitute a disclosure likely to destroy the novelty of the variety either its use by the breeder in his trials or experiments, or its inclusion in a catalog or in an official register of a State party to the Convention. of Paris of December 2, 1961 for the protection of plant varieties, or its presentation in an official or officially recognized exhibition within the meaning of the convention concerning international exhibitions, signed in Paris on November 22, 1928 and amended on May 10, 1948.
Is not nor likely to destroy the novelty of the variety disclosure which constitutes a marked abuse of the breeder.

Article L623-6

   Any person having the nationality of one of the States party to the Paris Convention of December 2, 1961 or having his domicile or establishment in one of these States may apply for a plant variety certificate for varieties belonging to the genera or species listed on the list annexed to this convention or on a complementary list drawn up in application of the provisions thereof.
It may, when filing in France an application for a variety certificate, claim the benefit of the priority of the first application previously filed for the same variety in one of the said States by itself or by its author, at provided that the deposit made in France is not more than twelve months later than that of the first request.
The validity of breeder’s certificates for which the application has been filed under the conditions provided for in the previous paragraph shall not be enforceable against events occurring within the priority period such as another filing, publication of the subject of the application or the exploitation of the variety in question.
Apart from the cases provided for in the first paragraph, any foreigner may benefit from the protection instituted by this chapter, provided that the French benefit, for the genera and species in question, from the reciprocity of protection on the part of the State of which he is has nationality or in which he has his domicile or establishment.

Article L623-7

   The certificate issued by the plant variety protection committee mentioned in Article L. 412-1 takes effect on the date of the request. Any decision to reject an application must be motivated.

Article L623-8

   The Minister in charge of Defense is empowered to examine, on a confidential basis, requests for certificates from the Committee for the Protection of New Varieties of Plants.

Article L623-9

   The list of plant species whose varieties are the subject of certificate applications cannot be freely disclosed and exploited without special authorization is set by regulation.
Subject to Article L. 623-10, this authorization may be granted at any time. It is automatically acquired at the end of a period of five months from the date of filing of the certificate request.

Article L623-10

   Before the end of the period provided for in the last paragraph of Article L. 623-9, the prohibitions prescribed in the first paragraph of said article may be extended, at the request of the Minister responsible for defense, for a period of one year, renewable. Extended bans can be lifted at any time under the same condition.
The extension of the prohibitions pronounced by virtue of this article gives rise to the right to compensation for the benefit of the holder of the certificate request, to the extent of the damage suffered. In the absence of an amicable agreement, this compensation is fixed by the judicial authority.

Article L623-11

   The certificate holder may request a review of the compensation provided for in Article L. 623-10, after the expiry of the one year period following the date of the final judgment fixing the amount of the compensation.
The certificate holder must provide proof that the damage he suffers is greater than the court’s estimate.

Article L623-12

   The certificate is only issued if it results from a preliminary examination that the variety which is the subject of the application for protection constitutes a plant variety in accordance with Article L. 623-1.
However, the committee may consider as sufficient the preliminary examination carried out in another country party to the Paris Convention of 2 December 1961.
This committee may call on foreign experts.

Article L623-13

   The duration of the certificate is twenty years from its issue. It is fixed at twenty-five years if the constitution of the elements of production of the species requires long delays.

Article L623-14

   The acts relating to either the issuance of the certificate, or the transfer of property, or the concession of the right of exploitation or of pledge, relating to a breeding certificate, are only enforceable against third parties if they have been duly published under the conditions provided for by a decree in the Council of State.

Article L623-15

   The certificate designates the obtaining by a denomination allowing, without confusion or ambiguity, its identification in all the States parties to the Paris Convention of December 2, 1961.
The breeder is required to permanently keep a vegetative collection of the protected variety. .
A description of the new variety is appended to the variety certificate.
The certificate is enforceable against third parties upon publication.
The name given on the certificate becomes compulsory as soon as it is published for any commercial transaction, even after the expiry of the term of the certificate.
The denomination conferred on the said variety may not be the subject of a trademark registration in a State party to the Paris Convention of December 2, 1961. Such registration may however be made as a precaution, without impeding the issuance of the breeder’s certificate, provided that proof of the waiver of the effects of this deposit in the States parties to the convention is produced prior to the issuance of the said certificate.
The requirements of the above paragraph do not prevent a trade mark from being added to the denomination of the variety in question for the same variety.

Article L623-16

   The preliminary examination, the issuance of the certificate and all acts of registration or cancellation give rise to the payment of fees for services rendered.
A fee is paid annually for the duration of the certificate’s validity.
The scale of these fees is set by regulation.
The proceeds of these royalties are credited to a special section of the budget of the National Institute of Agronomic Research.

Section 2: Rights and obligations attached to plant variety certificates

Article L623-17

   A variety essential for human or animal life may be subject to the system of automatic licensing by decree of the Council of State or, when it concerns public health, by joint order of the Minister of Agriculture and the Minister in charge. of public health.

Article L623-18

   From the day of publication of the decree submitting breeder’s certificates to the system of ex officio licensing, any person presenting technical and professional guarantees may apply to the Minister of Agriculture for the granting of a license for operation.
This license can only be non-exclusive. It is granted by decree of the Minister of Agriculture under conditions determined in particular as regards its duration and its field of application, but to the exclusion of the royalties to which it gives rise.
It takes effect on the date of notification of the order to the parties.
In the absence of an amicable agreement, the amount of the royalties is fixed by the judicial authority, determined in accordance with article L. 623-31.

Article L623-19

   If the holder of an ex officio license does not meet the required conditions, the Minister of Agriculture may, after consulting the Committee for the Protection of New Varieties of Plants, revoke it.

Article L623-20

   The State may obtain ex officio, at any time, for the needs of national defense, a license to operate a plant variety that is the subject of an application for a certificate or a plant variety certificate, whether this exploitation is made by himself or on his behalf.
The ex officio license is granted, at the request of the minister in charge of defense, by order of the minister of agriculture. This decree sets the conditions of the license to the exclusion of those relating to the royalties to which its use gives rise. The license takes effect on the date of the ex officio license application.
In the absence of an amicable agreement, the amount of the royalties is fixed by the judicial authority, determined in accordance with article L. 623-31.

Article L623-21

   The rights attached to an ex officio license cannot be assigned or transferred.

Article L623-22

   The State may, at any time, by decree, expropriate in whole or in part for the needs of national defense plant varieties, the subject of requests for certificates or certificates.
In the absence of an amicable agreement, the compensation for expropriation is fixed by the tribunal de grande instance.

Article L623-23

   Any holder of a plant
variety certificate is forfeited: 1 ° Who is unable to present to the administration at any time the elements of reproduction or vegetative propagation, such as seeds, cuttings, grafts, rhizomes, tubers, allowing the protected variety to be reproduced with the morphological and physiological characteristics as defined in the breeding certificate;
2 ° Who refuses to submit to inspections carried out with a view to verifying the measures he has taken for the conservation of the variety;
3 ° Who has not paid within the prescribed period the annual fee referred to in the second paragraph of Article L. 623-16.
The forfeiture is recorded by the committee for the protection of plant varieties. When it is noted under 3 ° above, the holder of the certificate may, within six months following the end of the period provided for, submit an appeal for the restoration of his rights if he can justify a lawful excuse for failure to pay royalties. However, this recourse may not infringe the rights acquired, if any, by third parties.

Article L623-24

   The provisions of Articles L. 613-8 and L. 613-29 to L. 613-32 are applicable to applications for plant variety certificates and variety certificates.
The same applies to Articles L. 613-9, L. 613-21 and 613-24, the Committee for the Protection of New Varieties of Plants replacing the National Institute of Industrial Property.

 Section 3: Legal actions

Article L623-25

   Any infringement of the rights of the holder of a plant variety certificate as defined in Article L. 623-4 constitutes an infringement involving the civil liability of its author.
Subject to the provisions of Article L. 623-4, the use of the protected variety as a source of initial variation with a view to obtaining a new variety does not constitute an infringement of the rights of the holder of a variety certificate. .
The holder of an ex officio license referred to in Articles L. 623-17 and L. 623-20 and, unless otherwise stipulated, the beneficiary of an exclusive right of exploitation, may exercise the liability action provided for in the first paragraph above if, after a formal notice, the certificate holder does not exercise this action.
The holder of the certificate is admissible to intervene in the proceedings initiated by the licensee in accordance with the previous paragraph.
Any holder of a license is admissible to intervene in the proceedings initiated by the holder of the certificate in order to obtain compensation for the damage which is specific to him.

Article L623-26

   The facts prior to the publication of the issue of the certificate are not considered to have infringed the rights attached to the certificate. However, facts subsequent to the notification to the presumed manager of a certified copy of the certificate request may be observed and prosecuted.

Article L623-27

   The owner of an application for a breeding certificate or a certificate is entitled to have a detailed description made, with or without actual seizure, of all plants or parts of plants, of all elements, with legal authorization. of reproduction or vegetative multiplication allegedly obtained in disregard of its rights. This right is open to the concessionaire of an exclusive operating right or to the holder of an ex officio license under the condition set out in the third paragraph of Article L. 623-25.
If the applicant fails to appeal to the court within the time limit set by regulation, the description or seizure is automatically void, subject to damages which may be claimed if necessary.

Article L623-28

   The court may, at the request of the injured party, order in favor of the latter the confiscation of plants or parts of plants, elements of reproduction or vegetative propagation obtained in violation of the rights of the holder of a breeder’s certificate. and, where appropriate, that of instruments specially intended for the reproduction cycle.

Article L623-29

   The civil and penal actions provided for in this chapter are prescribed by three years from the facts which gave rise to them.
The initiated civil action suspends the prescription of the criminal action.

Article L623-30

   When a variety which is the subject of an application for a certificate or a variety certificate is exploited for the needs of national defense by the State or its suppliers, subcontractors and holders of sub-orders, without a operating license has been granted to them, the court seised may order neither the cessation or interruption of the operation, nor the confiscation provided for in Article L. 623-28.
If an expert report or a description, with or without actual seizure, is ordered by the president of the court seized, the public officer committed must suspend the seizure, the description and any research in the company if the contract of studies or reproduction or multiplication carries a defense security classification.
It is the same if the studies, the reproduction, the multiplication are carried out in an establishment of the armies.
The president of the court seised may, if so requested by the beneficiary, order an expert report which can only be carried out by persons approved by the Minister in charge of defense and in front of his representatives.
The provisions of Article L. 623-26 are not applicable to applications for plant variety certificates used under the conditions defined in this article as long as these requests are subject to the prohibitions provided for in Articles L. 623-9 and L. 623-10.
Such exploitation automatically incurs the liability defined in this article on its authors.

Article L623-31

   All disputes arising from this chapter are assigned to the high courts and to the courts of appeal to which they are attached, with the exception of appeals against decrees and ministerial orders and decisions which come under administrative jurisdiction.
The Paris Court of Appeal directly hears appeals against decisions of the Committee for the Protection of New Varieties of Plants taken in application of this chapter.
The competent high-level courts, the number of which may not be less than ten, and the jurisdiction in which these courts exercise the powers which are thus vested in them, are determined by regulation.

Article L623-32

(Law nº 92-1336 of December 16, 1992 art. 322 Official Journal of December 23, 1992 in force on March 1, 1994)
(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

Any knowingly infringement of the rights of the holder of a plant variety certificate, as defined in Article L. 623-4, constitutes an offense punishable by a fine of 3,750 euros. In the event of a repeat offense, imprisonment for six months may also be imposed. There is a recidivism, within the meaning of this article, when a conviction for the same offense has been handed down against the accused in the five previous years.

Article L623-33

   Public action for the application of the penalties provided for in the preceding article can only be exercised by the public prosecutor upon complaint from the injured party.
The correctional court seised can only rule after the civil court has established the reality of the offense by a decision which has become final. The exceptions made by the defender of invalidity of the breeding certificate or questions relating to the ownership of said certificate can only be raised before the civil court.

Article L623-34

(Law nº 92-1336 of December 16, 1992 art. 326 Official Journal of December 23, 1992 in force on March 1, 1994)
   Anyone who improperly avails himself of the quality of owner of a certificate or of an application for a plant variety certificate is punished by a fine provided for by 5 ° of article 131-13 of the penal code for contraventions of the 5th class . In the event of a repeat offense, the fine is that provided for by 5 ° of article 131-13 of the penal code for 5th class contraventions committed in recidivism. There is a recidivism within the meaning of this article when a conviction for the same offense has been handed down against the accused in the five previous years.

Article L623-35

(Law nº 92-1336 of December 16, 1992 art. 322 Official Journal of December 23, 1992 in force on March 1, 1994)
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

Without prejudice, if any, of the more serious penalties provided for in the matter of endangering State security, anyone who knowingly violates one of the prohibitions set out in Articles L. 623-9 and L. 623-10 is punished by ” a fine of 4,500 euros. If the violation has prejudiced the national defense, a sentence of imprisonment of five years may, in addition, be pronounced.

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