The owner
The new plant variety certificate can be applied for by the breeder or his successor in title (the name of the breeder is then indicated - Articles R 623-39 and R 623-40).
The filing
The filing is done to the Committee for the Protection of New Plant Varieties and shall especially contain (R 623-4) :
"- a description of the manner in which the variety was bred or discovered;
- a full description of the variety, specifying the characteristics which, in the applicant's opinion, enable it to be distinguished from the varieties already known. For varieties whose commercial production requires the repeated use of another variety, the characteristics of that other variety shall also be described;
- the denomination proposed by the breeder;
- the names, where appropriate, of the States in which applications for protection have been filed, and an authorization for the Committee to exchange with the competent authorities of any State, whether or not a member of the International Union for the Protection of New Varieties of Plants, all items of information on the results of past or current examinations of the variety concerned;
The application may be accompanied by drawings or photographs and by any information which may assist the Committee for the Protection of New Plant Varieties concerning, in particular, official or private trial cultures carried out in France or abroad."
The filing shall also contain (L. 623-1) :
" 1) A declaration stating :
- that the variety for which protection is sought is, to his knowledge, a new plant variety within the meaning of Article L. 623-1 ;
- that it has not been offered for sale or marketed in France with the agreement of the breeder or his successor or successors in title ;
- that it has not been offered for sale or marketed in France with the agreement of the breeder on the territory of any other State for longer than six years in the case of grape vine, forest trees, fruit trees and ornamental trees, including in each case their rootstocks, or for longer than four years in the case of other genera or species ;
2) Where appropriate, if the application relates to a variety whose commercial production requires the repeated use of a protected variety, the written authorization of the owner of the new plant variety certificate to use that protected variety ;
3) An undertaking to provides at the request of the Committee and within the period laid down, subject to rejection of the application, such reproductive or propagating material of the variety as may allow that variety to be examined, including, where applicable, the various hereditary components necessary for the reproduction of the variety ;
4) Where relevant, the power of attorney of the agent ;
5) Proof of payment of the fees due at the time of filing the application."
National Defence
As for the patents, the Minister Responsible for Defence shall be empowered to take cognizance, on a strictly confidential basis, of the applications and to prohibit the disclosure and the explotation thereof (Articles L. 623-8 to L. 623-11 and L. 623-20 to L. 623-22).
Publication
The application is registered and published in the Official Bulletin of the Committee for the Protection of New Plant Varieties.
Examination
If the examination has already been sufficiently carried out in another State member of the International Union for the Protection of New Plant Varieties, the Committee for the Protection of New Plant Varieties can give it up.
The Committee for the Protection of New Plant Varieties examines the application for a new plant variety certificate as for the definition of Article L. 623-1 :
"1) Is different from similar already known varieties by one characteristic that is important, precise and subject to little fluctuation or by several characteristics the combination of which is such as to give it the status of a new variety ;
2) Is homogenous in its characteristics ;
3) Remains stable, that is to say identical with its original definition at the end of each cycle of multiplication."
As for Article L623-5 "A plant variety shall not be deemed new if, in France or elsewhere, and prior to the date of filing of the application, it has received sufficient publicity to enable exploitation, or has been described in an application for a certificate or in an unpublished French certificate or in an application filed abroad and enjoying the priority provided for in Article L. 623-6.
The use of the variety by its breeder in tests or experiments or its entry in a catalogue or an official register of a State party to the Paris Convention of 2 December, 1961, for the Protection of New Varieties of Plants, or its display in an official or officially recognized exhibition within the meaning of the Convention relating to International exhibitions signed at Paris on 22 November, 1928, and amended on 10 May, 1948, shall in no case, however, constitute an act of disclosure causing prejudice to the novelty of the variety.
Nor shall disclosure constituting an evident abuse in relation to the breeder cause prejudice to the novelty of the variety."
The Committee for the Protection of New Plant Varieties also examines the denomination of the variety (R 623-22 : "Where a proposed denomination is found by the Committee to be at variance with Articles R. 623-6 and R. 623-7 and with the orders issued for the implementation of this Section, or is the subject of observations found to be relevant by the Committee, the breeder shall be invited to submit another denomination within two months of the notification to this effect. The new denomination shall undergo the same process of examination and publication. If the breeder does not propose a new denomination within the prescribed period, the application for a certificate shall be declared inadmissible. Fees already paid shall not be refunded
.")
Observations
Article R623-16 : "Subject to the provisions of Article R. 623-44, any application for a new plant variety certificate filed in due form shall be announced in an official bulletin to be published by the Committee for the Protection of New Plant Varieties.
The purpose of this publication shall be, in particular, to bring the application for a new plant variety certificate to the notice of any person having an interest therein.
The publication shall specify the date of filing, the name and address of the applicant, and that of the breeder when he is not the applicant, the denomination proposed or, failing this, the breeder's reference, the genus or species to which the variety belongs and a summary of the latter's characteristics.
As from the day of publication in accordance with the preceding paragraphs, any person may take cognizance of the application as entered in the Register of Applications for New Plant Variety Certificates."
Decision
The Committee for the Protection of New Plant Varieties makes a report notified to the appliant and, for the elements that are only interesting them, to the third parties which have expressed observations.
They can present observations within two months of the notification.
Issue
The Committee for the Protection of New Plant Varieties then decides to issue the new plant certificate, to reject the application or to order further examination (L. 623-7).
The time limit for lodging an appeal before the Court of Appeal of Paris against decisions of the Committee for the Protection of New Plant Varieties shall be one month. (R. 412-15)
The certificate shall be entered in the National Register of New Plant Variety Certificates and its issue shall be published in the Official Bulletin of the Committee (R 623-25 to 29 ; R 623-40, L. 623-7 to L. 623-13).
The certificate shall have effect as from the date of the application (L. 623-7 and R 623-13). The duration of the certificate shall be twenty years from the date of issue. It shall be fixed at twenty-five years if the constitution of the elements for the production of the species requires a long period of time (L. 623-13).
Loss of the rights
A fee shall be payable annually to renew the certificate (L. 623-16).
As for Article L623-23, the rights of the owner of a new plant variety certificate shall be forfeited where :
"1) He is unable to furnish the administration at any time with the elements of reproduction or vegetative propagation such as seeds, cuttings, grafts, rhizomes and tubers, enabling the protected variety to be reproduced with its morphological and physiological characteristics as defined in the new plant variety certificate ;
2) He refuses to submit to inspections carried out for the purpose of checking the measures he has taken for the maintenance of the variety [...]"
The denomination
Article L623-15 : "[...] The denomination given to the variety may not be the subject of a trademark filing in a State party to the Paris Convention of 2 December, 1961. Such a filing may be made, however, as a precautionary measure, without preventing the issue of the new plant variety certificate, provided that evidence of the renunciation of the effects of the application in the States party to the Convention is produced prior to the issue of the said certificate.
The provisions of the preceding paragraph shall not prevent the addition, in respect of one and the same new plant variety, of a trademark to the denomination of the variety concerned."
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