Published: 2007
Key Benefits:
Plant Variety Protection and Seed Act
(Act No. 83 of May 29, 1998)
Chapter I General Provisions
(Purpose)
Article 1 The purpose of this Act is to promote the breeding of plant varieties
and the rational distribution of propagating material by providing for a system
relating to the registration of plant varieties for the protection of new plant
varieties and regulations relating to the indication of designated seeds, so as to
contribute to the development of agriculture, forestry and fisheries.
(Definitions)
Article 2 (1) The term "agricultural, forestry and aquatic plants" as used in this
Act means spermatophyte, pteridophyte, bryophyte, multicellular algae and
other plants specified by the Cabinet Order, which are cultivated for the
production of agricultural, forestry and aquatic products, and the term "plant"
means an individual of agricultural, forestry and aquatic plants.
(2) The term "variety" as used in this Act means a plant grouping which can be
distinguished from any other plant grouping by the expressions of at least one
of the important characteristics (hereinafter referred to as "the expressions of
the characteristics") and which can be propagated while maintaining all its
expressions of characteristics without change.
(3) The term "propagating material" as used in this Act means entire plants or
parts of plants used for propagation.
(4) The term "processed products" as used in this Act means the products which
are made directly from the harvested material obtained through the use of
propagating material and are specified by the Cabinet Order.
(5) The term "exploitation" in relation to a variety as used in this Act means the
following acts:
(i) production, conditioning, offering for transfer, transferring, exporting,
importing or stocking for the purpose of any of these acts, of propagating
material of the variety;
(ii) production, offering for transfer or lease, transferring, leasing, exporting,
importing or stocking for the purpose of any of these acts, of the harvested
material obtained through the use of propagating material of the variety
(limited to cases where the holder of the breeder's right or the holder of the
exclusive exploitation right has not had reasonable opportunity to exercise
his/her right against the acts prescribed in the preceding item).
1
(iii) production, offering for transfer or lease, transferring, leasing, exporting,
importing or stocking for the purpose of any of these acts, of the processed
products of the variety (limited to cases where the holder of the breeder's
right or the holder of the exclusive exploitation right has not had reasonable
opportunity to exercise his/her right against the acts prescribed in the
preceding two items).
(6) The term "designated seeds" as used in this Act means seeds (excluding that
of trees provided for forestry), appearing in the form of seeds, spores, stems,
roots, seedlings, saplings, scions, rootstocks, spawn or other parts of plants
specified by the Cabinet Order, which are designated by the Minister of
Agriculture, Forestry and Fisheries as requiring certain matters to be labeled
at the time of sale thereof in order to facilitate identification of their quality,
and the term "seed dealer" as used in this Act means persons engaged in the
sale of designated seeds in the course of business.
(7) The Minister of Agriculture, Forestry and Fisheries, shall, after having heard
the opinions of the Agricultural Materials Council, determine and publicly
notify the important characteristics referred to in paragraph (2) of this Article
for each of the classes, specified by the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries, of agricultural, forestry or aquatic plants.
Chapter II Variety Registration System
Section 1 Variety Registration and Application for Variety Registration
(Condition for Variety Registration)
Article 3 (1) Any person who has bred (meaning the fixation or determination of
the expression of the characteristics resulting from artificial or natural
variation; the same shall apply hereinafter) a variety fully meeting the
requirements set forth below or his/her successor in title (hereinafter referred
to as "breeder") may obtain a registration for the variety (hereinafter referred
to as "variety registration").
(i) the variety is clearly distinguishable, by at least one of its expressions of the
characteristics, from any other variety whose existence is a matter of
common knowledge in Japan or in any foreign state at the time of the filing
of the application for variety registration.
(ii) all of the plants of the variety at the same propagation stage are
sufficiently similar in all of its expressions of the characteristics.
(iii) all of the expressions of the characteristics of the variety remain
unchanged after repeated propagation.
(2) Where the filing of an application for variety registration or an equivalent
application in a foreign state in relation to a variety has lead to the granting of
the protection in relation to the breeding of the variety, the existence of the
2
variety shall be deemed to have been a matter of common knowledge
retroactively since the time of the filing of the application.
Article 4 (1) A variety may not be registered, if the denomination of the variety
pertaining to the application for variety registration (hereinafter referred to as
"applied variety") falls under any of the following items:
(i) where there is more than one denomination for the applied variety;
(ii) where the denomination is identical or similar to a registered trademark
pertaining to the propagating material of the applied variety or a registered
trademark pertaining to goods similar to the said propagating material;
(iii) where the denomination is identical or similar to a registered trademark
pertaining to services relating to the propagating material of the applied
variety or goods similar to the said propagating material;
(iv) where the denomination is likely to cause misidentification of the applied
variety or confusion in respect of its identification (excluding the cases set
forth in the preceding two items).
(2) A variety may not be registered when the propagating material or harvested
material of the variety have been transferred in the course of business, in
Japan earlier than one year before the date of application for variety
registration, or in any foreign state earlier than four years before the said date
(or earlier than six years in the case of varieties belonging to a genus or species
of agricultural, forestry or aquatic plant specified by the Ordinance of the
Ministry of Agriculture, Forestry and Fisheries as a perennial plant). However,
this shall not apply where such a transfer was made for the purpose of
experiment or research, or where such a transfer was made against the will of
the breeder.
(Application for Variety Registration)
Article 5 (1) A person intending to obtain a variety registration shall, pursuant
to the provisions of the Ordinance of the Ministry of Agriculture, Forestry and
Fisheries, submit to the Minister of Agriculture, Forestry and Fisheries an
application stating the following matters:
(i) the name and the domicile or residence of the applicant;
(ii) the genus or species of the agricultural, forestry or aquatic plant to which
the applied variety belongs;
(iii) the denomination of the applied variety;
(iv) the name and the domicile or residence of the person who has bred the
applied variety; and
(v) matters prescribed by the Ordinance of the Ministry of Agriculture,
Forestry and Fisheries in addition to what is listed in the preceding items.
(2) The application set forth in paragraph (1) of this Article shall be attached
3
with a written explanation stating the matters specified by the Ordinance of
the Ministry of Agriculture, Forestry and Fisheries and photographs of the
plant of the applied variety, pursuant to the provisions of the Ordinance of the
Ministry of Agriculture, Forestry and Fisheries.
(3) Where two or more persons have bred a variety jointly, they shall file an
application for variety registration pertaining to the variety jointly.
(Application Fee)
Article 6 (1) The applicant shall pay an application fee in an amount specified by
the Ordinance of the Ministry of Agriculture, Forestry and Fisheries but not
exceeding 47,200 yen per application.
(2) The provision set forth in the preceding paragraph shall not apply where the
applicant is the national government (including Incorporated administrative
agencies provided by the Act on General Rules of Incorporated administrative
agency (Act No. 103 of 1999) Article 2 paragraph (1) which are specified by the
Cabinet Order as dealing with activities relating to breeding of plant varieties;
the same shall apply to the paragraph (3) of this Article, Article 45 paragraphs
(2) and (3), and Article 54 paragraph (2)).
(3) Notwithstanding the provision of paragraph (1) of this Article, where the
national government and other person jointly file an application for variety
registration and they have an agreement on the portion of their respective
shares of the breeder's right to be granted upon variety registration, the
amount of the application fee set forth in paragraph (1) of this Article shall be
the amount calculated by multiplying the amount of the application fee
specified by the Ordinance of the Ministry of Agriculture, Forestry and
Fisheries pursuant to paragraph (1) of this Article by the percentage of the
share of such other person, which shall be paid by such other person.
(4) Where there is a fraction less than 10 yen in the amount of the application fee
as calculated pursuant to the provision of paragraph (3) of this Article, such a
fraction shall be discarded.
(Transfer of the Title of Applicant)
Article 7 (1) The title of applicant may be transferred.
(2) Any transfer of the title of applicant shall not come into effect without a
notification to the Minister of Agriculture, Forestry and Fisheries pursuant to
the provisions of the Ordinance of the Ministry of Agriculture, Forestry and
Fisheries, except in the case of inheritance or other general succession.
(3) Where the title of applicant has been transferred as a result of inheritance or
other general succession, the successor in title shall notify, without delay, the
Minister of Agriculture, Forestry and Fisheries accordingly, pursuant to the
provisions of the Ordinance of the Ministry of Agriculture, Forestry and
4
Fisheries.
(Employee-bred Variety Bred as part of his/her Duties)
Article 8 (1) With respect to a variety bred by an employee, an executive officer
of a juridical person, or a national or local governmental officer (hereinafter
referred to as "employee etc."), any contractual provision, service regulation or
any other stipulation providing in advance that the employer, juridical person,
or national or local government (hereinafter referred to as "employer etc.")
shall file an application for variety registration, or have the title of applicant
transferred, or have, if the employee etc. obtain a variety registration, the
breeder's right transferred or an exclusive exploitation right granted shall be
null and void. However, this shall not apply where the breeding of the variety,
by its nature, falls within the scope of the business of the employer etc. and,
moreover, the acts which have lead to the said breeding fall within the duties
of the employee etc. (hereinafter referred to as "employee-bred variety as part
of his/her duties").
(2) An employee etc. may make a claim on the employer etc. for the payment of
compensation to be determined in consideration of the profit to be received by
the employer etc. from the employee-bred variety as part of his/her duties and
the extent to which the employer etc. has contributed to the breeding of that
variety, when, in accordance with a contract, service regulation or any other
stipulation, the employer etc. filed an application with respect to the said
employee-bred variety as part of his/her duties or had the title of applicant
transferred, or had, after the employee etc. obtained a variety registration, the
breeder's right transferred or an exclusive exploitation right granted.
(3) Where an employee etc. or his/her successor in title has obtained a variety
registration relating to an employee-bred variety as part of his/her duties,
his/her employer etc. or his/her general successor shall be granted a non-
exclusive exploitation right on the variety concerned.
(First-to-file Rule)
Article 9 (1) Where two or more applications for variety registration has been
filed in relation to an identical variety or to varieties that are not clearly
distinguishable from each other by the expressions of the characteristics, only
the applicant who filed the application for variety registration first shall be
entitled to obtain a variety registration.
(2) Where an application for variety registration has been withdrawn or
dismissed, such an application shall, for the purpose of paragraph (1) of this
Article, be deemed never to have been filed.
(3) An application for variety registration filed by a person who is not the breeder
of the variety concerned shall, for the purpose of paragraph (1) of this Article,
5
be deemed not to be an application for variety registration.
(Enjoyment of Rights by Foreign Nationals)
Article 10 A foreign national who has neither domicile nor residence (nor
business office, in the case of a juridical person) in Japan may not enjoy a
breeder's right or any other rights relating to a breeder's right, except in cases
falling under any of the following items:
(i) where the state to which the person belongs or the state in which the person
has domicile or residence (in the case of a juridical person, business office) is
a State party to the International Convention for the Protection of New
Varieties of Plants of December 2, 1961, as amended at Geneva on November
10, 1972, on October 23, 1978 and on March 19, 1991 (hereinafter referred to
as "State Party") or a member State of an intergovernmental organization
which is bound by the said Convention (hereinafter referred to as
"Intergovernmental Organization Party"; "State Parties and member states
of an Intergovernmental Organization Party" being hereinafter collectively
referred to as "Contracting Parties")
(ii) where the state to which the person belongs or the state in which the
person has domicile or residence (in the case of a juridical person, its
business office) is a State party to the International Convention for the
Protection of New Varieties of Plants of December 2, 1961, as amended at
Geneva on November 10, 1972 and on October 23, 1978 (including States in
relation with which Japan is to apply the said Convention pursuant to the
provision of Article 34 (2) of the said Convention; hereinafter referred to as
"Member State") and if the said state provides protection for the plant genus
or species to which the person's applied variety belongs (except for the case
prescribed in the preceding item).
(iii) where the state to which the person belongs provides Japanese nationals
with the protection on varieties under the same conditions as for its own
nationals (including states which provide Japanese nationals with such
protection, provided that Japan allows nationals of that state to enjoy a
breeder's right and other rights related to a breeder's right) and if the said
state provides protection for the plant genus or species to which the person's
applied variety belongs (except for the cases prescribed in the preceding two
items).
(Right of Priority)
Article 11 (1) Any person listed in any of the following items may, if the
conditions prescribed respectively in those items are met, claim a right of
priority at the time of filing the application, pursuant to the provisions of the
Ordinance of the Ministry of Agriculture, Forestry and Fisheries.
6
(i) a person who has filed an equivalent application (s) to the application for
variety registration in a State Party, an Intergovernmental Organization
Party or a Member State (hereinafter collectively referred to as "application
in a State Party") or his/her successor in title (limited to a Japanese national,
a person belonging to a Contracting Party or a Member State, or a person
having a domicile or residence (in the case of a juridical person, business
office) in Japan, a Contracting Party or a Member State): where the person
or his/her successor in title files an application for variety registration in
relation to the variety pertaining to the said application in a State Party,
within one year from the day following the date of filing of the first
application in a State Party (hereinafter referred to as "date of application in
a State Party"); or
(ii) a person who has filed an equivalent application(s) to the application for
variety registration in a state provided in item 3 of Article 10 which allows
Japanese nationals to claim a right of priority under the same conditions as
Japan does (excluding State Parties and Member States; hereinafter referred
to as "Designated State")(hereinafter referred to as "application in a
Designated State") or his/her successor in title (limited to a Japanese
national or a person belonging to a Designated State): where the person or
his/her successor in title files an application for variety registration in
relation to the variety pertaining to the said application in a Designated
State, within one year from the day following the date of the filing of the first
application in a Designated State (hereinafter referred to as "date of
application in a Designated State").
(2) Where the applicant has claimed the right of priority in relation to an applied
variety pursuant to the provisions of paragraph (1) of this Article, any
application for variety registration, publication, transfer or any other acts
made in relation to varieties which are identical to or not clearly
distinguishable from the applied variety by its expressions of the
characteristics, within a period from the date of application in a State Party or
the date of application in a Designated State to the date of the application for
variety registration in relation to the said applied variety, shall not constitute
a ground for preventing the said applied variety from registration.
(Correction of Application for Variety Registration)
Article 12 (1) The Minister of Agriculture, Forestry and Fisheries may order the
applicant to correct the application for variety registration, designating a
reasonable period of time, in any of the following cases;
(i) where the application for variety registration does not comply with the
formal requirements prescribed in this Act or in orders or ordinances
thereunder; or
7
(ii) where the applicant does not pay the application fee payable under the
provisions of paragraph (1) of Article 6.
(2) The Minister of Agriculture, Forestry and Fisheries may dismiss the
application for variety registration, if the person who has been ordered to
correct the application for variety registration pursuant to the provisions of
paragraph (1) of this Article does not correct it within the time limit
designated pursuant to the provision of the said paragraph.
Section 2 Publication of Application
(Publication of Application)
Article 13 (1) When an application for variety registration is received (or when a
corrected application for variety registration is received if, pursuant to the
provision of paragraph (1) of Article 12, correction of the application for variety
registration has been ordered), the Minister of Agriculture, Forestry and
Fisheries shall publish the application for variety registration without delay by
publicly notifying the following matters:
(i) the application number and the filing date of the application for variety
registration;
(ii) the name and the domicile or residence of the applicant;
(iii) the genus or species of the agricultural, forestry or aquatic plant to which
the applied variety belongs;
(iv) the denomination of the applied variety;
(v) the date of the publication of the application; and
(vi) other necessary matters in addition to what is listed in the preceding items.
(2) Where the application for variety registration has been abandoned,
withdrawn or dismissed after the publication of the application, or when the
application for variety registration has been rejected, the Minister of
Agriculture, Forestry and Fisheries shall publicly notify that effect.
(Effects etc. of Publication of Application)
Article 14 (1) Where the applicant has, after the publication of his/her
application, given warning by presenting a written statement setting forth the
particularities of the applied variety, he/she may claim, against a person who
has exploited in the course of business, after the warning and prior to the
variety registration, that applied variety, a variety which is, by its expressions
of the characteristics, not clearly distinguishable from that applied variety, or
a variety to which the provisions of each item of Article 20 paragraph (2) would
apply if the said applied variety were registered, compensation in an amount
equivalent to the amount which the applicant would be entitled to receive if
that applied variety were registered. Even in the absence of such warning, the
8
same shall apply to a person who has exploited in the course of business an
applied variety (including a variety which, by its expressions of the
characteristics, is not clearly distinguishable from the applied variety and a
variety to which the provision of each item of Article 20 paragraph (2) would
apply if the applied variety were registered; the same shall apply hereinafter
in this Article) with knowledge that the variety which he/she exploited was an
applied variety pertaining to the publication of application, prior to the variety
registration.
(2) The right to claim compensation prescribed in paragraph (1) of this Article
can be exercised only after the variety registration with respect to the variety
concerned.
(3) The exercise of the right to claim compensation prescribed in paragraph (1) of
this Article shall not preclude the exercise of the breeder's right.
(4) Where the application for variety registration has been abandoned,
withdrawn or dismissed after the publication of application where the
application for variety registration has been rejected where the variety
registration has been canceled pursuant to the provisions of either item 1 or 4
of Article 49 paragraph (1), where a decision to cancel the variety registration
has become final and binding, which upholds the ground for an objection to the
variety registration pursuant to the Administrative Appeal Act (Act No. 160 of
1962), or where a judgment to cancel or to confirm nullity of the variety
registration has become final and binding, the right to claim compensation
under paragraph (1) of this Article shall be deemed never to have established.
(5) Articles 36, 37, 38, 40, 41, 42 and 43 of this Act as well as Articles 719 and
724 of the Civil Code (Act No. 89 of 1896) shall apply mutatis mutandis to the
exercise of the right to claim compensation as prescribed in paragraph (1) of
this Article. In this case, where a holder of the right to claim compensation has
become aware of the fact that the applied variety pertaining to the application
for variety registration had been exploited and of the person who had exploited
the applied variety prior to the variety registration with respect to that variety,
the term "the time when the victim or his/her legal representative became
aware of such damage and perpetrator" in Article 724 of the said Code shall be
deemed to be replaced with "the date of the variety registration."
Section 3 Examination
(Examination of Applied Variety)
Article 15 (1) The Minister of Agriculture, Forestry and Fisheries may order the
applicant to submit entire plants or parts of plants of the applied variety or
other material necessary for examination of the applied variety.
(2) The Minister of Agriculture, Forestry and Fisheries shall, in the course of the
9
examination of the applied variety, cause officers of the Ministry of Agriculture,
Forestry and Fisheries to carry out on-site inspections or the Incorporated
administrative agency National Center for Seeds and Seedlings (hereinafter
referred to as "NCSS") to carry out growing tests. However, this shall not apply
where it is found unnecessary to do so for the purpose of the examination of the
applied variety.
(3) The Minister of Agriculture, Forestry and Fisheries may request relevant
administrative organs, educational institutions or other persons whom he/she
finds appropriate, to carry out on-site inspections prescribed in paragraph (2)
of this Article.
(4) Items to be tested, test methods and other matters necessary for the carrying-
out of the growing tests set forth in paragraph (2) of this Article shall be
specified by the Ordinance of the Ministry of Agriculture, Forestry and
Fisheries.
(5) The NCSS may, with the consent of the Minister of Agriculture, Forestry and
Fisheries, request relevant administrative organs, educational institutions or
other persons whom it finds appropriate, to carry out growing tests prescribed
in paragraph (2) of this Article.
(6) The Minister of Agriculture, Forestry and Fisheries may, where he/she finds
it necessary in order to ensure the proper carrying-out of the growing tests,
issue orders to the NCSS in relation to growing tests prescribed in paragraph
(2) of this Article.
(Order to Change Denomination)
Article 16 (1) Where the denomination of the applied variety falls under any of
the items of Article 4 paragraph (1), the Minister of Agriculture, Forestry and
Fisheries may order the applicant to change it to another denomination which
does not fall under any of the items of the said paragraph, designating a
reasonable period of time.
(2) Where the denomination, after the publication of application, has been
changed pursuant to the provision of the preceding paragraph, the Minister of
Agriculture, Forestry and Fisheries shall publicly notify information to that
effect.
(Rejection of Application for Variety Registration)
Article 17 (1) Where an application for variety registration falls under any of the
following items, the Minister of Agriculture, Forestry and Fisheries shall reject,
in writing, the application for variety registration:
(i) the applied variety is not registerable pursuant to the provisions of Article 3
paragraph (1), Article 4 paragraph (2), Article 5 paragraph (3), Article 9
paragraph (1) or Article 10; or
10
(ii) the applicant, without justifiable grounds, fails to comply with the order
prescribed in Article 15 paragraph (1), refuses the on-site inspection as
prescribed in paragraph (2) of the said Article or fails to comply with the
order prescribed in paragraph (1) of Article 16.
(2) When the Minister of Agriculture, Forestry and Fisheries intends to reject an
application for variety registration pursuant to the provision of paragraph (1)
of this Article, he/she shall notify the applicant of the reason for the rejection
and give him/her an opportunity to submit a written opinion of his/her
arguments, designating a reasonable period of time.
(Variety Registration)
Article 18 (1) The Minister of Agriculture, Forestry and Fisheries shall register
the variety unless the application for variety registration shall be rejected
pursuant to the provision of paragraph (1) of Article 17.
(2) A variety registration shall be completed upon the entry of the following
matters in the Register of Plant Varieties:
(i) the registration number and the date of variety registration;
(ii) the genus or species of the agricultural, forestry or aquatic plant to which
the variety belongs;
(iii) the denomination of the variety;
(iv) the expression of the characteristics of the variety;
(v) the duration of the breeder's right;
(vi) the name and domicile or residence of the person obtaining the variety
registration; and
(vii) in addition to what is listed in the preceding items, the matters specified
by the Ordinance of the Ministry of Agriculture, Forestry and Fisheries.
(3) When he/she has registered a variety pursuant to the provisions of paragraph
(1) of this Article, the Minister of Agriculture, Forestry and Fisheries shall
notify the person who obtains the variety registration accordingly, and publicly
notify the matters prescribed by the Ordinance of the Ministry of Agriculture,
Forestry and Fisheries.
Section 4 Breeder's Right
(Grant and Duration of the Breeder's Right)
Article 19 (1) A breeder's right shall become effective upon a variety registration.
(2) Duration of a breeder's right shall be twenty-five years (thirty years, in the
case of varieties provided in Article 4 paragraph (2)) from the date of variety
registration.
(Effects of the Breeder's Right)
11
Article 20 (1) The holder of a breeder's right shall have an exclusive right to
exploit, in the course of business, the variety which is registered (hereinafter
referred to as "registered variety") and varieties which, by the expressions of
the characteristics, are not clearly distinguishable from the registered variety.
However, this shall not apply where an exclusive exploitation right is granted
in relation to the breeder's right, to the extent where the holder of the
exclusive exploitation right is granted an exclusive right to exploit those
varieties.
(2) The holder of the breeder's right for a registered variety shall also have an
exclusive right to exploit varieties described in following items, the scope of
which shall be the same as the right which the breeders of the said varieties
would, if obtained a variety registration, be granted. In this case, the proviso of
paragraph (1) of this Article shall apply mutatis mutandis.
(i) varieties which are bred by changing parts of the expressions of the
characteristics of the registered variety while retaining the expressions of its
essential characteristics using such methods as selection of a mutant,
backcrossing, transformation by genetic engineering or other methods
specified by the Ordinance of the Ministry of Agriculture, Forestry and
Fisheries and which are clearly distinguishable from the initial registered
variety by the expressions of the characteristics; or
(ii) varieties whose production requires the repeated use of the registered
variety.
(3) Where a registered variety is bred by changing parts of the expressions of the
characteristics of a variety other than the registered variety while retaining
the expressions of its essential characteristics using methods specified by the
Ordinance of the Ministry of Agriculture, Forestry and Fisheries prescribed in
item 1 of paragraph (2) of this Article, for the purpose of the application of
paragraph (2) of this Article and paragraph (2) of Article 21, the words
"following items" in paragraph (2) of this Article and "each item of paragraph
(2) of Article 20" in paragraph (2) of Article 21 shall be deemed to be replaced
with the words "item 2" and "item 2 of paragraph (2) of Article 20," respectively.
(Limitation of the effects of the Breeder's Right)
Article 21 (1) The effects of a breeder's right shall not extend to the following
acts:
(i) exploitation of the variety for the purpose of breeding new varieties and for
other experimental and research purposes;
(ii) production of propagating material of the registered variety, by a person
who has a patent right for the process of breeding the registered variety
(including varieties which are, by the expressions of the characteristics, not
clearly distinguishable from the registered variety; hereinafter the same
12
shall apply in this paragraph) or by a person who has been granted an
exclusive license or non-exclusive license on the said patent right, by means
of the process pertaining to the said patent, or conditioning, offering for
transfer, transferring, exporting, importing or stocking for the purpose of any
of these acts, of the said propagating material;
(iii) production of propagating material of the registered variety after the lapse
of the patent right set forth in item (ii) of this paragraph, by any person, by
means of the process pertaining to the said patent, or conditioning, offering
for transfer, transferring, exporting, importing or stocking for the purpose of
any of these acts, of the said propagating material; or
(iv) production, offering for transfer or lease, transferring, leasing, exporting,
importing or stocking for the purpose of any of these acts, of the harvested
material obtained through the use of the propagating material set forth in
items (ii) and (iii) of this paragraph.
(v) production, offering for transfer or lease, transferring, leasing, exporting,
importing or stocking for the purpose of any of these acts, of the processed
products pertaining to the harvested material set forth in item (iv) of this
paragraph.
(2) Where farmers as prescribed by the Cabinet Order has obtained harvested
material through the use of propagating material of a registered variety,
varieties which, by the expressions of the characteristics, are not clearly
distinguishable from the registered variety, or varieties listed in each item of
paragraph (2) of Article 20 pertaining to the registered variety (hereinafter
collectively referred to as "registered variety etc.") which have been transferred
by the holder of the breeder's right, the holder of an exclusive exploitation
right or the holder of a non-exclusive exploitation right, and further use, on
their own holdings, the said harvested material as propagating material for the
next production cycle, the effects of the breeder's right shall not extend to the
said propagating material used for the next production cycle, the harvested
material obtained through the use of it, and processed products pertaining to
such harvested material, unless otherwise agreed upon by contract.
(3) The provision of paragraph (2) of this Article shall not apply where farmers
use propagating material of varieties which belong to any one of the genera or
species designated by the Ordinance of the Ministry of Agriculture, Forestry
and Fisheries as being propagated vegetatively.
(4) Where propagating material, harvested material or processed products of a
registered variety etc. has been transferred by the holder of the breeder's right,
the holder of an exclusive exploitation right or the holder of a non-exclusive
exploitation right, or as the result of the acts listed in any of the items of
paragraph (1) of this Article, the effect of the breeder's right for the said
registered variety shall not extend to the exploitation of the transferred
13
propagating material, harvested material or processed products. However, this
shall not apply to the acts which involve further propagation of the said
registered variety etc., nor to the exporting of propagating material of the said
registered variety to a state which does not provide protection for the plant
genus or species to which that registered variety belongs, nor to the exporting
of harvested material of the said registered variety to such a state for a
purpose other than final consumption.
(Obligation to Use the Denomination)
Article 22 (1) When any person offers for transfer or transfers propagating
material of a registered variety (including varieties whose registration have
already expired: the same shall apply hereinafter in this Article) in the course
of business, he/she shall be obliged to use the denomination of the said
registered variety (where the denomination has been changed pursuant to the
provisions of Article 48 paragraph (2), the denomination as changed.)
(2) When any person offers for transfer or transfers propagating material of a
non-registered variety in the course of business, he/she shall be prohibited
from using denomination of any registered varieties which belong to the genus
or species of agricultural, forestry or aquatic plants to which the said non-
registered variety belongs, or to the genus or species of agricultural, forestry or
aquatic plants specified by the Ordinance of the Ministry of Agriculture,
Forestry and Fisheries as similar to the genus or species of agricultural,
forestry or aquatic plants to which the said variety belongs.
(Jointly Held Breeder's Right)
Article 23 (1) Each of the joint holders of a breeder's right may neither transfer
his/her share nor establish a pledge on it without the consent of all the other
joint holders.
(2) Each of the joint holders of a breeder's right may, unless otherwise agreed
upon by contract, exploit the registered variety etc. without the consent of the
other joint holders.
(3) Each of the joint holders of a breeder's right may grant neither an exclusive
exploitation right nor a non-exclusive exploitation right on the breeder's right
without the consent of all the other joint holders.
(Extinct of a Breeder's Right due to the Dissolution of a Juridical person)
Article 24 A breeder's right shall be extinct in the following cases:
(i) where a juridical person holding a breeder's right dissolves, and the
breeder's right shall vest in the national treasury pursuant to the provisions
of Article 72 paragraph (3) of the Civil Code or equivalent Acts; or
(ii) where a natural person holding a breeder's right dies, and the breeder's
14
right shall vest in the national treasury pursuant to the provisions of Article
959 of the Civil Code.
(Exclusive Exploitation Right)
Article 25 (1) The holder of a breeder's right may grant an exclusive exploitation
right on his/her breeder's right.
(2) The holder of an exclusive exploitation right shall have an exclusive right to
exploit the registered variety etc. pertaining to the exclusive exploitation right
in the course of business to the extent laid down in contract granting the right.
(3) An exclusive exploitation right may be transferred only where the transfer is
together with the transfer of the business in which the variety is exploited,
where it is with the consent of the holder of the breeder's right, or where it is
as a result of inheritance or other general successions.
(4) The holder of an exclusive exploitation right may establish a pledge or grant a
non-exclusive exploitation right on the exclusive exploitation right only with
the consent of the holder of the breeder's right.
(5) The provisions set forth in Article 23 shall apply mutatis mutandis to
exclusive exploitation rights.
(Non-exclusive Exploitation Right)
Article 26 (1) The holder of a breeder's right may grant a non-exclusive
exploitation right on his/her breeder's right.
(2) The holder of a non-exclusive exploitation right shall have the right to exploit
the registered variety etc. pertaining to the non-exclusive exploitation right in
the course of business pursuant to the provision of this Act or to the extent laid
down in contract granting the right.
(Non-exclusive Exploitation Right by virtue of Prior Breeding)
Article 27 A person who has bred, earlier than the breeder of a registered
variety, a variety that, by the expressions of the characteristics, is identical to
or not clearly distinguishable from the registered variety shall have a non-
exclusive exploitation right on the breeder's right pertaining to the said
registered variety.
(Arbitration)
Article 28 (1) Where a registered variety etc. has not been adequately exploited
continuously for two years or more in Japan, or where the exploitation of a
registered variety etc. is especially necessary for the reason of public interest,
a person who intends to exploit the said registered variety etc. in the course of
business may request the holder of the breeder's right or the holder of an
exclusive exploitation right for the said registered variety to hold consultations
15
concerning the grant of a non-exclusive exploitation right thereon.
(2) Where no agreement has been reached by the consultations set forth in
paragraph (1) of this Article, or if such consultation has been unable to take
place, the person provided in the said paragraph may apply for an arbitration
decision with the Minister of Agriculture, Forestry and Fisheries.
(3) Where an application for the arbitration decision prescribed in paragraph (2)
of this Article has been filed, the Minister of Agriculture, Forestry and
Fisheries shall notify in writing the holder of the breeder's right, the holder of
an exclusive exploitation right, or other persons who have any right registered
in relation to the registered variety pertaining to the said application
accordingly and shall give them an opportunity to state their opinion,
designating a reasonable period of time.
(4) Unless he/she finds the exploitation of a registered variety, etc. especially
necessary for the reason of public interest, the Minister of Agriculture,
Forestry and Fisheries shall not render an arbitration decision ordering a non-
exclusive exploitation right to be granted where there is any justifiable ground
why the registered variety etc. has not been exploited adequately.
(5) Before rendering an arbitration decision set forth in paragraph (2) of this
Article, the Minister of Agriculture, Forestry and Fisheries shall hear the
opinions of the Agricultural Materials Council.
(6) An arbitration decision ordering a non-exclusive exploitation right to be
granted shall set forth the scope of the non-exclusive exploitation right as well
as the amount of consideration and the method of payment thereof.
(7) When he/she has rendered an arbitration decision in accordance with
paragraph (2) of this Article, the Minister of Agriculture, Forestry and
Fisheries shall notify the parties and other persons who have rights registered
in relation to the registered variety, accordingly.
(8) Upon the notification of the arbitration decision prescribed in paragraph (6)
of this Article has been notified to the parties pursuant to the provisions of
paragraph (7) of this Article, an agreement shall be deemed to have been
reached between the parties concerned as provided in the arbitration decision.
(Transfer of a Non-exclusive Exploitation Right)
Article 29 (1) A non-exclusive exploitation right, with the exception of such as is
granted by an arbitration decision set forth in paragraph (2) of Article 28, may
be transferred only where the transfer is together with the transfer of the
business in which the variety is exploited, where it is with the consent of the
holder of the breeder's right (in the case of a non-exclusive exploitation right
on an exclusive exploitation right, both the holder of the breeder's right and
the holder of that exclusive exploitation right; the same shall apply also to
paragraph (2) of this Article), or where it is as a result of inheritance or other
16
general succession.
(2) The holder of a non-exclusive exploitation right, with the exception of such as
is granted by an arbitration decision set forth in paragraph (2) of Article 28,
may establish a pledge on that non-exclusive exploitation right only with the
consent of the holder of the breeder's right.
(3) A non-exclusive exploitation right which has been granted by an arbitration
decision set forth in paragraph (2) of Article 28 may be transferred only
together with the business in which the variety is exploited.
(4) Paragraphs (1) and (2) of Article 23 shall apply mutatis mutandis to non-
exclusive exploitation rights.
(Pledge)
Article 30 (1) Where a pledge is established on a breeder's right or an exclusive
or non-exclusive exploitation right, the pledgee may not exploit the registered
variety etc. unless otherwise agreed upon by contract.
(2) A pledge on a breeder's right, an exclusive exploitation right or a non-
exclusive exploitation right may be exercised against consideration money to be
paid for the breeder's right or the exclusive or non-exclusive exploitation right
or against money or other goods that the holder of the breeder's right or of the
exclusive exploitation right would be entitled to receive for the exploitation of
the registered variety etc. However, an attachment order shall be obtained
prior to the payment of money or delivery of goods.
(Waiver of the Breeder's Right)
Article 31 (1) Where there is any holder of an exclusive exploitation right, any
pledgee or any holder of non-exclusive exploitation right under Article 8
paragraph (3), Article 25 paragraph (4) or Article 26 paragraph (1) in relation
to a breeder's right, the holder of the breeder's right may waive his/her
breeder's right only with the consent of all such persons.
(2) Where there is any pledgee or any holder of a non-exclusive exploitation right
under Article 25 paragraph (4) in relation to an exclusive exploitation right,
the holder of the exclusive exploitation right may waive his/her exclusive
exploitation right only with the consent of all such persons.
(3) Where there is any pledgee in relation to a non-exclusive exploitation right,
the holder of the non-exclusive exploitation right may waive his/her non-
exclusive exploitation right only with the pledgee's consent.
(Effects of Registration)
Article 32 (1) The following matters shall take no effect unless they are
registered:
(i) transfer (other than by inheritance or other general succession), extinction
17
by waiver, or restrictions on the disposition, of a breeder's right;
(ii) grant, transfer (other than by inheritance or other general succession),
modification, extinction (except as a result of a merger or extinction of the
breeder's right), or restriction on the disposition, of an exclusive exploitation
right, or
(iii) establishment, transfer (other than by inheritance or other general
succession), modification, extinction (except as a result of a merger or
extinction of a credit secured thereby), or restriction on the disposition, of a
pledge on a breeder's right or an exclusive exploitation right.
(2) Inheritance or other general succession referred to in each item of paragraph
(1) of this Article shall be notified to the Minister of Agriculture, Forestry and
Fisheries without delay, pursuant to the provisions of the Ordinance of the
Ministry of Agriculture, Forestry and Fisheries.
(3) Once a non-exclusive exploitation right has been registered on a breeder's
right or an exclusive exploitation right, it shall also be effective against anyone
subsequently acquiring the breeder's right or the exclusive exploitation right,
or against anyone subsequently being granted an exclusive exploitation right
on the breeder's right.
(4) A non-exclusive exploitation right under Article 8 paragraph (3) or Article 27
shall have the same effects as prescribed in paragraph (3) of this Article
without registration.
(5) The transfer, modification, extinction or restriction on the disposition of a
non-exclusive exploitation right, or the establishment, transfer, modification,
termination or restriction on the disposition of a pledge on a non-exclusive
exploitation right may not be duly asserted against any third party without
registration.
Section 5 Infringement
(Injunction)
Article 33 (1) The holder of a breeder's right or the holder of an exclusive
exploitation right may demand a person who infringes or is likely to infringe
his/her breeder's right or exclusive exploitation right to discontinue or refrain
from such infringement.
(2) The holder of a breeder's right or the holder of an exclusive exploitation right,
in making the demand prescribed in paragraph (1) of this Article, may demand
the destruction of the propagating material, the harvested material or the
processed products which is a component of the act of infringement, or the
objects used in the commission of the act of infringement, or other measures
necessary for the prevention of such infringement.
18
(Presumption of Amount of Damages)
Article 34 (1) Where the holder of a breeder's right or of an exclusive
exploitation right claims, against a person who has intentionally or negligently
infringed his/her breeder's right or exclusive exploitation right, compensation
for damages caused to him/her by the infringement, if the person has
transferred the propagating material, the harvested material or the processed
products which is the component of the act of infringement, the amount of
damage suffered by the holder of the breeder's right or the holder of the
exclusive exploitation right may be presumed, within the limit attainable by
the holder of the breeder's right or the holder of the exclusive exploitation right
in consideration of his/her capability to exploit such propagating material,
harvested material or processed products, to be the amount given by
multiplying the quantity of the propagating material, the harvested material
or the processed products transferred by the person (hereinafter referred to in
this paragraph as the "transferred quantity") by the profit per unit of the
propagating material, the harvested material or the processed products which
would have been sold by the holder of the breeder's right or the holder of the
exclusive exploitation right if there had been no such an act of infringement.
However, if there exists any circumstance under which the holder of the
breeder's right or the holder of the exclusive exploitation right may not be able
to sell the transferred quantity in whole or in part, the amount corresponding
to the quantity which would not have been sold due to such a circumstance
shall be deducted.
(2) Where the holder of a breeder's right or of an exclusive exploitation right
claims, against a person who has intentionally or negligently infringed his/her
breeder's right or exclusive exploitation right, compensation for damages
caused to him by the infringement, if the person has gained any profits as a
result of the act of infringement, the amount of the said profits shall be
presumed to be the amount of damage suffered by the holder of the breeder's
right or of the exclusive exploitation right
(3) The holder of a breeder's right or of an exclusive exploitation right may claim,
against a person who has intentionally or negligently infringed his/her
breeder's right or exclusive exploitation right, compensation for damage caused
to him by the infringement, by regarding the amount of money which he/she
would be entitled to receive from the exploitation of the registered variety etc.,
as the amount of damage suffered by him/her.
(4) The provision of paragraph (2) of this Article shall not preclude a claim for
compensation for damages in an amount exceeding the amount provided in the
said paragraph. In such cases, where the infringer of the breeder's right or the
exclusive exploitation right had neither intent nor gross negligence in the
commission of the act of infringement, the court may take such circumstances
19
into consideration in determining the amount of damages.
(Presumption of Negligence)
Article 35 A person who has infringed a breeder's right or an exclusive
exploitation right of another person shall be presumed to have been negligent
in the commission of the said act of infringement.
(Obligation to Clarify the Specific Conditions)
Article 36 In litigation pertaining to the infringement of a breeder's right or an
exclusive exploitation right, in order to deny the specific conditions of the
propagating material, the harvested material or the processed products which
the holder of a breeder's right or of an exclusive exploitation right claims as
the component of the act of infringement, the opponent shall clarify the specific
conditions of his/her act. However, this shall not apply where the opponent has
reasonable grounds for being unable to do so.
(Submission of Documents)
Article 37 (1) In litigation pertaining to the infringement of a breeder's right or
an exclusive exploitation right, the court may, upon the motion of a party,
order the other party to submit documents necessary for proving the said act of
infringement or for calculating of the damages caused by the said act of
infringement. However, this shall not apply where the person possessing the
documents has justifiable grounds for refusing the submission of the said
documents.
(2) When the court finds it necessary for determining whether there are
justifiable grounds as provided in the proviso of the preceding paragraph, the
court may cause the person possessing the documents to present such
documents. In this case, no person shall request the disclosure of the
documents presented.
(3) In the case referred to in the preceding paragraph, when the court finds it
necessary to hear opinions concerning the existence of justifiable grounds as
provided in the proviso of paragraph (1) by disclosing the documents as
provided in the second sentence of the preceding paragraph, the court may
disclose the documents to the parties, etc. (the parties (or, in the case of
juridical persons, their representatives), their agents (excluding counsels and
assistant in court), or their employees or any other workers; the same shall
apply hereinafter), counsels or assistant in court.
(4) The preceding three paragraphs shall apply mutatis mutandis to the
presentation of purposes to be inspected necessary for proving the act of
infringement in litigation pertaining to the infringement of a breeder's right or
an exclusive exploitation right.
20
(Expert Opinion for Calculation of Damages)
Article 38 In litigation pertaining to the infringement of a breeder's right or an
exclusive exploitation right, when, upon the motion of a party, the court orders
an expert opinion necessary for the calculation of the damages caused by the
said act of infringement, the other party shall explain to the expert witness the
matters necessary for the expert opinion.
(Determination of a Reasonable Amount of Damage)
Article 39 In litigation pertaining to the infringement of a breeder's right or an
exclusive exploitation right, where the court has determined that damage
actually arose and where it is extremely difficult for the holder of a breeder's
right or of an exclusive exploitation right, due to the nature of the facts, to
prove the facts necessary for proving the amount of damage, the court may
determine a reasonable amount of damage based on the entire import of oral
argument and the result of the examination of evidence.
(Protective Order)
Article 40 (1) In litigation pertaining to the infringement of a breeder's right or
an exclusive exploitation right, where there is prima-facie evidence of the fact
that trade secrets (refers to trade secrets as provided in Article 2 (6) of the
Unfair Competition Prevention Act (Act No. 47 of 1993), the same shall apply
hereinafter) possessed by a party satisfy all of the following conditions, the
court may, upon the motion of the party, order by a ruling that the parties, etc.,
counsels or assistant in courts shall neither use the trade secrets for any
purpose other than those for the proceedings of the litigation nor disclose the
trade secrets to any person other than those who receive the order regarding
the trade secrets under this provision. However, this shall not apply where the
parties, etc., counsels or assistant in courts have, prior to the filing of the
motion, already obtained or been in the possession of the trade secrets by a
method other than by reading of the briefs under item (i) or through the
examination or disclosure of evidence under the said item.
(i) where the trade secrets possessed by the party were or are contained in the
briefs already submitted or to be submitted or in the evidence already
examined or to be examined (including documents disclosed pursuant to the
provision in Article 37 paragraph (3) or Article 43 paragraph (4)); and
(ii) where it is necessary to restrict the use or the disclosure of the trade
secrets prescribed in the preceding item to prevent any possible interference
with the party's business activities based on the trade secrets, which might
arise if the trade secrets are used for any purpose other than proceedings of
the litigation or if the said trade secrets are disclosed.
21
(2) A motion requesting the order under the preceding paragraph (hereinafter
referred to as "protective order") shall be made in writing specifying the
following matters:
(i) the person(s) to whom the protective order is to be issued;
(ii) the facts that clearly identify the trade secrets to be protected by the
protective order; and
(iii) the facts corresponding to the reasons each of the items in the preceding
paragraph is applicable.
(3) Where the protective order is issued, a written ruling thereof shall be served
to the person(s) to whom the protective order is issued.
(4) The protective order shall take effect as of the date the written ruling is
served to the person(s) to whom the protective order is issued.
(5) The judicial decision dismissing a motion requesting the protective order may
be subject to immediate appeal against a ruling.
(Rescission of Protective Order)
Article 41 (1) A person(s) who has filed a motion requesting a protective order or
to whom a protective order is issued may file a motion with the court where the
record of a case s is maintained (or, in the case of no such court maintaining
the record of a case(s), the court issuing the protective order), requesting the
rescission of the protective order on the ground that the requirements as
provided in the previous Article paragraph (1) are not met or are no longer met.
(2) Where a judicial decision on a motion requesting the rescission of a protective
order is rendered, a written ruling thereof shall be served to the person who
filed the motion and the opponent in the case.
(3) The judicial decision on a motion requesting the rescission of a protective
order may be subject to immediate appeal against a ruling.
(4) A judicial decision to the effect that a protective order is to be rescinded shall
have no effect unless the judicial decision becomes final and binding.
(5) Where a judicial decision to the effect that a protective order is to be
rescinded is rendered, the court shall immediately notify the person(s) who, in
the litigation in which the said protective order was issued, received the
protective order pertaining to the trade secrets who are neither the person
filing the motion requesting the rescission of the protective order nor the
opponent, if any, of the fact that the judicial decision to the effect that the
protective order is to be rescinded was rendered.
(Notice of a Request Inspection of Record)
Article 42 (1) Where a ruling under Article 92 (1) of the Code of Civil Procedure
(Act No. 109 of 1996) was rendered pertaining to the record of litigation in
which a protective order was issued (excluding litigation in which all protective
22
orders have been rescinded), where a party to whom the protective order was
not issued in the litigation requests inspection etc. of a part of the record in
which the confidential information is contained, etc. under the said Article,
immediately after the filing of the request, the court clerk shall notify the
party who filed the motion under the said Article (excluding the person who
filed the request, the same in paragraph (3)) of the fact that the said request
has been filed.
(2) In the case of the preceding paragraph, the court clerk shall not allow the
person who filed the request to inspect etc. the part in which confidential
information is contained before a lapse of two weeks from the date of filing of
the said request (or, where a motion requesting a protective order is filed prior
to the day in which two weeks have lapsed, against the person who filed the
request, before the judicial decision on the motion becomes final and binding).
(3) The preceding two paragraphs shall not apply where all the parties who filed
a motion under Article 92 (1) of the Code of Civil Procedure give the consent to
allow the person who filed a request under paragraph (1) to inspect etc. the
part in which confidential information is contained.
(Suspension on Open Examination of Parties)
Article 43 (1) When a party, etc., to litigation pertaining to the infringement of a
patent right or exclusive exploitation right is to be examined as a party to the
litigation, its statutory representative or a witness, with pertaining to matters
that will be a basis for the determination of the existence or non-existence of
the said infringement, and such matters are trade secrets possessed by a party,
the court may, by a ruling, elect to hold closed examinations of such matters
where the court, upon the unanimous consent of all judges, finds that the
parties, etc. will be unable to make sufficient statements regarding the matters
due to the obvious fact that making statements regarding the matters at an
open examination will significantly interfere with the business activities of the
party based on such trade secrets and that, without such statements, a proper
decision on the fact of the existence or non-existence of the infringement of a
patent right or exclusive exploitation right that ought to be made based on the
said matters may not be made based solely on other evidence.
(2) The court shall, in rendering the ruling as provided in the preceding
paragraph, hear the opinions of the parties, etc. in advance.
(3) In the case of the preceding paragraph, where necessary, the court may cause
the parties, etc., to present a document stating the gist of the matters to be
stated. In such a case, no person may request the disclosure of the document
presented.
(4) When the court finds it necessary to hear opinions by disclosing the document
as provided in the second sentence of the preceding paragraph, the court may
23
disclose the document to the parties, etc., their counsels or assistant in courts.
(5) Where the examination on certain matters is to be closed under paragraph (1),
the court shall render such fact and reasons therefor prior to requiring the
public to leave the court. Upon completion of the examination on said matters,
the court shall allow the public to re-enter the court.
(Measures for Recovery of Credit)
Article 44 Upon the request of the holder of a breeder's right or of an exclusive
exploitation right, the court may, in lieu of the compensation for damages or in
addition thereto, order the person who has harmed the credit of the holder of
the breeder's right or of the exclusive exploitation right by intentionally or
negligently infringing his/her breeder's right or exclusive exploitation right, to
take measures necessary for the recovery of the credit of the holder of the
breeder's right or of the exclusive exploitation right.
Section 6 Maintenance and Rescission of a Variety Registration
(Registration Fee)
Article 45 (1) The holder of a breeder's right shall pay a registration fee, the
amount of which shall be specified by the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries but not exceeding 36,000 yen for each
variety registration each year until the expiration of the duration as provided
in Article 19 paragraph (2).
(2) The provision of paragraph (1) of this Article shall not apply where the holder
of a breeder's right is the national government.
(3) Notwithstanding the provision of paragraph (1) of this Article, where the
national government and other person jointly hold a breeder's right and they
have an agreement on the sharing of the breeder's right, the amount of the
registration fee set forth in paragraph (1) of this Article shall be the amount
calculated by multiplying the amount of the registration fee specified by the
Ordinance of the Ministry of Agriculture, Forestry and Fisheries pursuant to
paragraph (1) of this Article by the percentage of the share of such other
person, which shall be paid by such other person.
(4) Where there is a fraction less than 10 yen in the amount of the registration
fee as calculated pursuant to the provision of paragraph (3) of this Article, such
a fraction shall be discarded.
(5) The registration fee for the first year prescribed in paragraph (1) of this
Article shall be paid within 30 days from the date of public notice in accordance
with the provisions of Article 18 paragraph (3).
(6) The registration fee for each year after the second year prescribed in
paragraph (1) of this Article shall be paid by the end of the previous year.
24
(7) Where the holder of the breeder's right fails to pay registration fee within the
time limit prescribed in paragraph (6) of this Article, he/she may make a late
payment of the registration fee within 6 months after the expiration of period
of time.
(8) The holder of a breeder's right who makes a late payment of the registration
fee pursuant to the provision of paragraph (7) of this Article shall pay, in
addition to the registration fee to be paid under the provision of paragraph (1)
of this Article, a registration surcharge of the same amount as the registration
fee.
(Payment of the Registration Fee by Interested Persons)
Article 46 (1) An interested person may pay the registration fee even against the
will of the holder of the breeder's right.
(2) The interested person who has paid the registration fee pursuant to the
provision of paragraph (1) of this Article may claim reimbursement of the
expenses to the limit of the actual profit gained by the holder of the breeder's
right.
(Examination of a Registered Variety)
Article 47 (1) The Minister of Agriculture, Forestry and Fisheries may order the
holder of a breeder's right or of an exclusive exploitation right to submit entire
plants or parts of plants of the registered variety or other material, where
he/she finds it necessary in order to verify the maintenance of the expressions
of the characteristics of the registered variety.
(2) The Minister of Agriculture, Forestry and Fisheries shall cause officers of the
Ministry of Agriculture, Forestry and Fisheries to carry out on-site inspections
or cause the NCSS to carry out growing tests in the case prescribed in
paragraph (1) of this Article.
(3) The provisions of paragraphs (3) to (6) inclusive of Article 15 shall apply
mutatis mutandis to the on-site inspections or growing tests set forth in
paragraph (2) of this Article.
(Change of Denomination of a Registered Variety)
Article 48 (1) When it is found that the denomination of a registered variety falls
under any of the provisions of items 2 to 4 inclusive of Article 4 paragraph (1),
the Minister of Agriculture, Forestry and Fisheries may, upon the request of an
interested person or ex officio, order the holder of the breeder's right to submit
another denomination which does not fall under any of the items of the said
paragraph, designating a reasonable period of time.
(2) When a denomination falling under none of the items of Article 4 paragraph
(1) has been submitted pursuant to the provisions of paragraph (1) of this
25
Article, the Minister of Agriculture, Forestry and Fisheries shall change the
denomination of the said registered variety to the submitted denomination by
entering it in the Registry of Plant Varieties.
(3) When the Minister of Agriculture, Forestry and Fisheries has changed the
denomination of a registered variety pursuant to the provision of paragraph (2)
of this Article, he/she shall notify the holder of the breeder's right for the said
registered variety and publicly notify information to that effect.
(Rescission of the Variety Registration)
Article 49 (1) The Minister of Agriculture, Forestry and Fisheries shall rescind a
variety registration in any one of the following cases:
(i) where it has turned out that the variety was registered in violation of the
provisions of Article 3 paragraph (1), Article 4 paragraph (2), Article 5
paragraph (3), Article 9 paragraph (1) or Article 10;
(ii) where it has turned out that, after the variety registration, the registered
variety no longer satisfies the requirements listed in item 2 or 3 of Article 3
paragraph (1);
(iii) where, after the variety registration, the holder of the breeder's right has
become a person who may not enjoy a breeder's right pursuant to the
provisions of Article 10;
(iv) where the registration fee for the first year is not paid within the period
provided in Article 45 paragraph (5);
(v) where the registration fee and the registration surcharge are not paid
within the period provided in Article 45 paragraph (7);
(vi) where the person who was ordered to submit material pursuant to the
provisions of Article 47 paragraph (1) fails to comply with the order without
justifiable grounds; or
(vii) when the person who was ordered to submit another denomination of the
registered variety pursuant to the provisions of paragraph (1) of this Article
fails to comply with the order without justifiable grounds.
(2) A hearing pertaining to the rescission of a variety registration pursuant to
any of the provisions of items 1, 2, 3, 6, or 7 of paragraph (1) of this Article
shall be held upon giving a notice sufficiently before the hearing, to the holder
of an exclusive exploitation right or of any other rights registered in relation to
the breeder's right pertaining to the said variety registration.
(3) Where the persons prescribed in paragraph (2) of this Article request to
participate in the said hearing pursuant to the provisions of Article 17
paragraph (1) of the Administrative Procedure Act (Act No. 88 of 1993), the
chairperson of the hearing set forth in paragraph (2) of this Article shall
permit him/her to do so.
(4) When the variety registration has been rescinded pursuant to the provisions
26
of paragraph (1) of this Article, the breeder's right shall be extinct at the time
of cancellation. However, in the case of any of the following items, the breeder's
right shall be deemed to have been extinct retroactively from the time specified
respectively in those items.
(i) the case falling under item 1 or 4 of paragraph (1) of this Article: the time of
variety registration;
(ii) the case falling under item 3 of paragraph (1) of this Article: the time when
the said item became applicable; or
(iii) the case falling under item 5 of paragraph (1) of this Article: the time when
the time limit provided in Article 45 paragraph (6) has elapsed.
(5) When the variety registration has been canceled pursuant to the provisions of
paragraph (1) of this Article, the Minister of Agriculture, Forestry and
Fisheries shall notify the holder of the breeder's right pertaining to the said
variety registration and publicly notify information to that effect.
(6) With respect to the rescission of a variety registration under the provisions of
item 4 or 5 of paragraph (1) of this Article, the provisions of Chapter III
(excluding Articles 12 and 14) of the Administrative Procedure Act shall not
apply.
Section 7 Miscellaneous Provisions
(Jurisdiction for an Overseas Resident)
Article 50 With respect to the breeder's right or any other rights relating to a
breeder's right held by a person who has neither domicile nor residence (nor
business office, in the case of a juridical person) in Japan, the location of the
Ministry of Agriculture, Forestry and Fisheries shall be deemed to be the
location of the property under Article 5 paragraph (4) of the Code of Civil
Procedure.
(Special Provisions for application of an Objection to a Variety Registration)
Article 51 (1) The provision of Article 45 of the Administrative Appeal Act shall
not apply to application of an objection to a variety registration and,
notwithstanding the provision of Article 48 of the said Act, the provision of
Article 14 paragraph (3) of the said Act shall not apply.
(2) The proceedings of an objection to a variety registration pursuant to the
Administrative Appeal Act shall be held upon giving a notice sufficiently before
the proceedings, to the holder of the breeder's right or of the exclusive
exploitation right or of any other rights registered in relation to the said
variety registration.
(3) Where the person who received a notice pursuant to the provisions of
paragraph (2) of this Article requests to participate in the said application of
27
an objection, the Minister of Agriculture, Forestry and Fisheries shall permit
him/her to do so.
(Registration in the Registry of Plant Varieties)
Article 52 (1) The following matters shall be registered in the Register of Plant
Varieties kept in the Ministry of Agriculture, Forestry and Fisheries:
(i) grant, transfer, extinction or restriction on the disposition, of a breeder's
right;
(ii) grant, preservation, transfer, modification, extinction or restriction on the
disposition, of an exclusive exploitation right or of a non-exclusive
exploitation right; or
(iii) establishment, transfer, modification, extinction or restriction on
disposition, of a pledge on a breeder's right, on an exclusive exploitation
right or on a non-exclusive exploitation right.
(2) In addition to what is provided for in this Act, matters necessary for variety
registration and the Registry of Plant Varieties shall be prescribed by the
Ordinance of the Ministry of Agriculture, Forestry and Fisheries.
(Request for Certification)
Article 53 (1) Any person may file a request for any of the following from the
Minister of Agriculture, Forestry and Fisheries, pursuant to the provisions of
the Ordinance of the Ministry of Agriculture, Forestry and Fisheries:
(i) certificate relating to an application for variety registration or a registered
variety;
(ii) issue of an transcript or extract of the Registry of Plant Varieties or
(iii) inspection or copying of the Registry of Plant Varieties or an request filed
set forth in Article 5 paragraph (1), photograph or other material attached
thereto (excluding those which the Minister of Agriculture, Forestry and
Fisheries considers necessary to be kept confidential).
(2) The provisions of Rules of Act on Access to Information Held by
Administrative Organs (Act No. 42 of 1999) shall not apply to the Registry of
Plant Varieties, to applications filed under Article 5 paragraph (1), nor to
photographs or other material attached thereto (referred to in the next
paragraph as "the Registry of Plant Varieties, etc.")
(3) The provisions of Chapter IV of the Act on the Protection of Personal
Information Held by Administrative Organs (Act No. 58 of 2003) shall not
apply to possessed personal information (referring to possessed personal
information as provided in Article 2 paragraph (3) of the said Act) recorded in
the Registry of Plant Varieties, etc.
(Fees)
28
Article 54 (1) The person filing a request pursuant to the provisions of
paragraph (1) of Article 46 shall pay the fee in an amount to be specified, in
consideration of the actual costs, by the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries.
(2) The provisions of paragraph (1) of this Article shall not apply where the
person who should pay the fee pursuant to the provision of the said paragraph
is the national government.
(Mark of Registered Variety)
Article 55 Any person who transfers propagating material in the course of
business shall make efforts to place a mark, on the propagating material of a
registered variety he/she transfers or the package thereof, which indicates the
said propagating material is of a registered variety (hereinafter referred to as
"mark of registered variety"), pursuant to the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries.
(Prohibition of Fictitious manifestation of intention)
Article 56 Any person shall be prohibited from doing any of the following acts;
(i) placing a mark of registered variety or a confusing mark therewith on
propagating material of anon-registered variety or the package thereof,
(ii) transferring or displaying for the purpose of transfer the propagating
material of a non-registered variety with a mark of registered variety or a
confusing mark therewith on them or on the package thereof,
(iii) giving in an advertisement, for the purpose of transferring the propagating
material of a non-registered variety, an indication that the propagating
material is of a registered variety or a confusing indication therewith.
(Effects of Convention)
Article 57 Where there are specific provisions relating to the protection of new
plant varieties in any convention, such provisions shall prevail.
Chapter III Designated Seed
(Notification by Seed Dealers)
Article 58 (1) A seed dealer shall notify the Minister of Agriculture, Forestry and
Fisheries of the following matters, pursuant to the provisions of the Ordinance
of the Ministry of Agriculture, Forestry and Fisheries. However, this shall not
apply to those seed dealers specified by the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries.
(i) the name and the domicile of the seed dealer;
(ii) the kinds of designated seeds which the seed dealer handles; and
29
(iii) other matters specified by the Ordinance of the Ministry of Agriculture,
Forestry and Fisheries.
(2) The same shall apply whenever any change is made in the matters set forth
in paragraph (1) of this Article.
(3) The notification under paragraphs (1) and (2) of this Article shall be due,
where business has been newly commenced, within two weeks after the
commencement, and whenever any change is made in the matters referred to in
paragraph (1) of this Article, within two weeks after such change.
(Indication of Designated Seeds)
Article 59 (1) Designated seeds shall not be sold unless its package is furnished
with an indication containing the following matters or it is attached with a
voucher indicating the said matters. However, this shall not apply where the
matters listed in items 1 to 4 inclusive and item 6 of this paragraph pertaining
to designated seeds are indicated by a notice or other readily visible means, or
where designated seeds are sold by a person other than seed dealers.
(i) the name and the domicile of the seed dealer providing these matters;
(ii) the type and the variety name (in the case of grafted saplings, the types
and the variety names of scion and rootstock);
(iii) the place of production;
(iv) in the case of seed, the date of production or the time limit of validity and
the germination percentage;
(v) the quantity; and
(vi) any other matters specified by the Ordinance of the Ministry of Agriculture,
Forestry and Fisheries.
(2) The indication of the place of production under item 3 of paragraph (1) of this
Article shall be done, in the case of a domestic product, by stating the
prefecture in which the said place of the production is located, and, in the case
of a foreign product, by stating the country in which the said place of the
production is located.
(3) In addition to what is provided in paragraphs (1) and (2) of this Article, with
regard to certain designated seeds for which he/she finds an indication is
necessary for users to identify its suitable location for cultivation, usage and
other features relevant to cultivation or exploitation in the selecting seeds of
varieties suitable to the natural and economic conditions, the Minister of
Agriculture, Forestry and Fisheries shall determine and publicize the matters
to be indicated for such identification and any other standard relating to the
said indication, with which the seed dealers should comply.
(4) The Minister of Agriculture, Forestry and Fisheries may, where any seed
dealer fails to comply with the standards determined pursuant to the
provisions of paragraph (3) of this Article, issue to the seed dealer a
30
recommendation concerning the standards to be complied with.
(Order relating to Designated Seeds)
Article 60 (1) The Minister of Agriculture, Forestry and Fisheries may order any
seed dealer who has violated the provisions of paragraphs (1) and (2) of Article
50 to indicate the matters listed in each item of paragraph (1) of the said
Article or to change the contents of the indicated matters, or may prohibit the
sale of the designated seeds pertaining to the act of violation.
(2) The Minister of Agriculture, Forestry and Fisheries may, where any seed
dealer fails to comply with the recommendation issued pursuant to the
provisions of paragraph (4) of Article 50, order the seed dealer to comply with
the standards set out under paragraph (3) of the said Article, designating a
time limit.
(Standards relating to the Production of Designated Seeds)
Article 61 (1) The Minister of Agriculture, Forestry and Fisheries shall, where
he/she finds it particularly necessary in order to secure the distribution of
designated seeds of good quality, determine and publicize standards relating to
the production, conditioning, stocking or packaging, of the said designated
seeds, that should be complied with by persons producing the said seeds in the
course of business and seed dealers.
(2) The Minister of Agriculture, Forestry and Fisheries may, where a person
producing the designated seeds in the course of business or a seed dealer fails
to comply with the standards determined under the provisions of paragraph (1)
of this Article, issue to such a person a recommendation concerning the
standards be complied with.
(3) The Minister of Agriculture, Forestry and Fisheries may, where any person
producing the designated seeds in the course of business or any seed dealer
fails to comply with the recommendation issued under paragraph (2) of this
Article, publish the fact of non-compliance.
(Collection of Designated Seeds)
Article 62 (1) The Minister of Agriculture, Forestry and Fisheries may cause
officers of the Ministry of Agriculture, Forestry and Fisheries to collect from
seed dealers such quantities of designated seeds as are necessary for inspection.
However, compensation equivalent to the market value shall be paid.
(2) In the case referred to in paragraph (1) of this Article, such officers shall,
where the seed dealer so requests, show a certificate to identify his/her official
status.
(Collection of Designated Seeds made by the NCSS or the National Livestock
31
Breeding Center)
Article 63 (1) The Minister of Agriculture, Forestry and Fisheries may, when
he/she finds it necessary, cause the NCSS or the Incorporated administrative
agency National Livestock Breeding Center (hereinafter referred to as "NLBC")
in accordance with the classes, specified by the Ordinance of the Ministry of
Agriculture, Forestry and Fisheries to collect from seed dealers such quantities
of designated seeds as are necessary for inspection. However, compensation
equivalent to the market value shall be paid.
(2) Where the collection is conducted by the NCSS or the NLBC pursuant to the
provisions of paragraph (1) of this Article, the Minister of Agriculture, Forestry
and Fisheries shall issue an instruction to the NCSS or the NLBC to designate
the date, place and other relevant items of information.
(3) The NCSS or the NLBC, having conducted the collection referred to in
paragraph (1) of this Article in accordance with an instruction set forth in
paragraph (2) of this Article, shall report the result of the inspection to the
Minister of Agriculture, Forestry and Fisheries pursuant to the Ordinance of
the Ministry of Agriculture, Forestry and Fisheries.
(4) In the case referred to in paragraph (1) of this Article, officials of the NCSS or
the NLBC performing the collection pursuant to the provisions of the said
paragraph shall, if the seed dealer so requests, show a certificate to identify
his/her status.
(Orders to the NCSS or the NLBC)
Article 64 The Minister of Agriculture, Forestry and Fisheries may, when he/she
finds it necessary in order to ensure an appropriate implementation of the
collection under paragraph (1) of Article 52, issue orders to the NCSS or the
NLBC in relation to the collection.
(Collection of Reports)
Article 65 The Minister of Agriculture, Forestry and Fisheries may, within such
limits as are necessary for the enforcement of this Act, order seed dealers to
submit reports relating to their business or to submit books or other documents.
(Delegation of Authority to Prefectural Governors)
Article 66 (1) Part of the authority of the Minister of Agriculture, Forestry and
Fisheries under the provisions of Article 59 paragraph (4), Article 60, Article
61 paragraph (2) and (3), Article 62 and Article 65 may be delegated to
Prefectural Governors, pursuant to the provisions of the Cabinet Order.
(2) Part of the authority of the Ministry of Agriculture, Forestry and Fisheries
provided in this Chapter may be delegated to the Regional Agricultural
Administration Offices, pursuant to the provisions of the Ordinance of the
32
Ministry of Agriculture, Forestry and Fisheries.
Chapter IV Penal Provisions
(Crime of Infringement)
Article 67 Any person who has infringed a breeder's right or an exclusive
exploitation right shall be punished by imprisonment with work for not more
than ten years or by a fine of not more than 10,000,000 yen, or combination
thereof.
(Crime of Fraud)
Article 68 Any person who has obtained a variety registration by means of a
fraudulent act shall be punished by imprisonment with work for not more than
three years or by a fine of not more than 3,000,000 yen.
(Crime of Fictitious manifestation of intention)
Article 69 Any person who fails to comply with the provision of Article 56 shall
be punished by imprisonment with work for not more than three years or by a
fine of not more than 3,000,000 yen.
(Crime of Breach of Protective Order)
Article 70 (1) Any person who fails to comply with the protective order shall be
punished by imprisonment with work for not more than five years or by a fine
of not more than 5,000,000 yen, or combination thereof.
(2) The prosecution of the crime under the preceding paragraph may not be
initiated unless a complaint is filed.
(3) The crime prescribed in paragraph (1) of this Article shall also apply to a
person who commits the said crime abroad.
(Crime of Sales of Designated Seeds with False Labeling)
Article 71 Any person who falls under any of the following items shall be
punished by a fine of not more than 500,000 yen.
(i) a person who has sold designated Seeds with false indication concerning the
matters to be shown pursuant to the provisions of paragraphs (1) and (2) of
Article 59; or
(ii) a person who has sold designated Seed in violation of the dispositions taken
pursuant to the provisions of Article 60 paragraph (1) or (2).
(Crime of False Notification)
Article 72 Any person who falls under any of the following items shall be
punished by a fine of not more than 300,000 yen.
33
(i) a person who failed to notify pursuant to the provisions of Article 58 or
made false notification;
(ii) a person who, without justifiable grounds, has refused, obstructed or
evaded the collection set forth under Article 62 paragraph (1) or Article 63
paragraph (1); or
(iii) a person who failed to submit a report or document specified pursuant to
the provision of Article 65 or submitted a false report or document.
(Dual Liability)
Article 73 (1) Where a representative of a juridical person, or an agent, an
employee or any other worker of a juridical person or an individual has
committed an act in violation of provisions prescribed in any of the following
items with regard to the business of the juridical person or the individual, not
only the offender shall be punished but also the said juridical person shall be
punished by the fine prescribed respectively in those items, or the said
individual shall be punished by the fine prescribed in the respective Articles.
(i) Article 67 or Article 70 paragraph (1): fine of not more than 300,000,000
yen;
(ii) Article 68 or Article 69: fine of not more than 100,000,000 yen;
(iii) Articles 71 or item 1 or 3 of Article 70: fine prescribed in any of these
Articles.
(2) In the case referred to in the preceding paragraph, the complaint under
Article 70 paragraph (2) against the offender shall also be effective against the
juridical person or individual and the complaint against the juridical person or
individual shall also be effective against the offender.
(3) When a juridical person or an individual is to be punished by fine due to the
act of violation prescribed in Article 67 or Article 70 paragraph (1) pursuant to
the provision of paragraph (1) of this Article, the period of prescription shall be
the one for the crime prescribed in those provisions.
(Civil Non-penal fine for Violation of the Order)
Article 74 Where the NCSS or the NLBC violated the order prescribed in Article
15 paragraph (6) (including the cases where it is applied mutatis mutandis
pursuant to Article 47 paragraph (3)) or Article 64, members of the executive
organ that directed the violation shall be punished by a civil non-penal fine of
not more than 200,000 yen.
(Civil Non-penal fine for Violation of the Obligation of Using a Denomination)
Article 75 Any person who violated the provisions of Article 22 shall be punished
by a civil non-penal fine of not more than 100,000 yen.
34
Supplementary Provisions [Extract from the Act No. 49 of May 18, 2007]
[Extract]
(Effective Date)
Article 1 This Act shall come into effect as from December 1st, 2007. However,
the provision of Article 6 of the Supplementary Provisions of this Act shall
come into force as from the day of promulgation.
(Transitional Measure pertaining to the Application of the Provisions on
Infringement)
Article 2 The provisions of Chapter II, Section 5 (including the cases where they
are applied mutatis mutandis under Article 14 paragraph (5) of the New Act) of
the Plant Variety Protection and Seed Act as revised by this Act (hereinafter
referred to as "New Act") shall also apply to matters arose prior to the
enforcement of this Act, unless otherwise provided for by this Act. However,
this shall not preclude the effect given by the provisions of Chapter II, Section
5 (including the cases where they are applied mutatis mutandis under Article
14 paragraph (5) of the Former Act) of the Plant Variety Protection and Seed
Act before the revision by this Act (hereinafter referred to as "Former Act").
Article 3 (1) The provisions of Article 34 paragraph (1) and Article 39 of the New
Act shall not apply to cases in which the oral argument has, prior to the
enforcement of this Act, been concluded in the High Court or the District Court
as the second instance and cases in which an agreement has, prior to the
enforcement of this Act, been reached to reserve the right to appeal against the
judgment of the Summary Court or the judgment of the District Court as the
first instance.
(2) The provisions of Article 40 to Article 42 of the New Act shall not apply to
cases in which the court procedure has, prior to the enforcement of this Act,
terminated, cases in which the oral argument has, prior to the enforcement of
this Act, been concluded in the High Court or the District Court as the second
instance and cases in which an agreement has, prior to the enforcement of this
Act, been reached to reserve the right to appeal against the judgment of the
Summary Court or the judgment of the District Court as the first instance.
(Transitional Measure concerning Property Arising from a Criminal Act
Committed prior to the Enforcement of this Act)
Article 4 In the case where this Act enters into force after the enforcement of the
Act for Partial Revision of the Penal Code to Respond to an Increase in
International and Organized Crimes and Advancement of Information
Processing (Act No. of 2007), the provisions of Article 9 paragraph (1) to (3),
35
Article 10 and Article 11 of the Act for Punishment of Organized Crimes,
Control of Crime Proceeds and Other Matters (Act No. 136 of 1999) shall also
apply to acts committed after the enforcement of this Act with regard to
properties arising from or acquired through a criminal act constituting of
Article 56 of the Former Act (including a criminal act committed outside Japan,
which would constitute any of these offenses if it were committed in Japan and
which constitutes an offense under the laws and regulations of the place of the
act) that was committed prior to the enforcement of this Act in order to acquire
illicit gains, or properties acquired as a reward for Article 56 of the Former Act.
In this case, these properties shall be deemed as criminal gains under Article 2
paragraph (2) item (i) of the Organized Crime Punishment Act.
(Transitional Measure concerning Penal Provisions)
Article 5 With regard to a period of statute of limitations of a crime that was
committed prior to the enforcement of this Act, notwithstanding the provision
of Article 73 paragraph (3) of the new Act, the provisions then in force shall
remain applicable.
(Delegation to the Cabinet Order)
Article 6 In addition to what is provided for in Articles 2 to 5 of the
Supplementary Provisions of this Act, the transitional measures necessary for
the enforcement of this Act shall be specified by the Cabinet Order.
(Review)
Article 7 After five years have passed since the enforcement of this Act, the
government, when it finds it necessary by taking into consideration the state of
enforcement of the New Act, shall review the provisions of the New Act, and
shall take necessary measures based on the review results.
(Partial Revision of the Act on the Incorporated administrative agency
National Center for Seeds and Seedlings and Act on the Incorporated
administrative agency National Livestock Breeding Center)
Article 8 The term "Article 53-2 paragraph (1)" in the provisions of the following
Acts shall be replaced with the term "Article 63 paragraph (1)";
(i) Act on the Incorporated administrative agency National Center for Seeds
and Seedlings (Act No. 184 of 1999) Article 11 paragraph (2) item (i)
(ii) Act on the Incorporated administrative agency National Livestock Breeding
Center (Act No. 185 of 1999) Article 11 paragraph (2) item (ii)
36
