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Act On The Protection Of New Varieties Of Plants (1)

Original Language Title: Loi sur la protection des obtentions végétales (1)

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belgiquelex.be - Carrefour Bank of Legislation

10 JANVIER 2011. - Plant Breeding Protection Act (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provisions
Subject matter
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
This Act partially transposes Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions.
Definitions
Art. 2. For the purposes of this Act, it shall be understood by:
1° "Office": the Office responsible for issuing certificates of obstructor, instituted with the Federal Public Service which has the protection of plant obtained in its powers;
2° "Minister": the Minister who has the protection of plant varieties in his duties;
3° "Contracting Party": a State or intergovernmental organization member of the International Union for the Protection of Plant Breeding;
4° "Service of a Contracting Party": the department responsible for granting the right of obstruction of that party;
5° Variety: a plant set of a single botanical taxon of the lowest known rank that, whether or not it meets the conditions for the granting of a right of obstacle, may be:
- defined by the expression of characters resulting from a certain genotype or combination of genotypes,
- distinguished from any other plant set by the expression of at least one of the said characters,
and
- considered an entity in respect of its ability to be reproduced without change;
6° "variate constituents": whole plants or parts of plants to the extent that these parts can produce whole plants;
7° "written": a series of intelligible signs signed and accessible that can be viewed at a later date, regardless of their support and mode of transmission.
CHAPTER 2. - Material law
Section 1re. - Conditions for the granting of the right to obtain
Purpose of protection
Art. 3. Varieties of all types and botanical species, including their hybrids, may be subject to a breeder's right.
Varieties likely to be protected
Art. 4. The breeder's right is granted when the variety is distinct, homogeneous, stable and new.
In addition, the variety must be designated by a name in accordance with the provisions of section 42.
Distinction
Art. 5. § 1er. A variety is considered to be distinct if it is clearly distinguished, by reference to the expression of the characters that result from a genotype or combination of given genotypes, of any other variety whose existence is notoriously known at the date of filing of the application determined in accordance with section 32 or, where applicable, at the priority date determined in accordance with section 33.
§ 2. The existence of another variety is, in particular, considered to be known if, on the date of filing of the application determined in accordance with section 32 or, where applicable, on the priority date determined in accordance with section 33:
1° this other variety is protected from plant varieties or is registered in an official register of varieties, in any State or in any intergovernmental organization competent in this field;
2° an application for the protection of plant varieties for that other variety or for registration in such an official register is filed, provided that in the meantime the application has given rise to the granting of protection or registration in the register;
3° the cultivation or marketing of this other variety is already underway;
4° this other variety is present in a reference collection or is described precisely in a publication.
Uniformity
Art. 6. A variety is considered homogeneous if it is sufficiently homogeneous in the expression of the characters included in the examination of the distinction and any other character used for the description of the variety, subject to the foreseeable variation given the particularities of its multiplication.
Stability
Art. 7. A variety is considered to be stable if the expression of the characters included in the examination of the distinction and any other character used for the description of the variety remains unchanged as a result of successive multiplications or, in the case of a particular multiplication cycle, at the end of each cycle.
New
Art. 8. § 1er. A variety is considered to be new if, on the date of filing of the application determined in accordance with section 32 or, where applicable, on the priority date determined in accordance with section 33, a variety of components or a variety of crop material have not been sold or otherwise disposed of to third parties, by the breeder or with his or her consent, for the purposes of the operation of the variety:
1° in the territory of Belgium, more than one year before the date mentioned above;
2° outside the territory of Belgium, more than four years or, in the case of trees or vines, more than six years before the date mentioned above.
§ 2. The assignment of various constituents to an official body for legal purposes or to third parties on the basis of a contract or any other legal relationship for exclusive purposes of production, reproduction, multiplication, conditioning or storage is not considered to be an assignment to third parties within the meaning of § 1er, provided that the obstructor retains the exclusive right of assignment of these various constituents or others and that no other assignment is made.
However, this assignment of various constituents is considered an assignment within the meaning of § 1er if these constituents are used repeatedly for the production of a hybrid variety and if there is a transfer of various components or a crop material of the hybrid variety.
Similarly, the assignment of various constituents by a company or company within the meaning of Article 54, §2, of the Treaty on the Functioning of the European Union to another of these companies or companies is not considered to be an assignment to third parties if one of them is wholly owned by the other or both is wholly owned by a third company or undertaking of that type, provided that no other assignment is made. This provision does not apply to cooperative corporations.
§ 3. The assignment of various components or crop materials of the variety that have been produced from cultivated plants for the purposes specified in Article 15, 2 and 3°, and that are not used for a new multiplication is not considered to be an exploitation of the variety, unless reference is made to this variety for the purpose of this sale.
Similarly, it is not taken into account the assignment to third parties if it is due to the fact or is the consequence of the fact that the breeder presented the variety in an official or officially recognized exhibition within the meaning of the Convention on International Exhibitions or in an exhibition organized in a Member State of the European Union and officially recognized as equivalent by that Member State.
Name
Art. 9. The applicant shall designate the variety by a name in accordance with section 42.
Section 2. - Right or cause
Right to protection
Art. 10. § 1er. The person who has created or has discovered and developed the variety or its right or cause, below referred to as the "obtentor", is entitled to the right of breeder.
§ 2. If the new variety has been created or discovered and developed by two or more persons, the law belongs jointly to these persons or their rightful persons or their respective beneficiaries, unless otherwise agreed.
§ 3. If the new variety was created or discovered and developed by an employee as part of his employment contract, the right will return to the employer unless otherwise stipulated.
Authorization to file an application for the right to obtain
Art. 11. § 1er. Any natural or legal person or body, assimilated to a legal person under the legislation under which the person reports, may apply for the right to obtain.
§ 2. An application may be filed jointly by two or more persons.
Section 3. - Effects of the right to obstruct
Extent of Right of Obtaining - Acts
Art. 12. § 1er. The right to obstruct is to reserve the right to perform the acts specified in § 2.
§ 2. Without prejudice to sections 14 and 15, the licensee's authorization is required for the following acts in respect of the various constituents, crop equipment or products manufactured directly from a protected variety harvesting equipment:
1° production or multiplication;
2° packaging for the purposes of multiplication;
3° offer for sale;
4° the sale or any other form of marketing;
5° import;
6° export;
7° detention for one of the purposes mentioned above.
The licensee may subject to conditions and limitations.
§ 3. § 2 applies to harvesting equipment only if it has been obtained by the unauthorized use of various constituents of the protected variety and unless the holder has been reasonably able to exercise his or her right in relation to the various constituents.
§ 4. § 2 applies to products manufactured directly from a protected variety harvesting material only if these products have been manufactured by the unauthorized use of the said crop material and unless the holder has been reasonably able to exercise his right in relation to the said crop material.
Extent of Obtaining Law - Varieties
Art. 13. § 1er. The provisions of section 12 also apply:
1° to varieties essentially derived from the protected variety, when it is not itself a essentially derivative variety,
2° to varieties that do not differ significantly from the protected variety in accordance with Article 5,
and
3° to varieties whose production requires repeated use of the protected variety.
§ 2. For the purposes of § 1er, 1°, a variety is deemed to be derived primarily from another variety, referred to as "initial variety", if
1° it is mainly derived from the original variety, or from a variety which is itself mainly derived from the original variety,
2° it differs significantly from the original variety in accordance with Article 5,
and
3° except in respect of differences resulting from derivation, it conforms to the original variety in the expression of essential characters that result from the genotype or combination of genotypes of the original variety.
§ 3. Essentially derived varieties can be obtained, for example, by selecting a natural or induced mutant or a somaclonal variant, by selecting an individual that varies among the plants of the original variety, by retrocroming or by processing by genetic engineering.
Derogation of the right to obstruct
Art. 14. § 1er. Notwithstanding Article 12, § 2, farmers are allowed to use, for the purpose of multiplication in their own exploitation, the proceeds of the harvest obtained by the cultivation, in their own exploitation, of a protected variety or of a variety referred to in Article 13.
§ 2. Conditions to give effect to the exemption provided for in § 1er and to safeguard the legitimate interests of the breeder and farmer are fixed by the King.
Limitation of the effects of the right to obstruct
Art. 15. The right of obstructor does not extend:
1° to acts performed in private and non-commercial terms;
2° to experimental acts;
3° to acts performed to create or develop other varieties;
4° to the acts referred to in Article 12, §§ 2, 3 and 4, relating to these other varieties, unless Article 13 is applicable;
5° to acts whose prohibition would be contrary to the provisions of Article 14 or Article 25.
Exhaustion of the right to obstruct
Art. 16. § 1er. The right of obstructor does not extend to acts relating to material of the protected variety, or to a variety referred to in Article 13, which has been commercialized in the territory of the European Union, by the holder or with his consent, or concerning material derived from that material, unless such acts:
1° implies a further multiplication of the variety in question, unless this multiplication is expected during the disposal of the equipment,
or
2° involves an export of variety material to reproduce the variety to a country that does not protect the varieties of the plant genus or plant species of which the variety is part, unless the material exported is intended for consumption.
§ 2. For the purposes of § 1er "Material" means in relation to a variety:
1° the various components in any form;
2° the product of the harvest, including whole plants and parts of plants;
3° any product made directly from the product of the harvest.
Use of various names
Art. 17. § 1er. Any person who, in the territory of Belgium, offers or cedes to third parties, for commercial purposes, a variety of constituents of a protected variety or a variety covered by section 13 is required to use a variety of names approved in accordance with section 42. In written form, the varied denomination must be easily recognizable and clearly legible. If a brand, trade name or similar indication is associated with the assigned diverse denomination, this denomination must be easily recognizable as such.
§ 2. § 1er continues to apply even after the termination of the right to obstruct.
Limitation of use of various names
Art. 18. § 1er. The holder may not use a right conferred with respect to a denomination identical to the varied denomination to obstruct the free use of that denomination in relation to that variety, even after the extinction of the right to obtain.
§ 2. A third party may use a right conferred with respect to a denomination identical to the various denomination to obstruct the free use of that denomination only if that right was granted prior to the attribution of the various denomination in accordance with Article 42.
§ 3. When a variety is entitled to a breeder's right, the name assigned to it or any other denomination with which it could be confused may not be used, in the territory of the European Union, in relation to another variety of the same botanical species or neighbouring species or for the material of that other variety.
The King defines the species considered neighboring.
Section 4. - Length and extinction of the right to obstruct
Duration of the right to obstruct
Art. 19. The right of obstructor is extinguished at the end of the twenty-fifth calendar year following that of granting the right of obstructor; for varieties of vines, trees and potatoes, he died at the end of the thirtieth calendar year.
Waiver of right of obstruction
Art. 20. § 1er. The licensee may waive the right to obstruct by a written and signed statement addressed to the Agency.
§ 2. The waiver shall result in the termination of the right of obstruction on the date the Agency receives the declaration referred to in § 1er and subject to its registration in the register referred to in section 51, below referred to as "the Register". However, if, on that date, the annual fee for the maintenance of the right of obligor has not yet been paid, the waiver of the right of obligor is effective at the end of the period covered by the last annual fee paid.
§ 3. The waiver may not be entered if there are, according to the registrations entered in the Register, persons who, in respect of the right of obligor, hold rights or have obtained licences, or have initiated a procedure for claiming the right of obligor, unless such persons do not agree to the waiver.
§ 4. The provisions of this Article shall apply by analogy to the application of a right of obstruction.
Nullity of the right to obstruct
Art. 21. § 1er. The right of enforcer is declared null by the court if:
1° the conditions laid down in Article 5 or 8 were not fulfilled at the time of the grant of the right of obstruction,
or
2° where the grant of the right of enforcer was essentially based on the information and documents provided by the applicant, the conditions set out in sections 6 and 7 were not effectively met at the time of the grant of the right of enforcer,
or
3° the right of obstructor was granted to a person who was not entitled to it, unless he was transferred to the person entitled to it.
§ 2. The right of a declared void breeder shall be deemed not to have had the effects provided for in this Act from the beginning.
Loss of the right to obstruct
Art. 22. § 1er. In the absence of payment of the annual fee provided for in section 50 within the prescribed time limit, the holder shall be deprived of his or her rights. The due date is effective on the date of the annual unpaid tax.
§ 2. The court shall waive the licensee's right of obstruction, with effect in futurum, if it is determined that the conditions set out in section 6 or 7 are no longer met.
If it is established that these conditions were no longer met on a date prior to the due date, the due date may take effect from that date.
§ 3. The Agency may issue a waiver of the licensee's right of conduct, with effect in futurum, after a stay and within a reasonable period of time that is notified to it:
1° if the holder failed to comply with the obligation referred to in section 43, § 1er,
or
2° if the licensee does not respond to an application by the Agency under section 44, § 3, for the control of the maintenance of the variety,
or
3° if the licensee does not propose another appropriate denomination while the Agency plans to remove the varied denomination.
§ 4. Except in the cases referred to in § 1er and 2, the termination shall take effect on the date mentioned in the notification referred to in § 3, subject to its registration in the Register.
Section 5. - Right of obstructor as a property object
Transfer of ownership
Art. 23. § 1er. The request for a right of enforcer and the right of enforcer may be transferred to a person or persons who are entitled to the right or cause.
§ 2. The transfer of a request or a right of obstruction shall be made in writing in a matter of nullity.
§ 3. Unless otherwise provided in section 62, the transfer shall not affect the rights acquired by third parties before the date of the transfer.
§ 4. Any transfer must be notified to the Agency in the forms and deadlines set by the King.
§ 5. The transfer has no effect on the Agency and is only applicable to third parties from the date of receipt by the Office of documentary evidence as required by the King and subject to its registration in the Register. However, prior to the registration of the Register, a transfer is enforceable to third parties who acquired rights after the date of the transfer, but who were aware of the transfer when the transfer was acquired.
Contractual licences
Art. 24. § 1er. A request for an enforcer's right or an enforcer's right may, in whole or in part, be subject to contractual licences. These licences may be exclusive or non-exclusive.
§ 2. Licences must be issued in writing only if they are invalid.
§ 3. The applicant or the licensee shall promptly notify the Agency in the manner determined by the King of the licences granted in Belgium.
§ 4. The licences shall have effect on the Agency and shall be subject to third parties only from the date of receipt by the Agency of the notification referred to in § 3 and subject to its registration in the Register. However, prior to the registration of the Register, a licence may be applied to third parties who acquired rights after the date of the licence concession, but who were aware of the licence when the licence was acquired.
§ 5. The applicant or the licensee may invoke the rights conferred by the application or the right of the applicant to a person holding a licence that violates any of the conditions or limitations attached to the licence.
Mandatory licences
Art. 25. § 1er. The Minister may issue a mandatory licence for the non-exclusive operation of a plant variety covered by a breeder's right:
1° to the person or persons who make the request, in the manner determined by the King, but only for reasons of public interest and on reasonable conditions. The King may cite some cases as examples of the public interest;
2° to the holder of the breeder's right of a variety essentially derived if the criteria set out in point 1° are met;
3° to the holder of a patent in respect of a biotechnological invention where he cannot exploit it without prejudice to an earlier breeder's right, provided that the biotechnological invention represents an important technical advance of considerable economic interest in relation to the protected plant variety and provided that the licence is awarded primarily for the supply of the national market;
4° to the holder of a patent in respect of a biotechnological invention, where the holder of an enforcer's right has, in accordance with the provisions of the Invention Patent Act, obtained a mandatory licence for the non-exclusive operation of the invention covered by that patent because he cannot exploit the right of obstructor without prejudice to that earlier patent and provided that this licence is granted primarily for the procurement of the patent.
§ 2. Licensees referred to in § 1er must establish that they have failed to apply to the holder of the right to obtain an amicable licence.
§ 3. The application shall be forwarded by the Minister to the Commission of Mandatory Licences referred to in section 27, so that the applicant may hear, conciliate, and, if so, give the Minister a reasoned opinion on the merits of the application. The Board, in its opinion, attached the case file.
The Minister then decides to make a reservation at the request and notify the interested parties of the decision in the manner decided by the King.
§ 4. In the case referred to in § 1er, 3°, the application for a mandatory licence is declared to be founded if the holder of the right of dominant breeder does not contest the dependence of the applicant's patent, its validity, or the fact that the invention represents an important technical progress, of considerable economic interest, in relation to the protected plant variety.
The fact for the holder of the right of prior obstructor to deny the dependency of the patent of the applicant of the licence shall in full right prevail for the licensee to exploit the invention described in its own patent as well as the dominant plant variety without the power of that owner to be prosecuted in counterfeit by the holder of the right of prior obstructor.
The contestation of the validity of the dependent patent suspends the administrative procedure relating to the recognition of the validity of the application for a licence, provided that an action in invalidity of the said patent is already brought before the competent authority by the holder of the right of dominant obligor, or that the applicant cites the applicant of the licence before the court within two months of the notification made to him of the application for a licence.
The contestation of significant technical progress, of a considerable economic interest of the dependent patent in relation to the plant variety described in the dominant breeder's right, suspends the administrative procedure relating to the recognition of the merits of the licence application, provided that the holder of the dominant breeder's right introduces, within two months of the notification made to him from the filing of the licence application, an application to the court sitting as a reference. The judicial decision is not subject to appeal or opposition.
The non-observance of the period provided for in the preceding two paragraphs leads to the infringement of the right of a dominant obstructor to make his appeal before the court.
§ 5. Within four months of the notification of the decision, the licensee and the Licensee conclude a written agreement concerning their mutual rights and obligations. The minister is informed.
In the absence of a convention within the period referred to above, the rights and mutual obligations shall be fixed by the court sitting as in reference, on the summons of the most diligent party.
A copy of the final judgment shall be transmitted free of charge to the Minister by the Clerk in the month of delivery.
Reciprocal rights and obligations specify the type of acts covered and take into account the interests of any holder of a right of enforcer who would be affected by the granting of the mandatory licence. They have a time limit, provide for the payment of adequate remuneration to the licensee and may impose on the licensee certain obligations that it is required to meet to allow the use of the mandatory licence.
The person to whom the mandatory licence is issued must have appropriate financial and technical resources to operate the licence.
As long as new elements have been made, the review of the decisions taken with respect to their reciprocal obligations may be carried out at the request of the holder of the right of authority or the Licensee, and, where appropriate, the operating conditions. The review authority is the authority of which the decision emanates and the procedure to be followed is the same as the authority to conduct the review decision.
§ 6. Where an action in a claim filed under Article 61, § 1er, against the licensee is registered in the Register, the Minister may suspend the mandatory licensing procedure. He cannot resume the proceedings before the entry into the Register of Judgment in force of anything judged or a decision stating that it was terminated, by any other means, to the action in claim.
In the event of the transfer of the right of obstruction that has effect to the Agency, the new licensee shall become a party to the proceeding, on the applicant's request and the application for a licence that it has made to the new licensee has not been completed within two months of the receipt of the notification by which the Agency informed the licensee of the registration of the name of the new licensee on the Register. The request submitted by the applicant must be accompanied by sufficient documentary evidence to establish the insuccess of his efforts and, where appropriate, to demonstrate the steps taken with the new licensee.
§ 7. The Minister shall issue the mandatory licence by order, in accordance with the terms defined by the King. The decree is published in the Belgian Monitor.
§ 8. At the request of the holder of the right of obstruction and after having taken note of the Commission's notice, the Minister may withdraw the mandatory licence if it is the result of a judgment cast in force of a finding that the Licensee has committed himself to the holder of the right of obstructor of an unlawful act or has breached his obligations.
The withdrawal decision refers to the reason why the Board's opinion was not followed.
The withdrawal order is published by extract to the Belgian Monitor.
§ 9. As soon as the mandatory licence is granted, the relationship between the licensee and the Licensee shall be assimilated, except as set out in the granting order, to those between a grantor and a contractual Licensee.
CHAPTER 3. - The Council and the Commission
Obtaining Rights Council
Art. 26. § 1er. It is established with the Federal Public Service, which has the protection of plant varieties in its responsibilities, a Right of Obtaining Council, referred to as the "Council", composed of persons who are particularly qualified in legal, genetic, botanical or phytotechnology.
§ 2. The role, composition and functioning of the Council and its sections are determined by the King. Council members are appointed and revoked by the Minister.
§ 3. The Commission's operating costs are borne by the Federal Public Service budget referred to in § 1er.
Compulsory licensing Commission
Art. 27. § 1er. It is established with the Federal Public Service referred to in Article 26, § 1er, a Commission of Mandatory Licences, referred to as the Commission, whose mission is to carry out the tasks assigned to it by section 25.
The Commission is composed of ten members appointed by the Minister.
Eight members are appointed, in equal number, on the proposal of representative organizations:
- industry and trade,
- agriculture,
- small and medium-sized enterprises, and
- consumers.
The organizations referred to in the previous paragraph are designated by the Minister.
Two members are appointed from the members of the Council referred to in section 26. They remain members of the Commission for the duration of their mandate within the Commission, regardless of their membership of the Council.
The term of membership of the Commission is six years. He's renewable.
The Commission is chaired by one of its members, designated by the Minister for a term of three years renewable.
Opinions are adopted by consensus. In the absence of consensus, the opinion takes the different opinions.
The King determines how the Commission operates and organizes.
The Commission develops its rules of procedure. This comes into force after approval by the Minister.
§ 2. When the Minister receives a request for the granting of a mandatory licence, the Minister shall designate one or more qualified officers from the Commission, selected from the federal public service officials who have the economy in their duties.
The Commission defines the mission of the agents referred to in paragraph 1er and sets out the modalities under which these officers report on their mission. The Commission shall specify the conditions for the transmission of the documents referred to in paragraph 4 to ensure the protection of confidential information.
The officers commissioned for this purpose by the Minister are competent to collect any information, receive any written or oral testimony or testimony that they consider necessary for the fulfilment of their mission.
In performing their duties, these officers may:
1° with a warning of at least five working days or without a prior warning if they have reason to believe that there is a risk of destruction of parts useful to the instruction of the mandatory licence application, enter, during the usual hours of opening or working, in offices, premises, workshops, buildings, adjacent courses and enclosures whose access is necessary to the completion of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° to collect samples, according to the modes and conditions determined by the King;
4° seize, against receipt, the documents referred to in item 2 that are necessary for the fulfilment of their mission;
5° to commit experts whose mission they determine, according to the conditions determined by the King.
In the absence of confirmation by the Chairperson of the Commission within fifteen days, the seizure shall be lifted in full right. The person in whose hands the objects are seized may be incorporated as a judicial guardian.
The Chairperson of the Commission may release the seizure that he has confirmed, if any, upon the request of the owner of the seized objects addressed to the Commission.
By means of a warning of at least five working days or without a prior warning if they have reason to believe that there is a risk of the destruction of documents useful to the instruction of the mandatory licence application, commissioned agents may visit the inhabited premises by prior authorization of the President of the Commercial Court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
In carrying out their mission, they may require the assistance of the police services.
The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 3. The officers commissioned for this purpose submit their reports to the Commission. The Commission shall only issue its notice after hearing the licensee and the person who requires or has obtained the mandatory licence. Such persons may be assisted or represented either by a lawyer or by a person whom the Commission specifically associates in each case. The Commission also hears the experts and the persons it considers useful to question. It may require commissioned officers to complete additional information and provide a supplementary report.
At least one month before the date of its meeting, the Commission shall notify the persons to be heard at the meeting by registered mail. In the event of an emergency, the deadline is reduced by half.
§ 4. All voluntary impediments or impediments to the exercise of the mission entrusted by this Act to the commissioned officers shall be punished by imprisonment from eight days to three months and a fine from 500 to 20,000 euros or only one of these penalties.
Any false statement is punishable by the same penalties.
These include:
1° refuse to provide the information or to disclose the requested documents;
2° knowingly provide inaccurate information or documents.
The provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to offences covered by this paragraph.
§ 5. The Commission's operating costs are borne by the Federal Public Service budget referred to in Article 26, § 1er.
CHAPTER 4. - Procedure before the Agency
Section 1re. - Parties to the proceedings and agents
Parties to the procedure
Art. 28. § 1er. The following persons may be parties to the proceedings before the Agency:
1° the applicant who files an application for the right to obtain;
2° the author of an objection, within the meaning of Article 38, § 1er;
3° the holder;
4° any person whose application or request is a prerequisite to a decision of the Agency.
§ 2. The Agency may authorize, upon written request, any other person not referred to in § 1erbut which is directly and individually concerned, to intervene as a party to the procedure.
§ 3. Any natural or legal person, as well as any body assimilated to a legal person under the legislation of which he or she is a person within the meaning of §§ 1er and 2.
Mandate
Art. 29. Any designation of an agent shall be made in accordance with the terms defined by the King.
Section 2. - Request
Filing of application
Art. 30. The filing of the application for the right to obtain is made to the Agency either in person or by mail or in any other manner determined by the King.
Conditions to be met
Art. 31. § 1er. The request for the right to obtain must at least include:
1° a request for the granting of the right to obtain;
2° identification of botanical taxon;
3° information on the identity of the applicant or joint applicants;
4° the name of the breeder and the statement that no other person has, to the applicant's knowledge, participated in the creation or discovery and development of the variety. If the applicant is not the obstructor or is not the only obstructor, the applicant shall provide the relevant documentary evidence indicating in which capacity the applicant has acquired the right to the right to obstructor;
5° a provisional designation of the variety;
6° a technical description of the variety;
7° details of any prior marketing of the variety;
8° details of any other application for the variety.
§ 2. The application must meet the conditions and forms set out in this Act.
§ 3. The King may specify and supplement by other elements those mentioned in § 1er.
§ 4. The applicant proposes a varied denomination that can accompany the application.
Deposit date
Art. 32. The date of filing of the application for the right of authority is the date on which an application reaches the Agency in accordance with section 30, provided that the conditions of section 31, § 1er, be completed and the royalty due for the deposit under section 49, § 1erParagraph 1er, be paid.
Right of priority
Art. 33. § 1er. The priority right of an application is determined based on the date of receipt of this application. If applications have the same date of filing, their respective priorities shall be determined according to the order in which they have been received, if it may be established. Otherwise, they have the same priority.
§ 2. If the applicant or its predecessor in law has already applied for a right of obstruction for the variety in another Contracting Party than Belgium and if the date of filing is within twelve months of the filing of the first application, the applicant shall, for its application for the right of Belgian obstructor, have a right of priority under the first application, provided that the application still exists on the date of filing.
§ 3. The right of priority is therefore that, for the purposes of Articles 5, 8 and 10, the date of filing the first application is the date of filing the application for the right of Belgian obstructor.
§ 4. Any claim for a priority right is terminated if the applicant does not submit a copy of the first application to the Agency within three months of the filing date. If the first application has not been written in French, Dutch or German, the Agency may also require a translation of the first application in one of these languages.
Section 3. - Review
Consideration of the application in the form
Art. 34. § 1er. The Agency considers:
1° if the application meets the conditions set out in section 31;
2° where applicable, if a claim of priority is in accordance with Article 33, §§ 2 and 4;
and
3° if the royalty due to deposit under section 49, § 1erParagraph 1 was paid within the prescribed time limit.
§ 2. If the application, while complying with the conditions set out in section 32, does not meet the other conditions set out in section 31, § 2, the Agency invites the applicant to remedy any irregularities that may be found within the prescribed time limit.
§ 3. If the application does not meet the conditions set out in section 32, the Agency shall inform the applicant that the application is incomplete.
§ 4. In the event of an incomplete application, the applicant is responsible for the possible retention and removal of the equipment and documents.
Consideration of the merits
Art. 35. § 1er. The Agency shall consider, on the basis of the information provided in the application, whether the variety may be subject to a breeder's right in accordance with section 3, whether it is a new variety within the meaning of section 8 and whether the applicant is authorized to file an application in accordance with section 11.
§ 2. The Agency also considers, as defined by the King, whether the proposed varied denomination is eligible in accordance with section 42.
§ 3. The first applicant is considered to be entitled to the right to obtain. This provision does not apply if, before it has been decided on the application, it is demonstrated by a judicial decision passed in force of a claim of law under section 61, § 3, that the right does not return, or does not return, to the first applicant only. If the identity of the only authorized person or other authorized person has been established, that person or persons may initiate proceedings as applicants.
Technical examination of the variety
Art. 36. § 1er. If, as a result of the examinations referred to in sections 34 and 35, the Agency finds that there are no obstacles to the granting of the right of obstacle, the Agency shall make the appropriate arrangements for the technical examination of the variety to be conducted.
§ 2. The technical review is intended to verify that the conditions set out in sections 5, 6 and 7 are met. This review allows the Agency to determine the official description of the variety and to obtain an official sample.
§ 3. The technical review is conducted under the direction of the Board, which may be assisted by the Commission. It is conducted in accordance with the guidelines recognized by the Agency and, where appropriate, by the Commission and in accordance with the Agency's instructions.
§ 4. The Agency is authorized to enter into technical examination cooperation agreements for varieties and to take, to that end, the required enforcement measures.
§ 5. Where the necessary culture tests and other tests have been carried out, pursuant to § 4, by the service of a contracting party or are in progress with that service, and the results may be obtained by the Agency and are applicable to the agro-climatic conditions of Belgium, the examination report referred to in Article 37 may be based on such results.
§ 6. Where the above-mentioned review report is not based on results obtained under § 5, the examination shall be based on culture tests and other necessary tests carried out either by the Agency or by a third contracted institution or by the applicant at the request of the Agency.
§ 7. The applicant is required to provide any information, document or material required by the Agency for the purposes of the technical review.
§ 8. If the applicant claims a priority right in accordance with Article 33, § 2, the applicant shall submit the necessary material and any other required material within two years of the date of filing of the application in accordance with Article 32. If the first application is withdrawn or rejected prior to the expiry of the two-year period, the Agency may require the applicant to submit the material or other parts required within a specified period of time.
Review report
Art. 37. § 1er. When the technical examination conducted under section 36, § 1er, is completed, is the subject of a review report that is forwarded to the Agency. If the report demonstrates that the conditions set out in sections 5, 6 and 7 are met, a description of the variety is attached.
§ 2. The Board's review report and the Board's findings with respect to this review report and, where appropriate, the Commission's findings are communicated to the applicant.
§ 3. The applicant may review the file and make comments.
§ 4. If the Board considers that the review report does not allow for an informed decision, the Board may, on its own initiative after consulting the applicant or at the request of the applicant, provide for a further review. For the evaluation of results, any additional review conducted prior to a determination under sections 40 and 41 becoming final shall be considered to be part of the review referred to in section 34.
Objections to the granting of the right of obedience
Art. 38. § 1er. Any person may make a written objection to the granting of the right to obtain.
§ 2. Without prejudice to section 52, the authors of objections have access to the documents, including the results of the technical examination and, where applicable, the description of the variety.
§ 3. Objections may only invoke the following grounds:
1° the conditions set out in Articles 5, 6, 7, 8 and 10 are not met;
2° the varied denomination is not in accordance with the provisions of Article 42.
§ 4. The King shall determine the information to be contained in the objections and shall set the time limit for the objections to be addressed and the procedure for the examination of the objections.
Priority of a new application for objection
Art. 39. If an objection for non-compliance with the conditions listed in Article 10, §§ 1er, 2 and 3, shall result in the withdrawal or rejection of the request for the right of the applicant and, for the same variety, the applicant shall file an application for the right of the applicant within one month of the withdrawal or final rejection of the application, the applicant may require that the date of filing of the application withdrawn or rejected be considered as the date of filing of the application.
Section 4. - Decisions
Rejection of application
Art. 40. § 1er. The Agency immediately rejects the application for the right of authority if it finds that the applicant:
1° did not remedy the irregularities referred to in Article 34, § 2, within the time limit provided for it to do so;
or
2° did not comply with the Agency's request under section 36, § 7 or 8, within the time limit set, unless the Agency has consented to the non-representation of information, documents or materials;
or
3° did not propose an eligible designation under section 42 within the time limit set by the Agency.
§ 2. The Agency also rejects the application for the right to enforce:
1° if it finds that the conditions that it is required to verify in accordance with section 35 are not fulfilled;
or
2° if, on the basis of the examination report referred to in section 37, the conditions set out in sections 5, 6 and 7 are not met.
Granting of the right to obstruct
Art. 41. If the Agency considers that the results of the technical review are sufficient to determine the application and that no obstacle within the meaning of sections 38 and 40 is opposed to it, the Agency shall grant the right to obtain and issue a certificate of obstructor. The decision includes the official description of the variety.
Name of variety
Art. 42. § 1er. Where a right of obstruction is granted, the Agency approves, for the variety in question, the varied denomination proposed by the applicant in accordance with section 31, § 3, if it considers, on the basis of the examination conducted in accordance with section 35, § 2, that the denomination is eligible.
§ 2. The King determines the conditions to be met by the various name to be eligible, as well as the conditions of his employment.
§ 3. The name is intended to be the generic designation of the variety.
§ 4. The Agency shall record the name at the same time as the right to obtain is granted.
Section 5. - Maintenance of the right to obstruct
Maintenance of the variety
Art. 43. § 1er. The licensee is required to maintain the protected variety or, where appropriate, its hereditary constituents for the duration of the law.
§ 2. The holder may be required to ensure the durability of the official sample.
Control of Variety Maintenance
Art. 44. § 1er. The Agency may control that the variety and, where appropriate, its hereditary constituents are maintained throughout the duration of the protection.
§ 2. The Agency is authorized to enter into cooperation agreements for the control of the maintenance of varieties and to take, to that end, the necessary enforcement measures.
§ 3. Upon request by the Agency, the licensee is required to submit to the Agency or any party designated by the Agency, within the specified time limit, the information, documents or material deemed necessary for the control of the maintenance of the protected variety and not to hinder the examination of the measures taken for the maintenance of the protected variety.
§ 4. Where there are indications that the variety is not maintained and, where appropriate, the suspicions are not dissipated by the information and documents provided by the licensee pursuant to § 3, the Agency orders a control over the maintenance of the variety, of which it sets out the terms and conditions.
The licensee is required to permit the inspection of the material of the variety concerned and the place in which the variety is kept, so that the information required to assess whether the variety is maintained can be collected.
The licensee is required to keep the necessary documentation to verify that appropriate measures have been taken.
§ 5. The control includes crop testing or other tests in which the material provided by the licensee is compared to the official description or sample of the variety.
§ 6. Where the control discloses that the licensee has not maintained the variety, the licensee shall, upon request of the Agency or at its request, be heard before a decision to terminate is made under section 22.
Sample delivery
Art. 45. Upon request by the Agency, the licensee is required to provide the Agency or any party designated by the Agency, within the specified time limit, appropriate samples of the protected variety or, where applicable, its hereditary constituents for the purposes of:
1° of the constitution or renewal of the official sample of the variety,
or
2° of the conduct of comparative examinations of varieties for protection purposes.
Modification of the varied denomination
Art. 46. § 1er. The Agency, in accordance with the terms and conditions defined by the King, amends a variety of names assigned in accordance with section 42 if it finds that this name does not meet or no longer meet the conditions set out in this section and if, in the presence of a prior right of a third party, the licensee accepts the amendment or if a judicial decision passed in force of a deemed act prohibits the use of the varied name by the holder or any person required to use the name.
§ 2. The Agency invites the licensee to propose a modified varied denomination and continues the procedure in accordance with section 42.
§ 3. The amended denomination that is proposed may be objected in accordance with Article 38, § 3, 2°.
Section 6. - Other procedural provisions
Restoration in rights
Art. 47. § 1er. Where, despite all due diligence in the particular circumstances, the applicant for an enforcer's right or the holder or any other party to a proceeding before the Agency has not been in a position to observe a time limit for the Agency, it may, upon request, be restored in its rights if that obstacle has been directly affected, under the provisions of this Act, the loss of a right or a right of
§ 2. The request shall be submitted in writing within two months of the termination of the incapacity. The uncompleted act must be done within that time. The request is admissible only within one year of the expiry of the period not observed.
§ 3. The request is duly substantiated and indicates the facts and justifications invoked in its support. It is deemed to be filed only after payment of the restoration fee in the rights, within the time limit provided for in § 2. The Agency decides on the application.
§ 4. This section does not apply to the time limits set out in § 2 and Article 33.
§ 5. Whoever has, in good faith, during the period between the loss of a related right, within the meaning of § 1er, at the request or grant of the right to obtain and the restoration of the said right, exploited or made effective and serious preparations to exploit the material of a variety subject to a published application of the right to obtain or a protected variety may, as a free measure, continue this operation in its establishment or for the purposes of its establishment.
Right to obstruction during proceedings
Art. 48. § 1er. Where an action in a claim filed under section 61, § 3, against the applicant is registered in the Register, the Agency may suspend the proceedings. The Agency may specify the date on which it intends to proceed.
§ 2. When a decision passed in force of a finding was made on the claim action referred to in § 1er or that a decision finding that it has been terminated, by any other means, in that action, is entered into the Register, the Agency resumes the procedure. It may resume the procedure at a previous date, but not before the date fixed under § 1er.
§ 3. Where the right to the right to the right to obtain is transferred to the benefit of a third party and the transfer has effect with respect to the Agency, the third party concerned may substitute for the first applicant, provided that the transfer is notified to the Agency within one month of the registration of the decision that has been deemed to be in the Register. The fees payable under section 49 already paid by the first applicant are deemed to have been paid by the second applicant.
Section 7. - Claims and taxes
Claims
Art. 49. § 1er. The King shall determine the amount of royalties that the applicant must pay for the filing and instruction of his application.
The King also fixes:
1° the amount of royalties due to registrations made by the Agency pursuant to sections 23, 24 and 25,
2° the amount of royalties due to the issuance by the Agency of certificates and copies,
3° the amount of royalties for the control of the maintenance of the variety,
4° the amount of the entire restitution fee.
§ 2. If royalties due under § 1erParagraph 1er, are not paid, the applicant is deemed to waive the application.
§ 3. The King sets out how royalties are collected.
§ 4. Royalties are not refundable.
Annual fee
Art. 50. § 1er. In order to maintain the right of authority, the Agency receives annual fees for the duration of the right.
§ 2. The annual fee must be paid in advance. His payment expires on the last day of the month of the anniversary of the grant of the right to obtain.
The annual fee for the first year is paid before the end of the month following the month in which the right of enforcer is granted.
When the payment of the annual tax has not been made on maturity, the tax may still be paid increased by a surtax, within two months of the annual tax due date.
§ 3. The King sets the amount and modalities for collecting the annual tax and surtax.
§ 4. The annual fee is not refundable.
Section 8. - Record keeping
Register
Art. 51. § 1er. The Agency maintains a record of the application for the right to enforce and the rights of enforcer granted.
§ 2. The following entries are included in the Register:
1° requests for the right to obtain with reference to the taxon, the provisional designation of the variety, the date of filing, and the name and address of the applicant, the applicant and any agent concerned;
2° any case of termination of proceedings in respect of requests for the right to obtain, with reference to the data referred to in point 1°;
3° the proposals for a varied name;
4° changes relating to the identity of the applicant or his agent;
5° any notified transfer of an application, with reference to the name and address of the right or causeholders;
6° the notified contractual licences, with reference to the name and address of the Licensees;
7° any contestation concerning civil rights, as well as the decision taken in force of a ruling concerning this action or any abandonment of it.
§ 3. After the grant of the right to obtain, the following registrations are also included in the register:
1° the species and the name of the variety;
2° the official description of the variety;
3° in the case of varieties requiring, for the production of material, the repeated use of equipment of certain components, the mention of these components;
4° the name and address of the holder, the breeder and any agent concerned;
5° the date of commencement and termination of the right of obstacle, and the reason for its termination;
6° any notified transfer of a right of obstruction, with reference to the name and address of the right or cause holders;
7° notified contractual licences, with reference to the name and address of the Licensees;
8° Mandatory licences and decisions relating to them, with reference to the names and addresses of the Licensees;
9° any modification in a right of obstructor;
10° if both the holder of an original variety and the breeder of a variety essentially derived from the original variety apply, the identification of varieties as original and essentially derived varieties, including the various names and names of the parties concerned. An application by only one of the parties concerned is sufficient only if it has obtained, either the uncontested recognition of the other party in accordance with section 63, or a judicial decision passed in force of something deemed to include identification of the varieties concerned as original and essentially derived varieties;
11° any contestation concerning civil rights and the decision taken in force of a ruling concerning this action in court or any abandonment of it.
§ 4. The King may fix any other details or other conditions relating to registration in the registry.
§ 5. The entries referred to in §§ 2, 7°, and 3, 11°, shall be made by the clerk of the court having ruled on the dispute concerned, upon request of the person having brought the action or any interested person.
§ 6. The Agency may, with respect to the number and type of characters or the established expressions of these characters, make the official description of the variety, if necessary, appropriate to the principles applicable to the description of the varieties of the taxon concerned, in order to make the description of the variety comparable to the descriptions of other varieties of the taxon concerned.
Public inspection
Art. 52. § 1er. The register referred to in section 51 is open to public inspection at the Agency premises.
§ 2. Excerpts from the register are issued at the request of any interested person.
§ 3. Any person with a legitimate interest may, as defined by the King:
1° consult the exhibits relating to a request for the right to obtain,
2° consult the exhibits relating to a right of enforcer already granted,
3° visit crop testing for technical examination of a variety,
and
4° visit crop testing for technical verification of the maintenance of a variety.
§ 4. In the case of varieties for which equipment with specific components must be used on several occasions for the production of materials of the variety, upon request of the applicant for the right to obtain, all information relating to components, including their culture, is excluded from the public consultation. Such a request is no longer admissible when it has been decided on the request for the right to obtain.
Publication
Art. 53. Registrations to the register imposed by Article 51, § 2, and § 3, 1°, 4°, 5°, 6°, 7°, 8°, 9°, 10° and 11°, are published by the Office in the manner fixed by the King.
CHAPTER 5. - Respect for rights
Section 1re. - Jurisdiction
Jurisdiction
Art. 54. The commercial courts, even where the parties are not commercial, are aware of all applications relating to the application of this Act, regardless of the amount of the application.
If the challenge arises in the course of the administrative instruction of the application for the granting of the right of authority, the Agency may, at the request of a party to the judicial proceeding, suspend the granting of the right until the court has ruled.
Section 2. - Counterfeiting and respect for rights
Counterfeit
Art. 55. Constitutes a counterfeit:
1° the performance, without being authorized, of any of the acts referred to in Article 12, § 2, in respect of a protected variety,
or
2° the use of a varied denomination contrary to the conditions of Article 17, § 1er,
or
3° the use, contrary to Article 18, § 3, of the varied denomination of a protected variety or a denomination that may be confused with that denomination.
Counterfeit action
Art. 56. § 1er. The infringement action may be brought from the date on which the grant of the right to obtain is published and only for acts of counterfeit committed from that date.
§ 2. The holder or usufructier of a right of enforcer is entitled to act in counterfeit.
However, the recipient of a mandatory licence granted under Article 25, § 1er, may act in counterfeit if, after reinstatement, the holder or the usufructier of the right to obstruct does not undertake such action.
The beneficiary of an exclusive licence may act in counterfeit unless otherwise provided by the licence contract.
Any Licensee is entitled to intervene in the proceeding in counterfeiting initiated by the licensee or the Usufructier in order to obtain compensation for the harm he suffered.
Reparation of damage
Art. 57. § 1er. Without prejudice to § 3, the injured party has the right to compensation for any damage that it suffers as a result of the infringement.
§ 2. Where the extent of the injury cannot be determined in any other way, the judge may, in a reasonable and fair manner, set a lump sum for damages.
The judge may, as damages, order the grant to the claimant party of counterfeit goods, as well as, in appropriate cases, materials and instruments that have been used primarily for the creation or manufacture of such property, and that are still in possession of the defendant. If the value of these goods, materials and instruments exceeds the extent of actual damage, the judge fixes the relief to be paid by the applicant.
In the event of bad faith, the judge may, as damages, order the assignment of all or part of the benefit realized as a result of the breach, as well as accountability in this regard. Only the fees directly related to the counterfeit activities concerned are deducted to determine the profit to be given.
§ 3. In the event of bad faith, the judge may give the benefit of the plaintiff the forfeiture of counterfeit property, as well as, in appropriate cases, materials and instruments that have been used primarily for the creation and manufacture of such property, and that are still in possession of the defendant. If the property, materials and instruments are no longer in possession of the defendant, the judge may allocate an amount equal to the prize received for the goods, materials and instruments transferred. The confiscation thus pronounced absorbs damages and interests, in addition to the value of confiscation.
Cessation of achievement and other measures
Art. 58. § 1er. When the judge finds an act of counterfeit within the meaning of section 55, he or she orders the termination of the offence to any author of the offence.
The judge may also render an injunction against intermediaries whose services are used by a third party to perform a counterfeiting act within the meaning of section 55.
§ 2. Without prejudice to any damages and interests caused to the injured party because of the breach and without compensation of any kind, the judge may order the application of the party entitled to act in counterfeit as a reminder of the commercial circuits, the definitive removal of the commercial circuits or the destruction of the counterfeit goods and, in the appropriate cases, of the materials and instruments that have primarily been used for the creation and manufacture of such assets.
These measures are implemented at the offender's expense, unless specific reasons exist.
When assessing an application referred to in paragraph 1er, the proportionality between the severity of the breach and the orderly corrective action, as well as the interests of third parties, shall be taken into account.
§ 3. Where in the course of a proceeding, the judge finds an infringement, the judge may order, at the request of the party authorized to act in counterfeit, the perpetrator of the breach to provide to the party that introduces this action all the information available to it regarding the origin and distribution networks of counterfeit goods or services and to provide it with all the relevant data, provided that it is a proportionate measure.
The same injunction may be made to the person who has been found in possession of counterfeit goods at the commercial level, who has been found using counterfeit services at the commercial level or who has been found to provide, at the commercial level, services used in counterfeiting activities.
§ 4. The judge may prescribe the posting of his or her decision or the summary that he or she prepares, during the period that he or she determines, both outside and inside the offender's institutions and order the publication of his or her judgment or summary by means of newspapers or in any other way, at the expense of the offender.
Acts prior to the granting of the right to obstruct
Art. 59. The licensee may require reasonable compensation on the part of any person who has completed, during the period between the publication of the application for the right of obligor and the granting of the right of obligor, an act that would have been prohibited after that period under the right of obligor.
Penalty in case of counterfeiting of community protection of plant varieties
Art. 60. The provisions of civil law to punish cases of infringement of the right of Belgian breeders are also applicable to cases of infringement of community protection of plant varieties granted under Council Regulation (EC) No. 2100/94 of 27 July 1994 establishing a regime of community protection of plant varieties.
Section 3. - Recognition of the right of breeder and identification of a variety
Claim of the right to obtain or right to obtain
Art. 61. § 1er. If the right of obstructor has been granted to a person not authorized under section 10, the authorized person may, without prejudice to any other rights or shares, claim the transfer to his or her benefit of the right of obstructor.
§ 2. If the injured person is entitled only to a part of the right to obtain, the injured person may, in accordance with the provisions of § 1er, claim recognition as a cotitular.
§ 3. The actions referred to in §§ 1er and 2 are also recognized mutatis mutandis to the person authorized in respect of any application for the granting of the right of obligor filed by an applicant who was not entitled to it or was not the only person entitled to it.
Consequences of a change of applicant or licensee of the right of
Art. 62. § 1er. When a full change of applicant or licensee occurs as a result of a judicial decision that is deemed to be in force on the basis of a claim action, the licences are terminated by the registration of the person authorized in the register.
§ 2. If, prior to the introduction of the claim action, the applicant, the licensee or a Licensee has completed one or more of the acts referred to in Article 12, §2, or makes real and serious preparations for that purpose, the applicant may continue or perform such acts, provided that a non-exclusive licence is requested by the new applicant or licensee registered in the register.
§ 3. § 2 does not apply where the applicant, the licensee or the Licensee was in bad faith at the time of the completion of the acts or preparations for that purpose.
Obtaining identification of a variety
Art. 63. The holder of an initial variety and the breeder of a predominantly derived variety have the right to obtain recognition of the identification of the varieties concerned as an initial and essentially derived variety.
Section 4. - Prescription
Prescription
Art. 64. § 1er. The actions referred to in sections 56 and 59 are prescribed by three years from the date on which the right to obtain was finally granted and to which the holder became aware of the act and identity of the offender's author and, in the absence of that knowledge, thirty years after the act was performed.
§ 2. The actions referred to in Article 61, §§ 1er and 2, shall be prescribed by five years from the date of publication of the grant of the right to obtain. This provision does not apply if the licensee knew, at the time of the granting or acquisition of the right, that it was not entitled or that it was not the only person entitled to the right to obtain.
§ 3. The actions referred to in Article 61, § 3, shall be prescribed by five years from the date of publication of the request for the right of a claimant. This provision does not apply if the applicant knew, at the time of the application or the acquisition of the application, that he was not entitled or that he was not the only person entitled to the application.
CHAPTER 6. - Final provisions
Transitional provisions
Art. 65. § 1er. Obtaining rights applications filed prior to the coming into force of this Act are processed in accordance with the provisions applicable at the time of filing.
§ 2. This Act applies immediately to rights of enforcers issued prior to its entry into force, but retains rights acquired at the time this Act comes into force.
§ 3. The provisions of sections 49 and 50 shall apply to the obstruction rights requested or granted prior to the coming into force of this Act.
Derogation of new varieties
Art. 66. Notwithstanding Article 8, § 1er, 1°, and without prejudice to Article 8, §§ 2 and 3, a variety is also considered new in cases where various constituents or harvesting materials of these constituents have not been sold or disposed of to third parties by the breeder or with his consent, in Belgian territory, for the purpose of the exploitation of the variety, more than four years and, in the case of vines or more years This provision applies if the date of application is within one year of the date of entry into force and provided that the variety belongs to a plant species other than those listed in the Royal Order of 1er October 1993 determines plant species for which a certificate of obtaining may be issued and setting the duration of protection for these species.
Derogation in essentially derivative varieties
Art. 67. Article 13, § 1er, 1°, does not apply to essentially derived varieties whose breeder shall, before the effective date of this Act, make effective and serious preparations for their operation, or that the breeder shall have operated before that date.
Communication of judicial decisions
Art. 68. The Registrars of Courts or Tribunals shall give the Agency a copy of the judicial decisions issued on disputes referred to in section 54.
Amendment of the Judicial Code
Art. 69. In Article 574, 16°, of the Judicial Code, inserted by the Law of 10 May 2007, the words "Article 38 of the Law of 20 May 1975" are replaced by the words "Article 54 of the Law of...".
Amendment of the Act of 15 May 2007
Art. 70. Section 8 of the Law of May 15, 2007 on the Suppression of the Counterfeit and Piracy of Intellectual Property Rights are amended as follows:
1° § 1er(3), (a), is replaced by the following:
“(a) Articles 12, 13, 17, § 1er, and 18, § 3, of the Law of 10 January 2011 on the Protection of Plant Breeding";
2° § 2, (3), (a), is replaced by the following:
“(a) the acts referred to in articles 14, § 1er15 and 16 of the Act of 10 January 2011 on the Protection of Plant Breeding".
Abrogatory provision
Art. 71. The Plant Breeding Protection Act of 20 May 1975, as amended by the Acts of 17 March 1993, 9 May 2007 and 10 May 2007, is repealed.
Entry into force
Art. 72. With the exception of this section, the King shall determine the effective date of each of the provisions of this Act.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 January 2011.
Minister for Business and Simplification,
VAN QUICKENBORNE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Notes
(1) Session 2010/2011:
House of Representatives.
Documents. - Bill, 53-404 - No. 1. - Erratum, 53-404 - No. 2. - Report, 53-404 - No. 3. - Text corrected by commission, 53-404 No. 4. - Text adopted in plenary and transmitted to the Senate, 53-404 - No. 5.
Full report: 16 December 2010.
Senate.
Documents. - Project not referred to by the Senate, 5-611 - No. 1.