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Law No. 255 Of 30 December 1998 On The Protection Of New Varieties Of Plants

Original Language Title:  LEGE nr. 255 din 30 decembrie 1998 privind protecţia noilor soiuri de plante

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LEGE no. 255 255 of 30 December 1998 (* republished *) on the protection of new plant varieties *)
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 230 230 of 1 April 2014



---------- Note * *) Republicated pursuant to art. 107 107 para. ((3) of Law no. 255/2013 for the implementation of Law no. 135/2010 on the Code of Criminal Procedure and for the modification and completion of some normative acts that include criminal procedural provisions, published in the Official Gazette of Romania, Part I, no. 515 515 of 14 August 2013, as amended, giving the texts a new numbering. Law no. 255/1998 was republished in the Official Gazette of Romania, Part I, no. 926 926 of 28 December 2011 and has been amended by: - Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, published in the Official Gazette of Romania, Part I, no. 365 365 of 30 May 2012; - Law no. 187/2012 for the implementation of Law no. 286/2009 on the Criminal Code, published in the Official Gazette of Romania, Part I, no. 757 of 12 November 2012, corrected in the Official Gazette of Romania, Part I, no. 117 of 1 March 2013, as amended. + Chapter I General provisions + Article 1 Subject matter (1) The rights of the ameliorator on new plant varieties belonging to all plant species and species, including, among others, hybrids between genera and species, are protected, recognized and defended on the territory of Romania by granting a patent for the variety by the State Institute for Varieties Testing and Registration, hereinafter referred to as ISTIS, under the conditions of this Law. (2) The rights provided in par. ((1) shall be without prejudice to the legal provisions relating to good morals and public order, the protection of the health and life of humans, animals and plants, the protection of the environment, industrial or commercial property or competition, trade and agricultural production. + Article 2 Definitions Within the meaning of the present law, the following terms and expressions are defined as follows: a) variety-the group of plants belonging to a botanical taxon of the lowest known rank, which may be: 1. defined by the expression of the characters resulting from a particular genotype or a certain combination of genotypes; 2. distinct from any other group of plants, by the expression of at least one of the characters referred to in point (a). 1 1; 3. considered as an entity with regard to its capacity to be reproduced as such; b) protected variety-a cultivated variety for which a patent is granted for the variety by ISTIS; c) propagation material-seeds, whole plants or parts of plants which have the capacity to reproduce whole plants; d) the improvement is: 1. the person who created or discovered and developed a new variety; 2. the person who is the employer of the person provided 1 or the one who ordered the activity of creation of new varieties, in accordance with the law or on the basis of a contract specifying that the right of the breeder belongs to the first; 3. successor in rights of the person referred to in point 1 1 or 2, as applicable; e) applicant-the person who registered a patent application for the variety at ISTIS; f) patent holder for the variety-the person holding the patent for the variety or its successor in rights; g) tests in vegetation-the experiences organized in the vegetation for the determination of distinctiveness, uniformity and stability (DUS tests); h) Convention-International Convention for the Protection of New Varieties of Plants of 2 December 1961, revised in Geneva on 10 November 1972, on 23 October 1978 and on 19 March 1991, to which Romania acceded by Law no. 186/2000 , published in the Official Gazette of Romania, Part I, no. 547 of 6 November 2000, as amended; i) the Community Office-the Community Plant Variety Protection Office; j) Official Bulletin-Official Journal of Protection of New Plants of Plants; k) the national authority-the authority for carrying out tests in vegetation is ISTIS; l) National Register-National Register of Patents for Varieties; m) license of invention-faculty concedant in whole or in part by the holder of an industrial property right in favor of another person to use his exclusive right of exploitation in exchange for a royalty; n) royalty-obligation payable periodically on fixed dates and in the form of quota for the right to use the property of another for productive purposes. + Article 3 National treatment The provisions of this law also benefit foreign natural or legal persons residing, respectively, based outside the territory of Romania, under the conditions of the Convention provided for in art. 2 lit. h) and other conventions to which Romania is a party. + Article 4 Representation (1) The natural and legal persons applying for protection for a new variety may be represented in the proceedings before ISTIS by an authorized representative, under the conditions and within the time limits provided for by the implementing regulation of this Law. (2) For natural or legal persons who do not have their domicile or headquarters on the territory of Romania, the representation + Chapter II Patentability of new plant varieties + Article 5 Conditions for granting protection ((. ISTIS shall grant protection for a new plant variety and shall issue the patent for the variety if it is: a) new; b) distinct; c) uniform; d) stable. (2) The variety must bear a name, according to the provisions of art. 15. + Article 6 Novelty (1) The variety is new if at the time of registration of the patent application for the variety or on the date of invoking the priority the propagation material or harvested has not been sold or otherwise made available to third parties, by the improver or by its agreement, for the purpose of commercial exploitation of the new variety a) on the territory of Romania, one year before the registration of the patent application for variety; b) in the territory of other states, more than 4 years after the registration of the patent application for the variety, and for trees, trees and ornamental shrubs and vines, with more than 6 years. (2) It also does not lose its novelty variety which: a) is the subject of a contract of transmission of rights, if prior to the registration of the application there was no commercial exploitation of the new variety b) it is the subject of an agreement between the breeder and another person by virtue of which the enhancer authorises the production of propagation material under its control; c) it is subject to an agreement of the breeder with a third party to carry out a study or experiment in full field or laboratory or experimentation on a small sample of plants in order to evaluate the new variety; d) has been made available to a third party, in the form of propagation material or as harvested material, as a result of use for the purposes specified in art. 33, and which is not used for subsequent multiplications, these acts not being considered as commercial exploitation of the new variety, within the meaning of art. 33 33; e) was made available, as a result of the fact that the improver exhibited the variety in an officially recognized exhibition; f) has been made available to an official body, within the framework of a legal obligation or on a contractual basis, for the production, reproduction, multiplication, conditioning or storage, without the person who has requested the protection to lose the exclusive right of exploitation of the variety, provided that no other making available for commercial purposes was previously made; whether such a provision of the variety was used for the production of a hybrid and it was marketed, the provisions of par. ((1); g) has been made available by a unit or company to another unit or company to which it is subordinated or if both establishments or firms belong entirely to a third party or firm, provided that no other implementation has taken place mood. + Article 7 Distinctiveness (. The variety shall be distinct if it is clearly distinguished by one or more relevant characters resulting from a genotype or a combination of genotypes, compared to any other variety whose existence is known at the time of the submission of a genotype. the patent application for the variety at ISTIS or, as the case may be, at the given priority date. (2) Distinctivity of a variety is defined by characters that can be recognized, described and identified precisely. (3) The varieties considered known are those: a) protected in Romania and registered in the National Register of Patents for Varieties or in other States Contracting Parties to the Convention; b) registered in the official catalogue of varieties of crop plants in Romania intended for sale or in registers and similar catalogues from other states, contracting parties to the Convention; c) for which there is a registered application for the protection of the variety or for its registration in a register of varieties in Romania, provided that the application leads to the granting of protection or to the registration of the variety; d) for which there is an application registered abroad for the granting of protection or for the registration of the variety, provided that the application leads to the granting of protection or registration; e) offered for sale or sold on the territory of Romania or of other states. + Article 8 Uniformity The variety is uniform if, subject to the foreseeable variations during the propagation cycle, the plants remain sufficiently uniform in the relevant characters, including those used in the examination of the variety distinctiveness, as well as in other characters used for the variety description. + Article 9 Stability The variety shall be stable, if, after repeated multiplication or in special cases, at the end of each multiplication cycle, the characters relevant to the establishment of distinctiveness or any other character used for the description of the variety remain unchanged. + Chapter III Right to protection + Article 10 Right to the patent for the variety ((1) The right to the patent for the variety belongs to the breeder and can be transmitted by assignment. (2) If several enhancers have created or discovered and jointly developed a new variety, the right to the patent for the variety belongs jointly to them. ((3) Provisions of para. ((2) shall also apply where two or more persons have discovered the variety and other person or persons have developed it. ((4) The right to the patent for the variety may also belong jointly to the breeder and to another person, if the breeder and the other person declare in writing that they agree to jointly hold this right. (5) The Ameliorator who created a new variety during the service is entitled, unless otherwise provided for in his individual employment contract, to the patent for the variety and to a fair remuneration. (6) If the right to the patent for the variety belongs to two or more persons according to par. (2)-(4), one of them or more may empower the others, by a written declaration, to claim the right to the patent for the variety. + Chapter IV Procedure for examining the application for the issuance of the patent for the variety + Article 11 Filing of patent application for variety The patent application for the variety may be submitted to ISTIS by any natural or legal person or its legal representative: a) at the ISTIS headquarters; b) by mail; c) in electronic form, if the applicant has this possibility. + Article 12 Content of the patent application for variety (1) The patent application for the variety shall be submitted in Romanian, on the form-type, and shall contain: a) the identification data of the applicant, including the name, surname, domicile or residence, if it is the natural person, or the name of the company, the legal establishment and forms of establishment, if it is a legal b) the name of the species in Latin and the common name in Romanian; c) provisional proposal for the name of the new variety; d) information relating to the earlier application or requests for an eventual claim of priority; e) information about the previous operation of the variety. (2) The patent application for the variety will be accompanied by: a) the technical questionnaire type UPOV, CPVO or national guide, completed by the improver; b) proof of payment of the application registration fee; c) priority documents; d) a proxy, if the applicant is represented by an authorized representative of ISTIS, according to the provisions of art. 46 46 para. ((2) lit. g). (3) The patent application must refer to a single variety. + Article 13 Date of filing of the patent application for variety (1) The date of filing of the patent application for the variety is the date of the application to ISTIS, if this request contains at least the elements provided in art. 12 12 para. ((1), accompanied by the application registration fee. (2) The date of filing of the patent application for the variety is the one established in par. (1) and where applicants, foreign natural or legal persons, have submitted the documentation in a foreign language, provided that, within 3 months from the filing of the patent application for the variety, they submit to ISTIS a translation of the documents in Romanian. + Article 14 Right of priority (1) The patent application for the variety confers a right of priority, with effect from the date of deposit, against any other patent application for the variety subsequently submitted for the same variety or for a variety that cannot be clearly distinguished from it, within the meaning of art. 7. ((. Any person who has previously applied for a first application in a Contracting Party to the Convention or to the Community Office shall enjoy a right of priority of 12 months from the date of deposit, if in such time he requests to ISTIS the granting of a patent for the variety, provided that the first application is assigned a deposit date. (3) In order to prove the priority in another state, the applicant must submit to ISTIS, within 3 months of the application, a copy authenticated after the documents of the first application, as well as the propagation material or other documents from the which results in the variety of both applications being identical. (4) Recognition of the priority requested according to par. (3) shall be made subject to the payment of the priority tax provided by law. (5) Failure to comply with the deadline referred to in ((2) or the non-payment of the priority tax shall entail the non-recognition of the priority (6) Acts committed within the period provided in par. (2), such as the lodging of another application, the publication or use of the variety subject to the first application, shall not constitute grounds for rejection of the subsequent application, nor shall they give rise to rights for third parties. (7) The applicant is entitled to a grace period of 2 years after the expiry of the priority period or if the first application has been rejected or withdrawn for the transmission of documents, information or propagation material requested for examination of subsequent application + Article 15 Name of variety (1) The variety shall bear a generic name in order to be identified. (2) The same name, for the same variety, will be used on the territory of Romania and in any other state party to the Convention or on the basis of bilateral agreements. ((3) Provisions of para. ((2) does not apply if the name contravenes para. ((7). (4) The name of the variety must differ from any other name designating another existing variety belonging to the same plant species or species closely related to it, unless the other variety is no longer the name it does not have a special significance. ((5) The name of the variety must not be composed of figures only, except where this practice is recognised for the designation of certain varieties. (6) The name of the variety shall not be misleading or give rise to confusion as to the characteristics of the variety, the value or identity of the breeder. (7) If an application is submitted simultaneously in Romania and in other countries, the variety will be registered with the same name in all countries, unless the name is appreciated by ISTIS as inappropriate. (8) If, by virtue of a previously obtained right, a name has been used for another variety or may cause confusion in the use of the name of another variety, ISTIS will require the applicant to submit another name for its variety. (9) The applicant, in order to establish a correct name, may request to ISTIS, before the application is submitted, to carry out a documentary research on the proposed name, subject to the payment of the legal fee. (10) Any person who offers for sale or sells propagation material of the protected variety is obliged to use the name of that variety and after the expiry of the period of protection of the variety. (11) A proposed name cannot be used as a protected variety denomination if it is identical or similar to a trade mark, designation of origin or geographical indication for protected products, identical or similar to those to which the variety relates, or whether prejudice other protected industrial property rights. (12) The name of the variety is registered in the National Register of Patents for Varieties, with the granting and issuance of the patent for the variety (13) If at least one of the conditions laid down in par. ((1)-(11) is not fulfilled, ISTIS will cancel the registered name and will grant the applicant a period of 30 days for the proposal of another name. (14) The holder of a variety may not use an identical name with the name of the protected variety, so as not to violate the free use of the name of the variety, even after the expiry of the term of validity of the patent for the variety. (15) A third person may use a right granted by an identical name to the name of the protected variety for another variety only if that right has been previously acquired. + Article 16 Formal examination of patent application for variety (1) Within one month from the filing of the patent application for a new variety, ISTIS shall examine the documentation submitted by the applicant, in terms of the formal regularity, respectively of the fulfilment of the conditions provided for in art. 10 10 para. ((1)-(4) and in art. 12. (2) If following the formal examination it is found that the patent application for the variety meets the conditions provided in par. ((1), it shall be registered in the National Register of Patent Applications for Varieties. Registration in the National Register of patent applications for varieties shall be notified to the applicant. (3) Applications of patents for new varieties registered with ISTIS shall be published, within 3 months from the date of registration, in the Official Bulletin. (4) If the patent application for the variety does not meet one of the conditions laid down in art. 10 10 and 12, ISTIS shall decide, within the framework of an examination committee, to reject the application. + Article 17 Background examination of the application (1) ISTIS shall examine on the merits, within 6 months from the date of registration of the application, the documentation of the patent application for the variety regarding the novelty and the name of the variety, according to the provisions of 6 6, 14 and 15. ((2) ISTIS shall notify the applicant or his successor of the result of the examination on the merits of the application; in the case of a negative result, a maximum period of 3 months shall be granted for the applicant's response. (3) For justified reasons, the applicant may request a two-month extension of the ISTIS response time limit. (4) If following the examination on the merits of ISTIS decides, within the examination committee, that the application meets the conditions laid down in art. 6-10 6-10, art. 12 and 15, the variety will be subject to technical examination in the ISTIS test centres or, for species to which ISTIS does not conduct the DUS test, the technical examination will be carried out by a national authority with which ISTIS has concluded a contract Bilateral administrative type UPOV. If the variety for which protection was sought was technically examined from the point of view of distinctiveness, stability and uniformity in the ISTIS test network for registration in the National Official Catalogue and there is a favorable technical examination report, it can be used for the granting of legal protection of the variety. If the DUS test has been carried out in a Member State of the European Union, the report may be recognised as such and used for the granting of legal protection under the terms of the Convention. This report will be requested from the official authority involved by the ISTIS and its consideration will be paid by the applicant. (5) If the application and the attached documents do not meet the conditions laid down in 6-10 6-10, art. 12 12 and 15, and the applicant does not respond within the ISTIS notification period nor ask for an extension of the response deadline, ISTIS rejects the request. + Article 18 Technical examination of the new variety (1) If the variety has not been examined in vegetation from the point of view of distinctiveness, uniformity and stability (DUS test), the candidate variety will undergo a technical examination in the ISTIS test centres, in order to establish: a) if the variety belongs to the botanical taxon declared by the applicant b) if the variety is distinct, uniform and stable, according to the provisions of art. 7-9 7-9; c) following the technical examination by tests for the variety that meets the conditions of distinctiveness, uniformity and stability, a technical examination report shall be issued. (2) The technical examination of the variety shall be carried out by ISTIS in its test centres or by other similar authorities in a Member State of the European Union with which ISTIS has a bilateral administrative contract. ((3) ISTIS will carry out the necessary experiences in order to establish the conditions provided in art. 7-9. The applicant shall make available, free of charge, the propagation material belonging to the variety, in the quantity and on the date required by the institute. If the tests are carried out by another EU authority, the propagation material will be sent to that country. ((4) ISTIS or other competent authority, within one year of the start of testing the variety, shall submit an interim report to the applicant and at the end of the examination, if the variety corresponds in terms of distinctiveness, uniformity and stability, will develop the technical examination report. (5) Testing of the variety will not affect the condition of novelty and will not be used against the granting of the rights of the breeder. (6) For the fruit and vine species for which ISTIS has no conditions for carrying out the DUS test in its own test centres, this test may be carried out by ISTIS specialists in specific fruit and wine basins. (7) ISTIS will reject the patent application for the variety if the validity of the tests is refuted. (8) ISTIS decisions may be appealed by the applicant to the review board within 3 months of the communication. + Article 19 New variety testing (1) In order to test the new variety, ISTIS organizes tests in vegetation in the test centers under its command. ((2) The tests in the vegetation shall be organized according to the methodology developed by ISTIS, according to the UPOV and CPVO norms. (3) After receiving the documentation and conducting the formal examination, ISTIS transmits the documentation to the national authority, which determines the place and quantity of material necessary to organize the experiences and notifies this applicant, inviting him to transmit the requested propagation material. ((4) ISTIS and the national authority may require the applicant to transmit all the information, documents and materials necessary for the optimal conduct of the technical examination. (. If the applicant fails to submit the information, documents and materials required, ISTIS shall reject the patent application for the variety. (6) The applicant shall have the right, at any time during the test period of the variety, to request the inspection of the crops. + Article 20 ISTIS rulings (1) On the basis of the technical examination report, ISTIS determines whether the new variety meets the conditions laid down in art. 6 6-8 and art. 15 and, where applicable, grant the patent for the variety or reject the patent application for the variety. (2) A rejection decision may be taken by ISTIS only after the applicant has been notified of the reasons for rejection and after having been granted a period of at least 3 months for the answer. (3) The decisions shall be published in the first issue of the official Bulletin appearing after the decision. ((4) Based on the evolution of agro-biological knowledge, the examination methodology and the type of characteristics pursued in the course of testing in accordance with the rules of the UPOV or CPVO may be amended accordingly, during the validity of the patent, without changing the extent of the protection granted and the characteristics of the new (5) The decisions taken by ISTIS may be challenged, motivated, by the applicant to the review committee, according to the provisions of art. 41 41 para. ((1). + Article 21 Oral procedure (1) The oral procedure will take place on the initiative of the ISTIS or at the request of any of the parties involved in the appeal proceedings. (. The oral procedure before the review panel, including the decision-making, shall be published, unless, owing to disadvantages for the parties, the Commission decides that it shall not be published. + Article 22 Provisional protection (1) During the period from the date of publication of the patent application for the variety, according to 16 16 para. (3), until the date of granting the patent for the variety, the applicant shall provisionally benefit from the same rights conferred on the patent holder for the variety provided in art. 30 30 para. ((1). (2) Violation of the rights provided in par. (1) by third parties attracts for the guilty persons the obligation of compensation, according to the common law, the title for the payment of compensation being enforceable after granting the patent for the variety. (3) If the patent application for the variety is rejected, the applicant does not benefit from the rights provided in par. ((1). + Article 23 Extension of the deadline (1) The deadlines for the examination of the patent application for the variety, as well as for the repetition of tests in the vegetation may be extended by up to one year, with the payment of legal tariffs. (2) At the request of the applicant, before the expiry of the deadlines according to 17, the duration of the deadlines can be extended by 3 months, but not more than twice, under the condition of payment of the legal tariff. + Article 24 Withdrawal of patent application for variety Following a notification submitted by the applicant to ISTIS, the patent application for the variety may be withdrawn at any time until the decision granting the patent for the variety is taken. + Article 25 Revocation of the patent for variety (1) Within 3 months from the publication of the granting of the patent for the variety in the Official Bulletin, any interested person may request to ISTIS the revocation of the patent for the variety, if at least one of the conditions provided in art. 6 6-10 or 15. The request will be made in writing, for good reasons. (2) Persons who request to ISTIS the revocation of the patent for the variety have access to documents, the results of the technical examination and the official description of the variety. (. The request for revocation shall be examined by the review panel within 3 months of the submission to ISTIS. (. The review board may require ISTIS to repeat the tests in the vegetation or to use a culture expert to participate in the examination of the variety. (. The decision of the review committee shall be communicated to the parties within 15 days of the ruling. (6) The decision of the review committee may be subject to appeal, according to the provisions of art 41. (7) The final and irrevocable decisions shall be published in the first issue of the Official Bulletin after the month of the decision. + Article 26 Priority of new application in case of revocation If a request for revocation is motivated by non-compliance with the conditions provided for in art. 10 and leads to the withdrawal or cancellation of the patent application for the variety and if the person who requested the revocation submits a patent application for the variety, within one month of withdrawal or from rejecting the application for the same variety, may request that the date of deposit of the new application is considered the date of withdrawal or rejection of the previous application + Article 27 Issuance of the patent for variety and registration of the variety denomination (. The patent for the variety shall be issued by the Director General of ISTIS, pursuant to the decision granting the patent for the variety. (2) The breed for variety and the name of the variety shall be entered in the National Register of Patents for Varieties, which is public and may be consulted by third parties, with the payment of the inspection tariff by order of the Minister of Agriculture and Rural Development. (3) In the case of the application submitted by several applicants, the patent for the variety shall be issued to the first applicant mentioned in the application and the others shall be issued a duplicate of the patent for the variety. ((4) The Ameliorator, if he is not the holder of the patent, is entitled to receive, upon request, a copy of the patent for the issued variety. + Article 28 Tariffs for the issuance of the patent for variety and registration of the variety name (1) For examination procedures before ISTIS, the applicant will pay tariffs established by order of the Minister of Agriculture and Rural Development. (2) The fees will be paid for the following procedures: a) registration of patent application for the variety, according to art. 12 12 para. ((2); b) examination of the variety name, according to art. 15 15; c) formal examination, according to art. 16 16; d) examination of substantive conditions, according to art. 17 17; e) technical examination, by groups of species, according to art. 18 18; f) patent issuance for the variety, according to art. 27 27; g) challenging the decisions, according to art. 20 20 para. (5), and revocation of the patent, according to art. 25 25; h) the maintenance in force of the patent for the variety by groups of species, for each year of protection, according to art. 37. + Chapter V Protection of variety + Article 29 Duration of protection of the variety (1) The period of protection of the variety shall be 25 years and shall be calculated from the date of granting the patent for the variety until the end of the 25th calendar year following the year of granting. (2) The duration of protection for the varieties of trees, trees and ornamental shrubs, vines, potatoes and hops is 30 years and is calculated from the date of granting the patent for the variety until the end of the 30th calendar year following the Granting. + Chapter VI Rights of holder + Article 30 Rights of the patent holder for the variety (1) The holder of the patent for the variety benefits from the exclusive right of exploitation of the new variety and the right to prohibit any person from carrying out, without his authorization, the following acts concerning the propagation material or the harvested material belonging to the protected variety: a) production or reproduction; b) conditioning for the purpose of multiplication; c) offering for sale; d) the sale or any other marketing form; e) import; f) export; g) storage for one of the purposes referred to in lett. a)-f). (2) For the harvested material, the provisions of para. (1) are applicable if the following conditions are met cumulatively: a) the harvested material was obtained without the authorization of the holder to use the propagation material of the protected variety; b) the holder failed to exercise his rights in connection with the constituents of the new variety. (3) The provisions of par. ((1) shall also apply to varieties which: a) are essentially derived from the protected variety, if the protected variety is not itself a derived essential variety; b) are not clearly distinguished from the protected variety, according to the provisions of art. 7 7; c) requires, for the production, repeated use of the protected variety. (4) For the purposes of paragraph ((3) lit. a) a variety is considered essentially derived from an initial variety if: a) is predominantly derived from the initial variety or from a variety which, in turn, is predominantly derived from the initial variety; b) is distinct from the initial variety from which it derived, according to art. 7 7; c) is essentially identical to the original variety, in the expression of the characters resulting from the genotype or the combination of genotypes among them, except for the differences resulting from the derivation. (5) The patent holder for the variety is entitled to request royalties for the exploitation of the protected variety in the case of licensing on a contractual basis, and the licensee is obliged to pay the agreed amounts of money. (6) The amount of the royalty will be determined by contract between the patent holder and the one who multiplies and exploits for the production and/or markets the seed and the propagating material. The agreement of the patent holder on the granting of the license on the contractual basis will be submitted by the economic operators seed producers, in copy, to the territorial inspectorates for the quality of the seeds and the propagating material. (7) The letters shall be settled by the courts according to the common law. + Article 31 Exceptions to the rights of the patent holder for the variety (. The rights conferred on the patent holder for the variety shall not extend to: a) use of the variety for personal and non-commercial purposes; b) use of the variety for experimental purposes, which includes the creation of new varieties of the original material; c) the use of the variety for the creation, discovery and development of other varieties; d) the acts provided in art. 30 30 para. ((1) for other varieties falling under lit. c), unless the provisions of art. 30 30 para. ((3) are applicable or if the other variety or material belonging to the variety is protected by an equivalent industrial property right; e) acts whose prohibition would violate the provisions of art. 1 1 para. ((2). (2) Persons who use the protected variety in one of the purposes provided in par. (1) are obliged to inform the holder about it. (3) The exploitation of the variety by third parties in the range between the revocation of the right of the holder and the revalidation of the patent does not constitute a violation of the rights provided in art. 30. + Article 32 Farmer's privilege (1) In order to stimulate agricultural production in the plant species set out in the Annex which forms an integral part of this Law, farmers may use, cultivate varieties, to obtain crops for their own benefit, without having a licence from holder, except for protected varieties which are hybrids or synthetic varieties. (2) For species not included in the Annex, the provisions of paragraph 1 shall apply. ((5). ((. Farmers may use seed obtained for sowing or seed processors. (. Where the seed is used by processors, it shall remain identical to the seed of the protected variety and to the harvested product. ((5) Farmers are obliged to pay the patent holder a fair remuneration for the use of the seed of the protected variety, lower than the price paid for a licence to propagate the material of the accepted minimum biological category, used for the official certification of the protected variety. (6) The holder is entitled to request, in writing, the necessary information in relation to the seed of the protected variety, produced by the farmer. ((7) Farmers and seed processors are required to provide the holder, upon request, with written information about their identification data. (8) Seed processors are required, upon request, to provide the holder with written information about the quantity of seed of the protected variety, delivered for processing, and the quantity of seed obtained after processing, date and place. the processing and identity of the person for whom the processing was done. ((9) Farmers are required, upon request, to provide the holder with information in writing about the quantity of seed used and, where applicable, the identity of the seed processor. (10) The holder is required, upon request, to provide farmers with written information relating to the price collected for the seed production licence, of the weakest category, qualified for official certification, of the variety protected in the same area. (11) The patent holder may ask for information to farmers and seed processors. Information can also be provided by the official bodies involved in the control of agricultural production, if this information has been obtained in the exercise of their duties, without further obligations and additional costs. Regarding personal data, these provisions may not violate national legislation on individual protection relating to the processing and free movement of personal data. + Article 33 Exhaustion of rights of the patent holder for the variety The right of the patent holder for the variety does not extend to the acts relating to the propagation material and to the material harvested from the protected variety or from a variety provided for in art. 30 30 para. ((2), as well as those relating to any part of the plant in the protected variety or to any material derived from that variety, which has been sold or has been marketed by the holder or with its consent, unless such Acts involve a) the propagation of the protected variety, unless this propagation has been made when the material has been made available to third parties for propagation; b) the export of material from the protected variety to a third country which does not protect the varieties of plants of the genera and species to which the protected variety belongs, unless the material is intended for food consumption. + Chapter VII Cessation of the effects of the variety + Article 34 Cancellation of the patent for variety ((1) ISTIS shall declare the patent for the variety void if it finds one of the following situations: a) the variety was not new, within the meaning of art. 6, or distinct, within the meaning of art. 7, on the date of application or on the date of claim of priority, as applicable; b) the granting of the patent for the variety was based essentially on information and documents provided by the improver, the variety was not uniform, within the meaning of art. 8 8, or stable, within the meaning of art. 9, at the time of granting rights c) the person who was granted the patent for the variety was not entitled, unless there was a transmission of rights to the entitled person. (2) ISTIS decisions shall be communicated to the parties within 15 days of delivery and may be subject to the remedies provided for in art. 41. (3) The decision to cancel the patent for the variety, remaining final and irrevocable, is published in the Official Bulletin and the cancellation is operated in the National Register of Patents for Varieties. + Article 35 The revocation of the rights of the patent holder for the variety ((1) ISTIS decade the patent holder for the variety of rights arising from it, when it finds one of the following situations: a) the patent holder for the variety does not meet the obligation to maintain the protected variety, provided in art. 37 37 para. ((1); b) the patent holder for the variety does not comply with the ISTIS request or the national authority to provide information or material for the purpose of verifying the existence of the protected variety during the validity period of the patent for the variety; c) the patent holder for the variety does not propose within the term granted a proper name for the variety, when ISTIS requests the change of the name of the variety, because it no longer satisfies the conditions provided in art. 15 15; d) the patent holder for the variety does not pay the tariffs for the maintenance of the patent for the variety. ((2) ISTIS will not proceed to the revocation of the rightholder before notifying him of the failure to fulfill one of the obligations provided in par. ((1). The revocation of the rights of the patent holder for the variety shall be published in the Official Bulletin and shall take effect from the date of registration in the National Register of Patents for Varieties. (3) The patent holder for the variety may request to ISTIS the revalidation of the patent for the variety for justified reasons, within 6 months from the date of publication of the decay. (4) The decision on the application for revalidation of the patent for the variety shall be communicated to the parties within 15 days of delivery and may be subject to the remedies provided for in art. 41. Revalidation shall be published in the Official Bulletin. + Article 36 Waiver of the patent for the variety (1) The holder of the patent for the variety may give up at any time during the protection of the variety to the patent for the variety, based on a written statement sent to ISTIS. (. The waiver of the patent for the variety shall take effect from the date of transmission of the application to ISTIS. (3) The waiver is entered in the National Register of Patents for Varieties and produces effects for third parties from the date of publication in the Official Bulletin. (4) If the patent for the variety was the subject of a license agreement, the waiver is only possible with the consent of the licensee. + Chapter VIII Exploitation of protected variety + Article 37 Keeping the variety protected (1) The holder of the patent for the variety is obliged, for the entire period of validity of the patent for the variety, to maintain the variety, so that it retains all the characters presented in the official description, at the time of granting the patent for the variety. ((. In order to verify the distinctiveness, uniformity and stability of the new variety, the national authority may require the patent holder for the variety to provide seed, propagation material, documents or any other information necessary for the verification. ((3) ISTIS may ask the patent holder for the variety, for the duration of the patent, information and documents showing the existence of the variety and maintaining its characteristics. (4) If the patent holder for the variety does not comply with the application addressed by ISTIS, the patent holder is deprived of the rights conferred by the patent for the variety, according to the provisions of art. 35 35 para. ((1) lit. a). + Article 38 Transmission of rights to the variety (1) The right to the granting of a patent for the variety, the right to the patent for the variety, and the rights arising from the patent for the variety may be transmitted to other natural or legal persons. (2) The transmission of rights may be made by assignment, exclusive or non-exclusive license or by legal or testamentary succession. (3) If a person other than the one appearing in the patent is entitled to grant the patent for the variety, ISTIS shall issue the patent for the variety of the entitled person and publish the change in the Official Bulletin. (4) If the patent for the variety belongs to more than one person, the party to one of them may be transmitted to third parties, if they are notified of this in writing, and they do not respond within one month. ((. The transmission of rights shall enter into force at the end of the 30-day period. (6) The transmission of rights does not affect the rights acquired by third parties prior to the date (7) The transmission of rights shall be entered, as the case may be, in the National Register of patent applications for varieties or in the National Register of patents for varieties, shall be published in the Official Bulletin and shall become opposable to third parties from this date. (8) A transmission that has not yet been entered in the Register may be invoked against third parties who have acquired rights after the date of transmission, if on the date on which they acquired these rights they knew that the transmission was made. + Article 39 License Agreement (1) If an exclusive license is granted, the licensee benefits from the exclusive right of exploitation of the new variety, within the limits provided for in the license agreement. (2) The production of certified seed, processing or marketing thereof may be transmitted only on the basis of the license agreement concluded with the patent holder in which the payment of the fee and the duration of the contract are included. (3) If a non-exclusive license is granted, the holder shall retain the right to grant the license to other persons and the licensee shall not transmit to third parties the right of exploitation received. (4) The patent holder for the variety may request to ISTIS the publication of the license offer in the Official Bulletin. (5) ISTIS will register the license agreement in the National Register of Patents for Varieties and will publish it in the Official Bulletin. (6) At the request of the person concerned, ISTIS may also register other rights submissions on the protected variety, with the payment of the legal tariff. + Article 40 Compulsory licence (1) For reasons of public interest, a compulsory, non-exclusive licence by the Ministry of Agriculture and Rural Development may be granted at the request of an interested party. (2) In case of compulsory license, the allowed activities and reasonable conditions will be specified. (3) The reasonable conditions shall take into account the interests of the patent holder for the variety which may be affected by the granting of the compulsory licence. (4) The compulsory licence is granted for a limited period in time, with the payment of remuneration to the holder, which in turn will fulfil certain obligations necessary for the exploitation of the compulsory licence. (5) The granting of the compulsory licence shall not prevent the holder from exploiting his variety or granting other non-exclusive licences to third parties. (6) On the expiry of each calendar year of compulsory licence or at any time during the service life granted, the parties concerned may request the modification of the conditions for the exploitation of the (7) In the case of a derived essential variety, if the holder of the original variety refuses to grant a licence for the exploitation of the derived variety, a non-exclusive compulsory licence may be granted under a final judgment. (8) If the holder of a biotech invention requests the granting of a non-exclusive compulsory licence for the use of a protected variety, the Ministry of Agriculture and Rural Development may grant a non-exclusive compulsory licence, subject to payment a reasonable remuneration to the holder of the protected variety, in the following situations: a) the holder of the invention asked the holder of the patent for the variety a license on a contractual basis and did not obtain it; or b) the invention constitutes a significant technical progress, of particular economic interest. (9) If the holder of a patent for the variety requests the granting of a license for the use of a biotech invention protected by a patent, the Bucharest Court, according to Law no. 64/1991 on patents, republished, as amended *), may grant a non-exclusive compulsory licence, with payment to the holder of a reasonable fee. ---------- Note * *) Law no. 64/1991 was republished in the Official Gazette of Romania, Part I, no. 541 541 of 8 August 2007. (10) At the reasoned request, presented by the interested person, the Ministry of Agriculture and Rural Development or, as the case may be, the Bucharest Court may withdraw the compulsory license, when the circumstances that led to it were granted ceased to exist, provided that the legitimate interests of the person who acquired it are protected in an appropriate manner. The licence will not be withdrawn if the circumstances which led to it are likely to occur again. (11) The decisions on granting the use of a compulsory license, as well as those regarding the remuneration provided for in relation to its use, can be appealed to the Bucharest Court, within 30 days of communication. The decision of the tribunal is subject only to the appeal to the Bucharest (12) The final court decisions concerning the granting or, where applicable, the withdrawal of the compulsory licence shall be communicated by the person concerned to the ISTIS, who register them in the National Register of Patents for Varieties and publish the Official Bulletin, within one month of communication. + Chapter IX Defending the rights of new plant varieties + Article 41 Appeals against ISTIS rulings (1) The decisions taken by ISTIS may be challenged by the persons concerned. The application will be submitted to ISTIS within two months of the communication of the decision, and the reasons for the challenge, within up to 4 months. (2) The appeal or, as the case may be, the request for revocation or cancellation of the patent for the variety will be examined by the review committee, within 90 days of the filing, if the evidence allows the case to be resolved within this period. The composition of this committee will be different than that of the examination and will be made up of representatives of the Ministry of Agriculture and Rural Development and ISTIS. The ministry's leadership will approve the composition of the review committee, made up of culture experts (3) The decisions of the commission shall be communicated to the parties within 15 days of delivery and may be appealed to the Bucharest Court, within 30 days of communication. (4) The judgment of the Bucharest Court can be appealed only to the Bucharest Court of Appeal. (5) At the request of the court, ISTIS is obliged to transmit the documents and information necessary to judge the case with which it was invested. + Article 42 Powers of courts Disputes with regard to the quality of the improver, patent holder for the variety, or those with regard to other rights arising from the patent for the variety, including the property rights of the breeder, from the assignment contract or the licence or the regarding the non-compliance with the 37 37 para. ((1) and of art. 38 are the jurisdiction of the courts. + Chapter X Offences and penalties + Section 1 + Article 43 Counterfeiting offences (1) It constitutes a crime of counterfeiting and is punishable by imprisonment from 3 months to 2 years or with a fine performing without the authorization of the patent holder for the variety of any act provided for in art. 30 30 para. ((1). (2) With the punishment provided in par. (1) the following facts are sanctioned: a) the use for the propagation material, produced and sold, of a name other than that recorded; b) the use of the registered name of a new variety for the propagation material, produced and sold, which does not belong to this variety; c) the award, for the propagation material produced and sold, of a name which is very close to that of the protected variety, so that it may cause confusion; d) the sale of propagation material with the false mention that it belongs to the variety for which the patent was granted for the variety, thus misleading the buyer. + Section 2 + Article 44 Action in counterfeiting (1) An action in counterfeiting may be initiated only after the publication of the grant for the variety. (2) If a license has been granted and there are no other provisions in the contract, the licensee may bring an action to the contrary only with the consent of the patent holder for the variety. (3) The holder of an exclusive license may bring an action to the contrary, if he has notified the holder of the patent for the variety and he has not acted within the time required by the licensee. (4) In the framework of the infringement action started by the patent holder for the variety, the licensee may seek compensation for the compensation of the damage. + Chapter XI Precautionary measures and evidence + Article 45 Precautionary measures, evidence (1) The holder of the patent for the variety may request the court: a) the ordering of precautionary measures, where there is a risk of infringement of rights arising from the patent for the variety and whether this breach risks causing irreparable damage and there is a risk of damage to the evidence; b) ordering, immediately after the pursuit, of measures regarding the cessation of acts of violation of rights arising from the patent for the variety, committed by a third person on the occasion of the introduction into the commercial circuit of important goods, involving a touch of these rights; c) ordering the measure of confiscation or destruction of the propagation material provided for in art. 43 43 para. ((2). (2) The court will be able to order the author of the violation of rights arising from the patent for the variety to inform the holder of the identity of the third parties who participated in the production and distribution of the propagation material provided 43 43 para. ((2). (3) For the ordering of the measures provided in par. (1) The provisions of the Civil Procedure Code are applicable. (4) When ordering precautionary measures, the court may compel the claimant to pay a bail, in the amount set by it. (5) The court will be able to ask the complainant to provide any evidence available to him, in order to prove that he is the holder of the right who has been violated or whose infringement is unavoidable. (6) In cases where the means of evidence in support of the claimant's claims are under the defendant's control, the court will be able to order that the evidence be produced by the defendant, provided that the confidentiality of the information is guaranteed, according to Law. (7) The court will be able to order the complainant to pay all damages caused to the defendant, as a result of an abusive exercise of procedural rights with respect to a new variety. + Article 46 Competence ((1) The powers for the implementation of this law belong to ISTIS. ((2) ISTIS, as a specialized body subordinated to the Ministry of Agriculture and Rural Development, is the official authority designated for granting legal protection of varieties on the territory of Romania, which grants patents for new varieties, in compliance with this law and in compliance with the conventions to which Romania is a party, and has the following duties: a) register, publish and examine applications for patents for new varieties; b) organize and hold the National Register of Patent Applications for Varieties and the National Register of Patents for Varieties; c) periodically edit the Official Bulletin, which contains information on patent applications for varieties, the names of new varieties and the proposal for names, as well as the new varieties for which the patent was granted; d) develop the methodology of technical examination in order to establish the distinctiveness, uniformity and stability of the varieties for which the protection was required in accordance with the CPVO, UPOV and internal rules, in the field; e) establish, for species for which there are no UPOV or CPVO guides, the technical examination methodology in accordance with the internal and international rules in force; f) carry out the technical examination in vegetation for the establishment of distinctiveness, uniformity and stability (DUS) in the test centres, for the varieties to which the protection was requested; g) attest to the authorized representatives for the procedures regarding the protection of the new plant varieties in front of h) ensure the exchange of publications with national similar foreign authorities and international organizations and organizations; i) develop cooperation relations with the Contracting Parties to the Convention, the UPOV Office and the Community Office. (3) In the exercise of his duties, the Ministry of Agriculture and Rural Development: a) monitor the activity regarding the protection of intellectual property rights on the varieties, with all the rights and obligations arising from this law; b) together with ISTIS collaborate with the associations of improvers, patent holders for varieties, seed producers and propagation material, with the institutes and research resorts, in order to protect and promote new varieties, and sets out the development strategy in the field of creating new varieties; c) grant compulsory license, according to art. 40 40 para. ((1); d) grant non-exclusive compulsory license, according to art. 40 40 para. ((8); e) by territorial inspectorates for the quality of seeds and propagating material, in the case of protected varieties, shall require the consent of the holder of the patent. + Article 47 Protection of new varieties abroad Romanian individuals and legal entities have the right to choose their state or intergovernmental organization where they want to submit for the first time a patent application for the variety or for an equivalent protection title. + Article 48 National register of patent applications for varieties At least the following indications are published in the National Register of Patent Applications for Varieties (RNCBS): a) the number of patent application for variety; b) species, botanical taxon and variety denomination; c) deposit date; d) name and address of applicant; e) name and address of the breeder; f) name and address of the trustee g) changes in the legal situation of the patent application for the variety. + Article 49 National Register of Patents for Varieties At least the following indications are recorded in the National Register of Patents for Varieties (RNBS): a) the date and number of the grant application for the variety, completed at ISTIS; b) the priority date; c) deposit date; d) name and address of applicant; e) the State in which the applicant is based; f) name and address of the trustee g) name and address of the breeder; h) botanical taxon; i) name of the variety; j) name/name and address/seat of the holder; k) changes regarding the address and name of the holder; l) any modification or transmission of rights; m) the rate of issuance and maintenance of the patent for the variety; n) holder of the patent for variety; o) declarations of waiver of patents for the variety; p) the decision of cancellation or revocation, as appropriate. + Article 50 Protection of varieties at the Community Office (1) If a Romanian applicant wishes to submit a request for protection to the Community Office, he may submit it: a) directly at the Community Office, by a trustee with its seat in the European Union; b) at ISTIS, which will function as the receiver's office of the request for protection. ((2) The application for protection of the new variety containing the documents provided for in Regulation (EC) No 2.100/1994 2.100/1994 of 27 July 1994 establishing a Community plant variety protection scheme, submitted to ISTIS, will be submitted to the Community Office within two weeks of its submission, subject to the payment of the tariff of registration of the application (3) The date of deposit of the application to the Community Office shall be the date on which a full application is received and the legal tariffs are paid. (4) Any variety protected by Community law may no longer be the subject of a national patent. (. If the holder of a national law for a variety subsequently acquires a Community law, the national title shall be suspended. + Chapter XII Transitional and final provisions + Article 51 Transitional and final provisions (1) Patent applications for variety, registered with the State Office for Inventions and Trademarks under the conditions Law no. 64/1991 and ale Government Decision no. 152/1992 for the approval of the Implementing Regulation Law no. 64/1991 *), for which an admission or rejection decision has not been made, shall be resolved according to the provisions of this law. (2) The present law shall enter into force 90 days from the date of its publication in the Official Gazette of Romania, Part I. (3) On the date of entry into force of this Law, the provisions on the protection of varieties and hybrids of plants, provided in art. 7 7 para. ((3) and to art. 11 11 of Law no. 64/1991 , the provisions relating to varieties and hybrids of plants in Head. III of the Government Decision no. 152/1992 * *), as well as any other provisions to the contrary. ---------- Note * *) Government Decision no. 152/1992 for the approval of the Implementing Regulation Law no. 64 64 of 11 October 1991 on patents, published in the Official Gazette of Romania, Part I, no. 79 of 30 April 1992, as amended, was repealed by Government Decision no. 499/2003 for the approval of the Implementing Regulation Law no. 64/1991 on patents, published in the Official Gazette of Romania, Part I, no. 348 348 of 22 May 2003, repealed by Government Decision no. 547/2008 for the approval of the Implementing Regulation Law no. 64/1991 on patents, published in the Official Gazette of Romania, Part I, no. 456 456 of 18 June 2008. + Annex AGRICULTURAL PLANT SPECIES to which the provisions of the farmer's privilege apply a) Feed plants Cicer arietinum L.-chickpeas Lupinus luteus L.-lupin yellow Medicago sativa L.-lucerne Pisum sativum L. (partim.)-field peas Trifolium alexandrinum L.-clover of Alexandria Trifolium resupinatum L.-Persian clover Vicia faba L.-bob Vicia sativa L.-mazariche Lolium multiflorum Lam. -Italian raigras b) Grain Avena sativa L.-oats Hordeum vulgare L.-barley Oryza sativa L.-rice Phalaris canariensis L.-canary grass Rye grain L.-rye X Triticosecale Wittm. -triticale Triticum aestivum L. Emend, Fiori et Paol-common wheat Triticum durum Desf. --hard wheat Triticum spelta L.-spelta wheat c) Solanum tuberosum L.-potato d) Technical and oleaginous plants Brassica napus L. (partim.)-oilseed rape Brassica rapa L.-colza Linum usitatissimum L.-in for oil (except flax for fibre) NOTE: We reproduce below art. III and IV of Law no. 204/2011 ,, which are not incorporated into the republished text of the Law no. 255/1998 and which continue to apply as own provisions of the Law no. 204/2011 : " Art. III. -Article 3 of Law no. 186/2000 on the accession of Romania to the International Convention for the Protection of New Varieties of Plants of 2 December 1961, revised in Geneva on 10 November 1972, on 23 October 1978 and on 19 March 1991, published in the Official Gazette of Romania, Part I, no. 547 of 6 November 2000, is amended as follows: "" Art. 3. -The Ministry of Agriculture and Rural Development is designated to pay the International Union for the Protection of New Plants of Plants the annual contribution of Romania, determined in accordance with art. 29 of the International Convention for the Protection of New Plant Variety. " Art. IV. -On the date of entry into force of this Law, it is repealed a) Section 3 of the Cap. II, made up of art. 18-21 18-21, and Annex no. 3 3 of Government Ordinance no. 41/1998 on taxes in the field of industrial property protection and their regime of use, republished in the Official Gazette of Romania, Part I, no. 959 of 29 November 2006, as amended; b) Government Decision no. 984/2007 for the approval of the Implementing Regulation Law no. 255/1998 on the protection of new plant varieties, published in the Official Gazette of Romania, Part I, no. 638 638 of 18 September 2007. ' ------