Law No. 255 of 30 December 1998 (republished) on the protection of new varieties of plants) published in PARLIAMENT ISSUING the OFFICIAL GAZETTE nr. 230 of 1 April 2014 — — — — — — — — — — * Note) Republished pursuant to art. 107 para. (3) of law No. 255/2013 for the implementation of law No. 135/2010 regarding the criminal procedure code and the modification and completion of some legislative acts containing the provisions of the criminal procedure law, published in Official Gazette of Romania, part I, no. 515 of 14 august 2013, with subsequent amendments, posing a new texts.
Law No. 255/1998 has been republished in the Official Gazette of Romania, part I, no. 926 28 December 2011 and may amended by:-Law No. 76/2012 for implementing Law No. 134/2010 code of civil procedure, as published in the Official Gazette of Romania, part I, no. 365 of 30 may 2012;
-Law No. 187/2012 for implementing Law No. 286/2009 relating to the penal code, published in the Official Gazette of Romania, part I, no. 757 dated 12 November 2012, corrected in the Official Gazette of Romania, part I, no. 117 of 1 March 2013, with subsequent amendments.
Chapter I General provisions Article 1 Object of the protection of breeder's rights (1) new plant varieties of all plant genera and species, including, inter alia, hybrids between genera and species are protected, recognized and protected on the territory of Romania by the granting of a patent for the variety of the State Institute for testing and registration, hereinafter ISTIS, under the present law.
(2) the rights referred to in paragraph 1. (1) will not affect the legal provisions relating to morals and public order, protection of health and life of humans, animals and plants, environmental protection, industrial property or of commercial competition times, trade and agricultural production.
Article 2 Definitions for the purposes of this Act, the words and expressions below are defined as follows:-group a) plant belonging to a botanical taxon of the lowest known rank, which can be: 1. defined by the expression of the characters resulting from a given genotype or combination of genotypes;
2. distinct from any other plant grouping by the expression of, at least one of the characters provided for in paragraph 1;
3. considered as an entity with respect to its ability to be propagated unchanged;
b) variety cultivated a protected variety in order to be granted a patent for the variety of ISTIS;
c) propagating material-seed, whole plants or plant parts that have the ability to replicate whole plant;
d) breeder. the person who created or discovered and developed a new variety;
2. the person who is the employer of the person referred to in paragraph 1 or the one who commissioned the work of creating new varieties, in accordance with the law or on the basis of a contract which specifies that the right of the breeder belongs to the first;
3. the successor in title of the person referred to in paragraph 1 or 2, as applicable;
(e) the requesting person)-a patent application for variety in ISTIS;
f) patent holder for variety-the person who holds the patent for the variety or his successor in title;
g) tests in the vegetation-vegetation organized experiences for determining distinctness, uniformity and stability (DUS tests);
h) Convention-International Convention for the protection of new varieties of plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991, to which Romania acceded through Act No.. 186/2000, published in the Official Gazette of Romania, part I, no. 547 of 6 November 2000, as amended;
I) community-community Office Office for the protection of new varieties of plants;
j) Official Gazette-Official Gazette of the Protection of new varieties of plants;
k) national authority-the authority for carrying out the tests in vegetation is ISTIS;
l) national register-national register of patents for varieties;
m) license your invention-College concedată in whole or in part by the proprietor of an industrial property right in favour of another person to use his exclusive right of exploitation in return for a fee;
n) payable at regular intervals-royalty obligation at fixed dates and in the form of quota for the right to use the property of another for production purposes.
Article 3 National Treatment provisions of this law shall also benefit foreign natural persons or legal entities with their domicile or registered office outside the territory of Romania, under the conditions laid down in article 21 of the Convention. 2(a) h) and of other conventions to which Romania is a party.
Article 4 (1) representation of individuals and legal entities applying for protection for a new variety may be represented in proceedings in front of ISTIS by an authorized representative, under the conditions and within the time limits laid down in the implementing rules of this law.
(2) natural or legal persons who do not have their residence or headquarters on the territory of Romania, the representation is mandatory.
Chapter II Patentability of new plant varieties in article 5 Conditions for the granting of protection (1) the protection granted to a ISTIS new plant variety patent and issued for variety if it is: (a));
(2) the variety shall bear a designation under the provisions of art. 15. Article 6 (1) Novelty variety is new if at the date of registration of the application for a patent for the variety or the date of priority of the propagation material invocation times collected was not sold or not was not put through an otherwise available to third parties by the breeder or with his consent, for the purpose of commercial exploitation of the variety: a) on the territory of Romania , one year before the patent application was for variety;
b) territory of other States, with more than 4 years after the registration of the patent application for variety, and for fruit trees, ornamental trees and shrubs and vines-vine, with more than 6 years.
(2) it also doesn't lose the novelty variety: a) is the subject of a transfer or rights of, if no application was filed previously held commercial exploitation of the new variety;
b) is the subject of an agreement between the breeder and the other person is, by virtue of which the breeder shall authorize the production of propagation material under its control;
c) is the subject of an agreement of the breeder with a third party for the conduct of a study or experiment in the field or in the laboratory or some experiments on a small sample of plants in order to assess the new variety;
d) was made available to a third party, in the form of propagation material or material collected as a result of the use of it for the purposes specified in article 1. 33, and which is not used for subsequent multiplications, such acts as they are not considered as commercial exploitation of the new variety, within the meaning of art. 33;
e) was made available as a result of the fact that the breeder has exhibited the variety at an officially recognized exhibition;
(f)) was made available an official body, under a legal obligation or on a contract basis for the production, reproduction, multiplication, conditioning or storage, without the person who requested the protection to lose its exclusive right of exploitation of the variety, provided that no further disclosure of commercially available has not been submitted; If such a release available of the variety was used to produce a hybrid and it was disposed of, the provisions of paragraphs 1 and 2 shall apply. (1);
g) was provided by a unit or a company to another unit or a firm of which he is paid or if both units or companies belong entirely to third companies or units, provided there be held another implementation available.
Article 7 Distinctness (1) variety is distinct if it is clearly different from one or more of the relevant characters resulting from a given genotype or combination of genotypes, from any other variety whose existence is notoriously known at the date of the application for a patent for the variety in ISTIS or, where applicable, the priority date relied upon.
(2) the Distinctness of a variety is defined by characters who are recognizable as described and identified accurately.
(3) the varieties are considered notorious ones: a) in Romania and registered in the national register of patents for sorts or in other States Contracting Parties to the Convention;
b) recorded in the official catalogue of plant varieties of culture in Romania for sale catalogues or registers and similar in other States, Contracting Parties to the Convention;
c) for which there is a demand for protection of a variety for inclusion in a registry of sorts from Romania, provided that the application leading to grant or the registration of the variety;
d) for which there is a demand abroad for grant of or to register, provided that the request would lead to granting 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 predictable variations throughout the cycle of seed, plants remain sufficiently uniform in relevant characters, including those used in the examination for distinctness, as well as the other characters used for the variety description.
Article 9 Stability
The variety is stable if, after repeated propagations or, in special cases, at the end of each cycle, the propagation characters relevant for establishing distinctness or any other characters used for the variety description, 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 passed through the assignment.
(2) If several enhancers have created or discovered and have jointly developed a new variety, the right to the patent for the variety belongs in common to them.
(3) the provisions of paragraphs 1 and 2. (2) also apply where two or more people discovered the variety and another person or other people developed it.
(4) the right to the patent for the variety may also jointly belong to the breeder and the other person, if the breeder and the other person declares in writing that they agree to hold in common.
(5) the breeder who created a new variety in service is entitled, unless otherwise provided in the individual labour contract, the patent for variety and to an equitable remuneration.
(6) the right to the patent for the variety belongs to two or more persons pursuant to paragraph 1. (2) to (4), one or more of them may empower the others by means of a written declaration, to claim the right to the patent for the variety.
Chapter IV procedure for examining the application for the issuance of a patent for the variety Article 11 filing of patent application for variety patent application for variety may be filed by any natural ISTIS times legal or its legal representative: a) on the premises of ISTIS;
b) by mail;
c) in electronic form, if the applicant has such a possibility.
Article 12 content of patent application for variety (1) the patent application shall be filed for the variety in the Romanian language, on the form, and contains: a) identification data of the applicant, including their name, forename, domicile or residence, whether it is natural or corporate name, registered office and legal forms of incorporation, whether it is a legal person;
(b) the name of the species) in Latin and common name in Romanian language;
c the provisional designation) proposal of the new variety;
d) information relating to the previous application or applications for any of the priority claim;
e) information about the exploitation of the variety.
(2) the application for a patent for the variety shall be accompanied by: a) technical questionnaire type UPOV, CPVO or guide, completed by the breeder;
b) proof of payment of the registration fee to the application;
(c) priority documents);
d) the power of attorney if the applicant is represented by an authorized representative of ISTIS, art.7. 46 para. (2) (a). g). (3) the patent application shall relate to a single variety.
Article 13 the date of filing of the patent application for variety (1) the filing date of the patent application for variety is the filing date if the application ISTIS contain at least the particulars referred to in article 1. 12(3). (1), accompanied by the registration fee.
(2) the filing date of the patent application for variety is that laid down in paragraph 1. (1) and where the applicants, whether natural or legal persons, have filed documentation in a foreign language, provided that, within three months of lodging the application for patent for variety, to submit to a translation of ISTIS documents in Romanian language.
Article 14 the right of priority (1) the application for a patent for a variety right of priority with effect from the date of filing, any application for a patent for the same variety subsequently filed for variety or a variety which is not clearly distinguishable from it, within the meaning of art. 7. (2) any person who has filed a first application previously been customary in a Contracting Party to the Convention or at the community benefits from a right of priority for 12 months from the filing date, if within this period of time shall require the granting of a patent for ISTIS variety, provided that the first request to have assigned a date of filing.
(3) in order to prove the State priority, the applicant must submit to in a ISTIS within 3 months of the filing of the application, a certified copy of the documents of the first, as well as propagating material or other documentation indicating that the variety of both applications is the same.
(4) the recognition of priority requested pursuant to paragraph 1. (3) is made under condition of paying the fee for priority provided by law.
(5) failure to comply with the time limit referred to in paragraph 1. (2) failure to pay the fee for priority or attract the non-recognition of the priority claimed.
(6) the acts perpetrated in the range referred to in paragraph 1. (2) such submission to another publication or use applications, the variety which is the subject of the first application, shall not constitute grounds for rejection of application for subsequent nor give rise to rights of third parties.
(7) the applicant shall be entitled to a grace period of 2 years after expiry of the period of priority or if the first application is rejected or withdrawn during the times for forwarding documents, information or propagating material required for the examination of the application.
Article 15 the variety denomination (1) will carry a variety of the generic name to be able to be identified.
(2) the same name for the same variety, will be used on Romanian territory and in any other Contracting State to the Convention or on the basis of bilateral agreements.
(3) the provisions of paragraphs 1 and 2. (2) does not apply if the name violates para. 7. (4) the variety denomination must differ from any other name designating another existing variety of the same plant species or of a closely related species, unless the other variety no longer exists and its name has no special meaning.
(5) the denomination shall not be composed solely of figures except where this practice is recognized for the designation of certain varieties.
(6) the denomination will not mislead or will not give rise to confusion regarding the characters, the value or the identity of his times to the breeder.
(7) If an application is filed simultaneously in Romania and other countries, the variety will be registered with the same name in all countries, except where the name is appreciated by the ill-considered as ISTIS.
(8) If, by virtue of a right in a previously obtained designation was used for another variety or may create confusion in the use of the name of another variety, will require the applicant to ISTIS convey another denomination for the variety.
(9) the applicant, in order to establish a correct names, may be required before the ISTIS application, conducting a research documentation relating to the proposed designation, provided fee payment.
(10) any person who sells or offers for sale propagating material of the protected variety shall use the name of that variety and after expiry of the term of protection of the variety.
(11) a proposed denomination cannot be used as a designation shall be protected if it is identical with, or similar to a trademark, appellation of origin for products protected geographical indication identical or similar to those covered by variety, or prejudice to other industrial property rights protected.
(12) the denomination shall be registered in the national register of patents for sorts with the granting and issuing of the patent for the variety.
(13) If at least one of the conditions referred to in paragraph 1. (1) to (11) is not fulfilled, will cancel the registered name ISTIS and shall give the applicant a time limit of 30 days for another proposal.
(14) the owner of a variety may not use a designation that is identical with the variety denomination protected so as not to infringe on the free use of the denomination, even after expiry of the period of validity of the patent for the variety.
(15) a third person may use a right granted by a designation that is identical with the variety denomination to another protected variety only if this right has been acquired previously.
Article 16 the formal Examination of the application for patent for the variety (1) within one month of the filing of the application for a patent for a new variety shall examine the documentation filed by ISTIS applicant, in terms of the formal regularity of the fulfilment of the conditions laid down in article 21. 10 para. (1) to (4) and in article 8. 12. (2) If the formal examination it is found that the patent application for the variety satisfies the conditions laid down in paragraph 1. (1), it shall be recorded in the national register of patent applications for varieties. Entry in the national register of patent applications for varieties shall be notified to the applicant.
(3) applications for patents for new varieties registered in ISTIS published within 3 months from the date of registration in the official bulletin.
(4) where the patent application does not meet for variety one of the conditions laid down in article 21. 10 and 12, ISTIS under an acting Commission for review, the rejection of the application.
Article 17 the examination on the merits of the application (1) the Fund will consider on ISTIS, within 6 months from the date of the registration application, the documentation for the variety patent application concerning novelty and variety denomination under the provisions of art. 6, 14 and 15.
(2) notify the applicant or ISTIS successor in title, the result of the examination on the merits of the application; in the case of a negative result, shall be granted for a term not exceeding 3 months for a response from the applicant.
(3) For duly justified reasons, the applicant may request an extension of the time limit of two months granted ISTIS response.
(4) If the examination on the merits, in the context of ISTIS examination Committee, that the request complies with the conditions laid down in article 21. 6-10, art. 12 and 15, the variety will be subjected to technical examinations in test centers of ISTIS or, for species unable to perform test ISTIS LED the technical examination will be carried out by the national authority with which the administrative contract ISTIS has bilateral type UPOV. Where the variety for which protection has been requested has been examined from a technical point of view of distinctness, stability and uniformity in ISTIS network testing for the purpose of registration in official catalogue and there is a favourable technical review report, it can be used for the granting of legal protection of the variety. Where the test was carried out in SHOWER-a Member State of the European Union, the report can be recognized as such and used for granting legal protection, under the terms of the Convention. This report will be requested from the official implicated by his and ISTIS equivalent value will be paid by the applicant.
(5) where the application and attachments do not fulfil the conditions laid down in article 21. 6-10, art. 12 and 15, and the applicant does not respond to notification within ISTIS nor require an extension of the deadline for reply shall reject the application, ISTIS.
Article 18 technical examination of the new variety (1) where the variety was not examined in the vegetation of the distinctness, uniformity and stability (DUS Test), the candidate variety will be subjected to a technical examination in test centers of ISTIS, to determine: (a)) where the variety belongs to the botanical taxon declared by the applicant;
b) If variety is distinct, uniform and stable according to the provisions of art. 7-9;
c) following examination of the technical tests for the variety that matches the distinctness, uniformity and stability is granted a technical review report.
(2) the technical examination of the variety is carried out by its centres of ISTIS testing or other similar authority from a Member State of the European Union with which it has a bilateral contract ISTIS administrative.
(3) will perform the necessary experiences ISTIS when determining the fulfilment of the conditions laid down in article 21. 7-9. The applicant will make available, free of charge, the propagating material of the variety, the quantity belonging to and on the date required by the Institute. Where the tests will be carried out by another EU authority, propagation material will be sent to that country.
(4) ISTIS or other competent authority, within one year of the initiation of the test, the applicant will provide an interim report, and at the end of the examination, if the variety corresponds in terms of distinctness, uniformity and stability, will work out technical review report.
(5) varietal Testing will not affect the novelty requirement and will not be used against the grant of the breeder's rights.
(6) for the species of fruit trees and vineyards, for which it has no conditions of ISTIS performing the test went into testing their own centers, this test may be carried out by specialists in pools and ISTIS fruit-growing districts.
(7) will reject the application of ISTIS patent for variety if the validity of the tests is invalidated.
(8) Decisions can be challenged by ISTIS by requesting the Commission to review, within three months from the communication.
Test the new variety of article 19 (1) for the purpose of testing the new variety testing in ISTIS organizes vegetation in test centers that are in its subordination.
(2) the tests shall be organised in accordance vegetation with the methodology developed according to the rules of ISTIS UPOV and CPVO.
(3) After receipt of documentation and formal examinations, documentation of the National Authority transmits ISTIS, which determines the place and the amount of material required and notify the Organization of the experiences this applicant, inviting him to forward propagation material requested.
(4) the national authority and ISTIS may require the applicant to submit all the information, documents and materials required for optimal deployment of the technical examination.
(5) If the applicant does not pass the deadline information, documents and materials required, ISTIS rejects patent application for variety.
(6) the applicant is entitled, at any time during the testing of the variety, to request inspection of crop.
Article 20 the decisions of ISTIS (1) on the basis of the report of the technical examination determines whether the new variety ISTIS fulfils the conditions laid down in article 21. 6-8 and art. 15 and, where appropriate, be granted the patent for the variety or reject the patent application for variety.
(2) a decision of rejection may be taken only after ISTIS applicant notified the reasons for rejection and after i was given a period of at least 3 months for reply.
(3) Decisions shall be published in the first issue of the official Bulletin that appears after the judgment.
(4) on the basis of the evolution of knowledge under examination, the methodology and the type of characteristics during testing in accordance with the rules of UPOV or the corresponding CPVO may be modified during the duration of validity of the patent, without altering the scope of the protection granted and the characteristics of the new variety.
(5) decisions can be appealed, ISTIS motivated, by the applicant to the Commission for review under the provisions of art. 41 para. 1. Article 21 oral proceedings (1) oral proceedings shall take place on the initiative of ISTIS or at the request of any of the parties involved in the proceeding.
(2) the oral proceedings before the Commission for review, including delivery of the decision will be published, except where, because of disadvantages for the parties, the Commission decided that it should not be published.
Article 22 (1) Provisional Protection during the period from the date of publication of the patent application for variety, according to art. 391. (3) until the date of grant of the patent for the variety, the applicant enjoys provisional the same rights conferred on the holder of the patent for the variety. 30 paragraph 2. (1) and (2) the rights referred to in paragraph 1. (1) third party draws for persons under obligation of compensation, according to common law, the title for the payment of damages being enforceable after the grant of the patent for the variety.
(3) where the patent application is rejected for variety, the applicant enjoys the rights provided for in paragraph 1. 1. Rule 23 prolongation deadline (1) deadlines relating to the examination of the application for a patent for the variety, and to repeat the tests in vegetation may be extended by up to one year, with legal fees.
(2) at the request of the applicant, before the expiration of the deadlines according to the provisions of art. 17, the duration of time limits may be extended by three months, but not more than twice, under condition of payment of fare.
Article 24 withdrawal of the patent application for variety as a result of notifications submitted by the applicant to ISTIS, patent application for variety may be withdrawn at any time, pending the decision granting the patent for the variety.
Article 25 of the patent Revoked for soi (1) within 3 months of publication of the grant of the patent in the official bulletin for variety, any interested person may request the revocation of the patent for ISTIS variety, if it is not met at least one of the conditions laid down in article 21. 6-10 or 15. The request shall be made in writing, for good reason.
(2) persons requesting revocation of the patent in ISTIS for variety, have access to documents, the results of the technical examinations and the official variety description.
(3) an application for revocation will examine the Commission review, within three months of submission to ISTIS.
(4) the Commission may require review ISTIS to repeat the tests in vegetation or to use a culture expert to participate in the examination of the variety.
(5) the Commission decision shall be communicated to the parties for review, within 15 days from delivery.
(6) the Commission decision to review may be subject to appeal under the provisions of art. 41. (7) final and irrevocable Decisions shall be published in the first issue of the official Bulletin following the taking of the judgment.
Article 26 priority of a new application in the case of cancellation in the event that an application for revocation is motivated by failure to comply with the conditions laid down in article 21. 10 and leads to withdrawal or cancellation of the application for patent for the variety and whether the person requesting revocation of the patent submits an application for variety, within one month following the withdrawal or rejection of the application for the same variety, it may require that the date of filing of the new requests should be considered as the date of the withdrawal or rejection of the application.
Article 27 the issue of the patent for the variety denomination and registration (1) the patent for the variety is issued by the Director-general of ISTIS, pursuant to the decision granting the patent for the variety.
(2) the patent for the variety denomination shall be entered in the national register of patents for sorts, which is public and can be consulted by third parties, with the payment of inspection by order of the Minister of agriculture and rural development.
(3) in the case of demand for many applicants, the patent for the first applicant shall be released variety mentioned in the request, and the other shall be issued a duplicate of the patent for the variety.
(4) the breeder, where there is no holder of the patent, is entitled to receive, upon request, a copy of the certificate issued for variety.
Tariffs for issuance and registration of the patent for the variety denomination (1) For the examination in front of ISTIS, applicant will pay rates established by order of the Minister of agriculture and rural development.
(2) the fees will pay for the following procedures: (a) the registration of the patent application) for variety, according to art. 12(3). (2);
b) examining the denomination under art. 15;
(c) formal examination) according to art. 16;
d) examination of the conditions of the Fund, according to art. 17;
e) technical examination for the species, according to art. 18;
f) issue of the patent for the variety, according to art. 27;
g) objections based on judgments, according to art. 20 paragraph 1. (5) the revocation of the patent, and, according to art. 25;
h) maintaining the patent in force for variety groups of species, for each year, according to art. 37. Chapter V protection of the variety article 29(3) the term of protection shall be (1) the term of protection shall be 25 years calculated from the date of grant of the patent for the variety up at the end of the 25th calendar year following the year of grant.
(2) the term of protection for varieties of fruit trees, ornamental trees and shrubs, vines, potatoes and hops is 30 years old and is calculated from the date of grant of the patent for the variety until the end of the 30th calendar year, following the year of grant.
Chapter VI Rights holder the holder of Rights Article 30 patent for soi (1) the holder of a patent for the variety enjoys the exclusive right to exploit the new variety and the right to prohibit any person to carry out, without its authorization, the following acts concerning propagating material or harvested material of the protected variety: a) production or reproduction;
b) for the purpose of conditioning multiplication;
c) offering for sale;
d) sale or any other form of marketing;
g) storage for one of the purposes referred to in subparagraph (a). a)-(f)).
(2) material harvesting, paragraph 1. (1) are applicable if the following conditions are cumulatively met: a) the material collected was obtained without the authorization of the holder to use propagating material of the protected variety;
b) holder failed to exercise their rights in connection with the new variety constituents.
(3) the provisions of paragraphs 1 and 2. (1) also applies to varieties: a) are essentially derived from the protected variety, if the protected variety is not itself an essentially derived variety;
b) is not clearly distinguishable from the protected variety under the provisions of art. 7;
c) requires, for the production, repeated use of the protected variety.
(4) for the purposes of paragraph 1. (3) (a). a), a variety shall be deemed to be essentially derived from the initial variety: 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 original variety from which it is derived, under art. 7;
c) is essentially identical to the initial variety in the expression of the characters resulting from the genotype or combination of genotypes, from among them, with the exception of the differences resulting from the derivation.
(5) the holder of a patent for the variety shall be entitled to claim royalties for the exploitation of the protected variety in the granting of licenses on a contractual basis, and the licensee is obliged to pay the agreed sums of money.
(6) the amount of the fee will be determined by agreement between the patent holder and the one who multiplies and exploits for production and/or placing the seed and propagating material. The patent proprietor consents thereto relating to the granting of the licence on a contractual basis will be deposited by the economic operators manufacturers of seed under review, the territorial inspectorates for quality seed and planting material.
(7) any disputes shall be settled by the courts of common law.
Article 31 exceptions to patent rights holder for variety (1) the rights conferred by the patent holder for the variety does not extend to the use of the variety: a) personal and non-commercial purposes;
(b) the use of the variety in goal) experimentally, that includes the creation of new varieties from the original material;
(c) the use of the variety for creating), discovering and developing other varieties;
d) acts referred to in articles. 30 paragraph 2. (1) for other varieties which fall under (a). c), except where the provisions of art. 30 paragraph 2. (3) are applicable or if the other variety variety material belonging to times is protected by an industrial property right equivalent;
e) acts whose prohibition would violate the provisions of art. 1 (1). 2. (2) people using the protected variety in one of the purposes referred to in paragraph 1. (1) shall inform the holder accordingly.
(3) the exploitation of the variety by third parties in the period between the revocation of the patent holder and revalidation does not constitute an infringement of the rights referred to in art. 30. Article 32 (1) farmer's Privilege for boosting agricultural production to the plant species referred to in annex II, which forms an integral part of this law, farmers can use to cultivate varieties, to get their own crops for the benefit, without holding a licence from the holder, with the exception of protected varieties which are hybrids or synthetic varieties.
(2) For species not listed in the annex shall apply to the provisions of paragraph 1. 5. (3) Farmers may use the seed for sowing, or obtained through seed processors.
(4) where the seed is used by processors, it must remain identical to the protected variety seed and harvested product.
(5) Farmers are required to pay the patent holder a fair remuneration for the use of the protected variety seed lower than the price paid for a license of propagation of category minimum accepted biological, used for the official certification shall be protected.
(6) the holder is entitled to ask, in writing, the information required in connection with the seed of a protected variety, produced by the farmer.
(7) farmers and seed processors are required to provide to the holder, on request, information in writing about their identification data.
(8) Processors of seeds are obliged, upon request, provide information to the holder in writing of the amount of seed from a protected variety, delivered for processing and the quantity of seed obtained after processing, date and place of the processing and the identity of the person for whom it was done processing.
(9) Farmers are obliged, upon request, to provide information to the holder in writing of the quantity of seed used and, where appropriate, the identity of the seed, the dairy processor.
(10) the holder shall, upon request, provide information to farmers in writing relating to the price charged for the license for the production of seed, the lowest category qualified for official certification, of the same protected area.
(11) the holder of the patent may request information to farmers and seed processors. Information can be provided and the official bodies involved in the monitoring of agricultural production, if such information has been obtained in the performance of job duties, without any further obligations and additional costs. With regard to personal data, those provisions cannot contravene national law relating to the protection of the individual relating to the processing and free movement of personal data.
Article 33 the exhaustion of patent rights holder for the patent holder the right variety for variety shall not extend to acts concerning propagating material harvested material of the variety or of a protected variety; 30 paragraph 2. (2) nor on those relating to any part of the plant variety protected or any material derived from this variety, which has been sold or has been placed on the market by the proprietor or with his consent, unless such acts involve: a) multiplying the variety is protected, except where such propagation was made when the material was made available to third parties for multiplication;
b) export of material of the protected variety in a third country which does not protect varieties of plants from the genera and species to which it belongs to the protected variety, except where the material is destined for food consumption.
Chapter VII termination of effect of the patent for the annulment of article 34 of the patent variety for variety (1) declares the patent for ISTIS soi null if finds one of the following situations: a) the was not new in the sense of art. 6, or, for the purposes of art. 7, the date of application or the date of priority of claim, as appropriate;
(b) the grant of the patent) for variety was based essentially on the information and documents furnished by the breeder, the variety has not been uniform. 8, or stable. 9, the date of grant of rights;
c) the person to whom the patent was granted for the variety was not entitled, except to the extent that there has been a transfer of rights by the person entitled.
(2) Decisions shall be communicated to the parties in ISTIS within 15 days from the date and may be subjected to appeal. 41. (3) a judgment declaring the patent for soi, final and irrevocable, shall be published in the Official Gazette and the cancellation shall be made in the national register of patents for sorts.
Article 35 Forfeiture of the patent for the variety
(1) the patent proprietor ISTIS decades for variety of rights arising out of it, when it finds one of the following situations: (a) the holder of a patent for) soi does not comply with the obligation to maintain the protected variety as referred to in art. 37 para. (1);
(b) the holder of a patent for) the variety is not replied to the request of the national authority of ISTIS or to provide information or material in order to verify the existence of the variety is protected during the period of validity of the patent for the variety;
(c) the holder of a patent for) soi does not propose within a proper name for the variety, when requesting a change of denomination ISTIS because it no longer meets the conditions laid down in article 21. 15;
(d) the holder of a patent for) soi does not pay the charges for the maintenance in force of the patent for the variety.
(2) will not proceed to ISTIS forfeiture of rights holder before notifying non-fulfilment of one of the obligations laid down in paragraph 1. 1. Revocation of the patent holder for the variety shall be published in the Official Gazette and shall take effect from the date of entry in the national register of patents for sorts.
(3) the holder of a patent for the variety may be required to revalidate the patent for ISTIS variety for duly justified reasons, within a period of 6 months from the date of publication of the cancellation.
(4) the decision on the application for the patent to revalidate variety shall be communicated to the parties within 15 days of the pronouncement and may be subject to appeal under article 4. 41. Revalidation shall be published in the Official Gazette.
Article 36 abolishing the patent for the variety (1) the holder of a patent for the variety can be waived at any time during the patent protection of the variety for variety, on the basis of a statement by forwarded to ISTIS.
(2) the surrender of the patent for the variety shall take effect from the date of transmission of the application to ISTIS.
(3) Renunciation shall be entered in the national register of patents for varieties and effect of third parties from the date of its publication in the Official Gazette.
(4) If the patent for the variety was the subject of a license contract, the surrender is possible only with the consent of the licensee.
Chapter VIII the exploitation of the variety protected by article 37 maintenance of a variety protected (1) the holder of a patent for the variety is obliged that, throughout the duration of the validity of the patent for the variety, maintain variety, so that it will retain all the characters featured in the official description on the date of grant of the patent for the variety.
(2) for the purposes of verifying the distinctness uniformity, and stability of the new variety, the national authority may ask the holder of the patent for variety to provide seeds, propagating material, documents or any other information necessary for verification.
(3) require the holder of ISTIS can patent for variety, for the duration of the validity of the patent, information and documents indicating the existence of the variety and maintaining its characteristics.
(4) if the holder of the patent for the variety not replied to the request addressed to the proprietor of the patent, ISTIS is deprived of the rights conferred by the patent for variety, art.7. 35 para. (1) (a). of Article 38). plant variety rights (1) the right to the grant of a patent for the variety, the right to the patent for the variety and the rights arising from a patent for the variety can be passed to other natural or legal persons.
(2) rights can be made by transfer or exclusive license or non-exclusive, or by legal or testamentary succession.
(3) If a person other than the one given in the patent is entitled to the grant of the patent for the variety, issued patent for ISTIS soi person entitled and shall publish the change in the Official Gazette.
(4) If the patent for the variety belongs to several persons, the responsibility of one of them may be passed on to third parties, if they notify this in writing, and they do not respond within a month.
(5) the transmission rights shall take effect from the date of the conclusion of the period of 30 days.
(6) the transmission of rights does not affect rights acquired by third parties before the date of transmission.
(7) Transmission rights register, as appropriate, in the national register of patent applications for varieties or in the national register of patents for sorts, shall be published in the official bulletin and relied on as against third parties from becoming this time.
(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 the transmission, if the date on which they acquired those rights knew that did the transmission.
Article 39 the license agreement (1) where an exclusive licence is granted, the licensee shall enjoy the exclusive right of exploitation of the variety, within the limits provided for in the license agreement.
(2) certified seed Production, processing or marketing of these may be transferred only in compliance with the contract concluded with the license holder of the patent to include payment of the fee and the duration of the contract.
(3) if it is granted a non-exclusive licence, the holder retains the right to grant the license and other people, and you may not transmit to third parties the right to exploit.
(4) the holder of a patent for the variety may be required to license bid ISTIS in the Official Gazette.
(5) contract will ISTIS in national register of patents for varieties and will be published in the Official Gazette.
(6) at the request of the person concerned, may register and ISTIS other assignment of rights in a protected variety, with the payment confirmation.
Article 40 (1) compulsory License For reasons of public interest, at the request of an interested party may grant a compulsory license, non-exclusive, by the Ministry of agriculture and rural development.
(2) in the event of granting compulsory license shall specify the activities allowed and reasonable conditions.
(3) reasonable Conditions shall take into account the interests of the holder of the patent for the variety that could be affected by the grant of the compulsory licence.
(4) the compulsory License shall be granted for a limited period in time with the payment of remuneration to the holder, which, in turn, will fulfill certain obligations necessary for operation of the compulsory licence.
(5) the grant of the compulsory licence shall not prevent a holder to exploit the variety or to grant non-exclusive licenses to third parties, other.
(6) upon the expiry of each calendar year of compulsory licence or at any time during the duration of the exploitation rights granted, the parties concerned may request the amendment of the conditions of service of the compulsory licence.
(7) in the case of a variety essentially derived variety if the holder refuses to grant an initial exploitation of derivative, a non-exclusive compulsory licence may be granted pursuant to a final court ruling.
(8) where the holder of a biotechnological inventions calls for granting a compulsory licence for non-exclusive use of a protected variety, Ministry of agriculture and rural development may grant a compulsory non-exclusive license, provided that the payment of a reasonable remuneration to the holder of the protected variety, in the following situations: a) the holder of the invention patent holder asked for variety a license on a contractual basis and has not been obtained; or b) invention constitutes significant technical progress, economic interest.
(9) if the holder of a patent for a variety for requesting use of a biotechnological invention protected by a patent, the Bucharest Court, according to law No. 64/1991 on invention patents, republished, with subsequent amendments), may grant a compulsory non-exclusive license, with payment to the holder of a reasonable royalty.
— — — — — — — — — — * Note) Law No. 64/1991 was republished in the Official Gazette of Romania, part I, no. 541 august 8, 2007.
(10) At the request of the person motivated concerned, the Ministry of agriculture and rural development or, where appropriate, the Court may withdraw the compulsory license in Bucharest, when the circumstances which led to its grant have ceased to exist, provided that the legitimate interests of the person who has acquired it to be protected in an appropriate manner. The licence will not be revoked if the circumstances that gave rise to the granting of its likely to happen again.
(11) Decisions on the grant of a compulsory licence, as well as those relating to the remuneration provided for in relation to its use may be appealed at the Court of Bucharest within 30 days of receipt. Judgment of the Court is subject to appeal only to the Bucharest Court of appeal.
(12) the definitive judgments regarding the granting or, where appropriate, the withdrawal of the compulsory license shall be made by the person concerned to that record them ISTIS in national register of patents for sorts and public endorsement of those judgments in the Official Gazette, within one month of receipt.
Chapter IX Rights on new plant varieties in article 41 remedies against judgments ISTIS (1) decisions of ISTIS can be appealed by the persons concerned. The application will be filed within the two ISTIS months of the notification of the judgment, the reasons are contested, within 4 months.
(2) the notice of opposition or, where applicable, the application for revocation of the patent cancelling times for variety will be examined by the Committee responsible for reconsideration within 90 days of filing, if the resolution of the case allow evidence within that period. The composition of this Commission will be none other than the examination and will be made up of representatives of the Ministry of agriculture and rural development and of ISTIS. The Ministry will approve the review Commission, composed of experts on culture.
(3) decisions of the Commission shall be communicated to the parties within 15 days of the pronouncement and may be appealed to the Court of first instance of opposition Bucharest, within 30 days of the communication.
(4) judgment of the Court of Bucharest may be contested only by an appeal to the Court of appeal.
(5) At the request of the Court, is obliged to transmit ISTIS documents and information necessary for the prosecution of the case with which it was endowed.
Article 42 the powers of courts in disputes about the quality of the breeder, the patent holder for the variety or the other rights arising from the licence for variety, including the patrimonial rights of the breeder, the assignment or license regarding the failure times. 37 para. (1) and of article 23. 38 are within the competence of the courts.
Chapter X penalties Offences and section 1 Offences for infringement of article 43 (1) shall constitute the offense of infringement and is punishable with imprisonment from 3 months to 2 years, or with fine performing without the authorization of the holder of the patent for the variety of any act referred to in article 1. 30 paragraph 2. (1) and (2) the penalties provided for in paragraph 1. (1) the following acts shall be imposed: (a) committing) use for propagation material produced and sold, other than the registered names;
(b) the use of the registered name) of a new variety for propagation material produced and sold, which does not belong to this variety;
c) assigning, for propagation material produced and sold, has a name very close to that of the protected variety, so that it can produce confusion;
d) sale of propagating material provided false that belongs to the variety in respect of which a patent has been granted for variety, thus inducing error buyer.
Section 2 of Article 44 the action for infringement (1) an action for infringement may be switched on only after publication of the grant of the patent for the variety.
(2) If a licence has been granted and there are no other provisions in the contract, the licensee may bring an action for infringement only with consent of the holder of the patent for the variety.
(3) the holder of an exclusive licence may bring an action for infringement if the patent holder has notified for variety and it has not acted within the time requested by the licensee.
(4) in the action for infringement of patent holder started for variety, you may seek compensation for the damage.
Chapter XI evidence and precautionary measures precautionary measures, Article 45 (1) the holder of the patent for the variety may apply to the Court: a) ordering precautionary measures when there is a risk of infringement of the rights deriving from the patent for the variety and whether such breach is likely to cause an irreparable damage and there is a risk of destruction of evidence;
b) ordering, immediately after tracking the measures relating to the cessation of acts of infringement of the rights deriving from the patent for variety, committed by a third person with the introduction in trade of goods, which involves an impairment of these rights;
c) confiscation or destruction of ordering the measure of propagation material; 43 para. 2. (2) the Court will depend on the availability of the author of the infringement of rights arising from the licence holder to inform for the variety of the identities of third parties who participated in the production and distribution of propagating material; 43 para. (2) and (3) ordering the measures outlined in paragraph 1. (1) are applicable to the provisions of the code of civil procedure.
(4) When ordered precautionary measures, the Court may require the plaintiff to pay sureties in the amount established by, this.
(5) the Court will be able to ask the applicant to provide any evidence available to prove that he is the owner of the right which has been violated or whose violation is inevitable.
(6) In cases where the evidence in support of the plaintiff under the control of the defendant, the Court will be able to direct that the evidence produced by the defendant, under the condition that you guarantee the confidentiality of information, in accordance with the law.
(7) the Court shall order the claimant to pay can all damage caused to the defendant, as a result of an abusive exercise of procedural rights in respect of a new variety.
Article 46 (1) Skills Skills for implementing this law belong to ISTIS.
(2) as a body of ISTIS, specialist in the Ministry of agriculture and rural development, is the official designated authority for the granting of legal protection of varieties on Romanian territory, granting patents for new varieties, in accordance with this law and with observance of the conventions to which Romania is a party to, and shall have the following powers: (a) public records) shall examine applications for the grant of patents for new varieties;
b) organizes and keeps the national register of patent applications for varieties and the national register of patents for varieties;
c) Edit Official Gazette at regular intervals, which contains information on patent applications for varieties, the designation of new varieties and to propose names, as well as new varieties for which a patent has been granted;
d) develops the methodology for technical examination in order to establish distinctness, uniformity and stability of varieties for which has been requested to grant protection in accordance with the rules of the CPVO and UPOV, internal area;
e) establishes, for those species for which there are no guides or UPOV, CPVO technical examination methodology in accordance with domestic and international standards in force;
f) performs the technical examination in order to establish distinctness, the growing season, uniformity and stability (DUS) testing centers, the variety which has been requested to grant protection;
g) certifies authorized representatives for the procedures for the protection of new varieties of plants in front of ISTIS;
h) ensures the exchange of similar publications with the national authorities and international bodies and organizations;
I) develops cooperative relations with States parties to the Convention, contracting with the UPOV Office and with the Community Office.
(3) In exercise of his powers, the Ministry of agriculture and rural development: a) monitors the activity on protection of intellectual property rights, with all rights and obligations arising from this Act;
b) along with the authors ' associations ISTIS collaborates with, holders of patents for sorts, producers of seed and propagating material, with research institutes and the resorts, for the protection and promotion of new varieties, and determines development strategy in the field of creation of new varieties;
(c) the compulsory license) granted under the provisions of art. 40 para. (1);
d) non-exclusive compulsory licence granted under the provisions of art. 40 para. (8);
the territorial labour inspectorates) for the quality of the seed and propagating material of varieties protected in case of requesting the patent proprietor consents multipliers.
Article 47 the protection of new varieties abroad Romanian natural and legal persons have the right to choose the State or intergovernmental organization which will for the first time to submit an application for a patent for the variety or for a title of protection.
Article 48 national register of patent applications for varieties in the national register of patent applications for varieties (RNCBS) are published at least the following particulars: (a) the number of the patent application) for variety;
b) species, botanical taxon and the variety denomination;
c) filing date;
(d) the name and address of the applicant);
e) name and address of the breeder;
(f) the name and address of authorised representative);
g) changes to the legal situation of patent application for variety.
Article 49 national register of certificates for each variety in the national register of patents for sorts (SHESHA and VIDIO GAMES) are recorded at least the following information: a) date and number of the application for patent for the variety, completed in ISTIS;
b) priority date;
c) filing date;
(d) the name and address of the applicant);
e) where the applicant State has its seat;
(f) the name and address of authorised representative);
g) name and address of the breeder;
I) denomination of the variety;
j) name/name and address of the holder;/Head Office
k) changes concerning the address and name of the holder;
l) any modification or assignment of rights;
m) the release and maintenance of the patent for the variety;
n) patent holder for variety;
a declaration of renunciation) patents;
p) a judgment declaring or revocation, as appropriate.
Article 50 community plant variety rights office (1) where an applicant wishes to submit a Romanian request protection at the Community Office, it can lodge: a) directly to the Community Office, through a representative with residence or headquarters in the European Union; or
b) that will work ISTIS as receiver of the Office application.
(2) the request for the protection of new variety containing documents referred to in Regulation (EC) No 1782/2003. 2100/94 of 27 July 1994 establishing a system of Community plant variety rights, filed on ISTIS, should be sent to the Community Office within two weeks after filing, under condition of payment of registration tariff.
(3) the date of filing of the application to the Community Office shall be the date on which a complete application is received and the legal charges are paid.
(4) any variety protected by Community law can no longer be the subject of a patent for the variety.
(5) If the holder of a national law for a given variety acquires a Community law, the national title will be suspended.
Chapter XII transitional and final provisions Article 51 transitional and final provisions (1) applications for patents for variety, registered with the State Office for inventions and trademarks in accordance with the law No. 64/1991 and the governmental decision nr. 152/1992 approving the implementing regulation of the law nr. 64/1991), which has taken the decision for acceptance or rejection, deciding under the provisions of this law.
(2) this law shall enter into force 90 days after its publication in the Official Gazette of Romania, part I.
(3) the date of entry into force of this law shall be repealed the provisions relating to the protection of plant varieties and hybrids, referred to in art. 7 para. (3) and in article 8. 11 of law No. 64/1991, the provisions relating to plant varieties and hybrids. III of the governmental decision nr. 152/1992 *), and any other provisions to the contrary.
— — — — — — — — — — * Note) Government decision No. 152/1992 approving the implementing regulation of the law nr. 64 of 11 October 1991 on patents of invention, published in the Official Gazette of Romania, part I, no. 79 of 30 April 1992, as amended, was repealed by Government Decree No. 499/2003 approving the regulation implementing Law No. 64/1991 on patents of invention, published in the Official Gazette of Romania, part I, no. 348 of 22 May 2003, repealed by Government Decree No. 547/2008 approving the implementing regulation of the law nr. 64/1991 on patents of invention, published in the Official Gazette of Romania, part I, no. 456 of 18 June 2008.
Annex AGRICULTURAL PLANT SPECIES subject to the provisions relating to the farmer's privilege of Cicer arietinum) fodder plant l. Lupinus luteus-chickpea l.-yellow lupin Medicago sativa l.-Lucerne Pisum sativum l. (partim)-field pea Trifolium alexandrinum l.-berseem/Egyptian clover Trifolium resupinatum l.-Persian clover Vicia faba l.-Vicia sativa l.-common vetch Lolium multiflorum Lam.-italian ryegrass b) Avena sativa l. Grains-oats Hordeum vulgare l.-barley Oryza sativa l.-rice Phalaris canariensis l.-Canary grass
Secale cereale l.-rye X Triticosecale Wittm. -triticale Triticum aestivum l. Emend Fiori et Paol,-common wheat Triticum durum Desf. -durum wheat Triticum spelta l.-spelt wheat (c)) Potato Solanum tuberosum l.-potato d) technical crops and oil-seed Brassica napus l. (partim)-Swede rape Brassica rapa L oil-rape Linum usitatissimum l.-flax oil (except flax fibre) Note: we reproduce below art. III and IV of law No. 204/2011, which are not incorporated in the text of the consolidated law No. 255/1998 and applicable, further, that the provisions of law No. 204/2011: "Art. III. Article 3 of the Act-No. 186/2000 concerning Romania's accession to the International Convention for the protection of new varieties of plants of December 2, 1961, as revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991, published in the Official Gazette of Romania, part I, no. 547 of 6 November 2000, is hereby amended to read as follows: «Art. 3.-the Ministry of agriculture and rural development is designated to pay the International Union for the protection of new varieties of plants, the annual contribution determined in accordance with article 5. 29 of the International Convention for the protection of new varieties of plants. "
Art. IV.-after the entry into force of this law shall be repealed: a) the 3rd Section head. II, art. 18-21 and annex 4. 3 of Order No. 41/1998 on charges in the field of protection of industrial property and the arrangements for their use, republished in the Official Gazette of Romania, part I, no. 959 of 29 November 2006, as amended;
b) Government Decree No. 984/2007 approving the implementing regulation of the law nr. 255/1998 on the protection of new varieties of plants, published in the Official Gazette of Romania, part I, no. 638 of 18 September 2007. "