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Implementing Regulations No. 150/2012 of Law No. 255/1998 on the Protection of New Plant Varieties, Romania

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Details Details Year of Version 2012 Dates Entry into force: September 7, 2012 Adopted: July 17, 2012 Type of Text Implementing Rules/Regulations Subject Matter Patents (Inventions), Trademarks, Plant Variety Protection, Enforcement of IP and Related Laws, IP Regulatory Body

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Main text(s) Main text(s) English Implementing Regulations No. 150/2012 of Law No. 255/1998 on the Protection of New Plant Varieties        
 Implementing Regulations of the Law on the protection of the new plant varieties No.255/1998

Excerpt from: 150/2012 Regulation – Implementing Regulations of the Law on

the protection of the new plant varieties No.255/1998

Ministry of Agriculture and Rural Development

Act Sheet

Integrating part of: Regulation No. 150/2012

Passed through:

Regulation No. 150/2012

Date of current version of the Regulations: 17/07/2012

Implementing Regulations of the Law on the protection of the new plant varieties

No.255/1998

Published in the Official Gazette No. 637 – 07/09/2012

Published in the Official Gazette, Part I no. 637 from 07/09/2012

Date of entry into force: 07 September 2012

CHAPTER I

General Provisions

ARTICLE 1

The Implementing Regulations of Law No.255/1998 on the protection of the new

plant varieties, republished, with its subsequent amendments, hereinafter referred to as

Regulations, provides the organizational and methodological framework needed for

the development of procedures associated with protection granted through new variety

patents.

ARTICLE 2

Property protection is granted based on the distinctness, uniformity and stability test

(DUS test), which involves the technical examination of varieties as field crops at the

State Institute for Testing and Registration of Varieties (ISTIS) testing centres and

certification of the novelty characteristics of the candidate variety.

ARTICLE 3

The provisions of the present Regulations refer to the property rights of breeders of

new plant varieties, natural persons or legal entities, of Romanian or foreign

nationality, residents of Romania or of another country.

ARTICLE 4

Any variety making the object of community property rights granted by the

Community Plant Variety Office can no longer receive national property protection or

any patent, as the community protection of intellectual property rights is valid on

Romanian territory.

ARTICLE 5

For the purpose of the present Regulations, the following terms read as follows:

a) law – Law No.255/1998, republished, with its subsequent amendments;

b) candidate variety – the variety for which a variety patent application was filed with

ISTIS;

c) essentially derived variety – it is predominantly derived from the initial variety,

while retaining the expression of essential characteristics that result from the genotype

or combination of genotypes of the initial variety. The essentially derived variety must

be clearly distinguishable from the initial variety though one or more characteristics

which can be described precisely.

d) similar variety – the variety declared by the applicant using the variety patent

application as being the closest to the candidate variety;

e) authorized agent – variety patent counselor, certified by ISTIS and empowered to

represent the applicant or the holder in the proceedings before ISTIS;

f) Official Bulletin – Official Bulletin of Industrial Property – the section for varieties

protected by variety patents.

ARTICLE 6

Representation

(1) The applicant or holder of a variety patent may be represented in the proceedings

held before ISTIS by an authorized representative or agent, defined at Art.5 letter e).

(2) Moreover, the designation of the authorized representative is made through a

power of attorney submitted at ISTIS, and which mentions the name, surname and

signature of the applicant or holder of a variety patent, according to case.

(3) The power of attorney will refer to only one variety patent application or to a

variety patent.

(4) Any document that is requested through the authorized representative regarding

the withdrawal of the variety patent application, renunciation of the variety patent,

together with any application regarding the transfer of variety rights shall be made

using a special mandate or power of attorney that explicitly states the withdrawal,

renunciation or transfer document.

(5) When the variety patent application is submitted at ISTIS by an authorized

representative, this person may sign the variety patent application based on the power

of attorney supplied by the applicant. The power of attorney is submitted together

with the variety patent application.

(6) The applicant or holder of a variety patent may have only one authorized

representative. In the case when, the application or other separate document mentions

several representatives, only the first written document shall be taken into

consideration.

CHAPTER II

Conditions of Granting National Variety Protection

ARTICLE 7

Denominations of Varieties

(1) Each variety for which the granting of protection is claimed bears a denomination

proposed by the applicant in the variety patent application form.

(2) The requirements for the designation of a variety denomination are based on the

following cases:

a) In the case of a trade mark as a prior right of a third party, the use of a variety

denomination shall not be considered by ISTIS if the product or trade mark is

identical or similar to the variety concerned.

b) In the case of a geographical indication or a designation of origin for agricultural

products and food stuffs as a prior right of a third party, a variety denomination in the

territory of the European Community and, implicitly, in the Romanian territory, shall

be considered to be precluded where the variety denomination would breach Article

13 of Council Regulation (EEC) No.510/2016 of the Council from March 20, 2006

with respect to the geographical indication or the designation of origin protected of

agricultural products and foods and with respect to the geographical indication or the

designation of protected origin in a Member State or in the European Community;

c) Accepting the suitability of a variety denomination based on the prior right

mentioned at letter b) can be achieved through the written consent of the holder of the

prior right with respect to the use of the denomination in relation to the variety that

has been obtained, with the condition that this written agreement shall not subject the

public to confusion in relation to the true origin of the product.

(3) When filing the variety denomination proposal using the request form, the

applicant must indicate if the proposed denomination is under the form of a “name” or

a “code”.

(4) A variety denomination shall be considered to cause its users difficulties as

regards recognition or reproduction in the following cases:

a) it consists of a single letter;

b) it consists of, or contains as a separate element, a series of letters not forming a

pronounceable word; except where this series in an established abbreviation, such an

established abbreviation shall be limited to a maximum of 2 sets of up to 3 characters

each, located at each end of the denomination;

c) it contains a number, except where this is an integral part of the name;

d) it consists of more than three words or elements;

e) it consists of or contains an excessively long word or element;

f) it contains a punctuation mark or other symbol.

(5) Where the denomination of the variety is in the form of a "code" it shall be

considered unsuitable if:

a) it consists of a number or numbers only, except where this is an established

practice

for designating varieties such as in the case of inbred lines or of similarly specific

types of varieties;

b) it consists of a single letter;

c) it contains more than 10 characters, letters, or letters and numbers;

d) it contains more than four alternating groups of a letter or letters and a number or

numbers;

e) it contains a punctuation mark or other symbol, a subscript, a superscript or a

design.

(6) In evaluating the identity of, or confusion with, a variety denomination of another

variety, the following shall apply:

a) "may be confused with" shall be considered to cover a variety denomination

containing a difference of only one letter, or of accents on letters, in relation to the

variety denomination of a variety of a closely related species, which has been

officially registered to be marketed in the European Union, the European Economic

Area or in a contracting party to International Union for the Protection of New

Varieties of Plants (UPOV), or is the subject of a trademark variety used in the

previously mentioned territories. However, the present conditions do not apply when a

difference of one letter in an established abbreviation as a separate entity of the

variety denomination is noted.

b) in the case of codes, a difference of only one character, letter or one digit shall

enable two codes to be satisfactorily distinguished.

(7) For closely related species the following applies:

a) if there are more than one class within a genus, the list of classes from table 1

below shall apply;

b) if classes encompass more than one genus, the list of classes from table 2 below

shall apply;

c) for genera and species not covered by the list of classes from table 1 and table 2, a

genus is considered to be a class.

Table 1

Classes within a genus

Classes Botanical names

Class1.1 Brassica oleracea L.

Class 1.2 Brassica, other than Brassica oleracea L.

Class 2.1 Beta vulgaris L. var. alba DC., Beta vulgaris L. var. altissima

Class 2.2 Beta vulgaris ssp. vulgaris var. conditiva Alef. (syn.: B. vulgaris L. var.

rubra L.), B. vulgaris L. var. cicla L., B. vulgaris L. ssp. vulgaris var. vulgaris.

Class 2.3 Beta, other than classes 2.1 and 2.2

Class 3.1 Cucumis sativus L.

Class 3.2 Cucumis melo L.

Class 3.3 Cucumis, other than classes 3.1 and 3.2

Class 4.1 Solanum tuberosum L.

Class 4.2 Solanum, other than class 4.1

Table 2

Classes encompassing more than one genus

Classes Botanical names

Class 201 Secale, Triticale, Triticum

Class 203*)

Agrostis, Dactylis, Festuca, Festulolium, Lolium, Phalaris, Phleum and Poa

Class Lotus, Medicago, Ornithopus, Onobrychis, Trifolium

204*)

Class 205 Cichorium, Lactuca

*) Classes 203 and 204 are not solely established on the basis of closely related

species

(8) A variety denomination shall be considered to mislead or to cause confusion if:

a) it conveys the false impression that the variety has particular characteristics or

value;

b) it conveys the false impression that the variety is related to, or derived from,

another specific variety;

c) it consists of, or contains comparatives or superlatives, or the botanical or common

name of a species.

CHAPTER III

Procedure for the granting of a variety patent

ARTICLE 8

The variety examination process for the granting of a variety patent includes the

following steps:

a) filing of the variety patent application;

b) formal examination of the variety patent application;

c) substantive examination of the variety patent application;

d) technical examination of the new variety;

e) ISTIS decisions;

f) provisional protection;

g) issue of the variety patent and registration of the variety denomination;

h) revocation of the variety patent.

ARTICLE 9

Content of the Application for Variety Patent

(1) The variety patent application must be filed in Romanian language, in two copies,

using type no. 1 forms, the model being provided at Annex no.1, and must comprise

the following:

a) name of the applicant (natural person or legal entity) and identification data;

b) authorized representative (power of attorney), whether this is the case;

c) denomination of species;

d) proposed denomination of species;

e) provisional denomination of species (denomination awarded by the breeder);

f) must mention if the variety has been genetically modified;

g) breeder/breeders (name and address);

h) if the breeders are not the same with the applicant, the type of applicant’s variety

assignation;

i) information on any applications submitted in any European Union member state or

UPOV;

j) the right of priority;

k) commercial exploitation of the variety;

l) official technical examination.

(2) The application must be filed together with the following documents:

a) technical questionnaire issued by the Community Plant Variety Office (CPVO) or

by the International Union for the Protection of New Varieties of Plants (UPOV) or

by a national guide, filled out by the breeder;

b) technical questionnaire – the confidential part, only for parent lines of hybrid

varieties (no.2 type form included in Annex no.2);

c) proof of payment of the filling fee;;

d) power of attorney for the representation of the applicant or holder, drawn up in

Romanian or accompanied by a certified translation in Romanian, if necessary;

e) the form for assigning the legal representative (power of attorney)completed by the

applicant, whether this is the case (type no.2 form included in Annex no.2);

f) name/denomination of the breeder and a declaration from the applicant, according

to which, to the best of his knowledge, no other persons have been involved in

breeding, discovery and development of the new variety;

g) the contract for assigning the patent variety rights, if the applicant is different from

the breeder;

h) documents confirming the priority in another state;

i) other documents and information regarding the provenience and variety breeding

conditions.

(3) The patent variety application can be filed together with the technical examination

report and variety registration certificate, if they were issued prior to the application

date.

(4) Variety’s denomination proposal is filed by the applicant using a separate form

(no.4 type form included in Annex 4).

(5) The variety patent application can be accompanied by any other documents

providing information about a first application filed in another country.

(6) At number 7 from the form, in the case when several breeders apply, their names

and residencies will be completed at “Continuation of no…section” found at the

bottom of the application form.

ARTICLE 10

Formal examination of the variety patent application

(1) A formal examination of the application shall be carried out within one month

from the payment registration which accompanies the filing process of a variety

patent application and it consists of the thorough analysis of requirements provided at

Article 10 paragraphs (1)­(4) of the Law and Article 9 from the present Regulations.

(2) The following criteria shall be reviewed:

a) if the applicant is the person entitled to receive the variety patent;

b) if the variety patent rights belong to one or more breeders;

c) the names of the declared breeders must coincide with the names of the breeders

enlisted in the technical evaluation report of the candidate variety, if the afore

mentioned test has been performed prior to the application date.

d) the document certifying the assignation of rights, where necessary;

e) if the variety patent application and variety denomination forms are completed

correctly.

(4) The section from the variety patent application where the applicant declares, on

his own responsibility, that he did not market the new variety, according to Article 6

of the Law, must be completed with such information or, if he had marketed the

variety, the date and countries must be mentioned.

(5) Where it has been ascertained that the variety patent application meets Articles

(2)­(4) provisions, the application shall be given an official filing date in the National

Register of Variety Plant Applications, and during a period of one month, the

applicant shall be notified about the approval of the application.

(6) Variety patent applications are published in the next Official Industrial Property

Bulletin, as the information to be published is edited during a three­month period

since the filing registration date included in the National Register of Variety Plant

Applications.

(7) For each candidate variety, the species and proposed denomination together with

the provisional denomination are published and the filing date of the application, the

claimed priority, whether this is the case, and the applicant’s identification data.

(8) When the applicant is not entitled to receive the variety patent right and/or the

process of granting a variety patent right is the subject of litigation or dispute , ISTIS

suspends the examination procedure for granting of a variety patent until the court

decision is definitive and irrevocable. The respective person shall notify ISTIS

regarding such court decisions.

(9) When the application is incomplete, incorrect or contains irregularities, the

applicant is notified and is given a thirty day period since receiving the notification to

remedy the results.

(10) When the applicant fails to answer or request an extension for the time limit

according to paragraph (9) or does not complete the technical questionnaire within the

two­month time limit, according to paragraph (3), the application is rejected by the

ISTIS Examination board.

(11) The ISTIS Examination board consists of three (3) members who are responsible

for granting the variety patent rights at the institute.

ARTICLE 11

Substantive examination of the application

(1) According to Article 17, paragraph (1) of the Law, the documents forwarded by

the applicant when filing the variety patent application for the granting of protection

rights shall be examined regarding the novelty and denomination of the candidate

variety.

(2) The variety patent application which meets the conditions provided at Article 16,

paragraph (1) of the law, shall be examined in order to verify the following:

a) the application refers to a variety within the meaning of Article 2, letter a) of the

Law;

b) the variety belongs to the declared botanical taxon;

c) the candidate variety is new, according to Article 6 of the Law;

d) the priority right of the variety is mentioned, according to Article 14 of the Law,

where it is necessary;

e) the denomination proposed by the applicant is correct and meets the provisions of

Article 15 of the Law and Article 7 of the present Regulations.

(3) The variety denomination shall be examined by ISTIS experts using the databases

of the Community Plant Variety Office, The International Union for the Protection of

New Varieties of Plants and Organisation for Economic Co­operation and

Development in order for it to comply with Article 7, paragraph (6), letters a) and b)

and paragraph (7).

(4) If ISTIS decides to reject the variety patent application due to the lack of

compliance regarding the novelty or denomination of the variety or whether the

applicant exceeds the six­month time limit allowed for the substantive examination,

and does not pay the examination fee, the applicant shall be notified regarding the

decision, including the reasons behind the application refusal and he will have a

maximum three­month period to reply..

(5) Upon applicant’s express request, the reply time frame mentioned at paragraph (4)

can be extended with an additional two months, according to provisions of Article 17,

paragraph (3) of the Law, together with the payment of the legal fee.

(6) When the applicant does not reply within the allowed time frame, ISTIS rejects the

variety patent application.

(7) When the variety patent application meets all the provisions of Article 6, 10, 12

and 16 of the Law, the ISTIS Examination Board commences the technical

examination of the candidate variety.

(8) The conditions for performing the technical examination of the candidate variety

at ISTIS or at another competent national authority which has a bilateral

administrative agreement or contract signed with ISTIS, or when such examination

was performed by ISTIS or by another authority from an European Union country and

a favorable technical examination report already exists, are stipulated in Article 17,

paragraph (4) of the Law;

(9) The technical examination report issued by ISTIS or by other entities from

European Union member states, if they already exist upon filing of the variety patent

application, can be submitted together with the variety patent application.

ARTICLE 12

Technical examination of the new variety

(1) The technical examination is organized by ISTIS according to the provisions of

Article 34, paragraph (2), letter B) of No.266/2002 Law on the production,

processing, quality control and certification, marketing of seeds and propagating

material, as well as the registration of plant varieties, republished, together with the

CPVO and UPOV guidelines and regulations in this field of activity.

(2) In keeping with the provisions of Article 18, paragraph (2) of the Law, the

technical examination of the variety can be also performed by a similar international

authority from a European Union member country which has a bilateral type of

agreement signed with ISTIS.

(3) Deadlines for the filing of the testing applications, for sending the seeds and seed

amounts and propagating materials needed for testing and safekeeping in the reference

collection are found in Annex 4 of the Order of the Minister of Agriculture, Forestry

and Rural Development No.1.348/2005 for the approval of the Regulations on testing

and registration of crop varieties, with its subsequent corrections and amendments,

and in Annex 3 of the Order of the Minister of Agriculture, Forestry and Rural

Development no.1.349/2005 for the approval of the Regulations on testing and

registration of legume varieties, with its subsequent corrections and amendments.

(4) Following the technical examination performed through growing tests for the

variety which meets the distinctness, uniformity and stability characteristics, a

technical examination report is issued.

(5) In order to perform the growing tests correctly, the applicant shall supply

documents relative to the cultivation of the candidate variety.

(6) After the first year of crop trials, the preliminary report shall be sent to the

applicant and it shall comprise information regarding the cultivation type of the

candidate variety.

(7) By way of exception, the testing period may be extended by ISTIS or upon request

by the applicant, provided that the legal fee is paid.

(8) After concluding the crop tests, and if the variety has met the distinctness,

uniformity and stability criteria, ISTIS issues the technical examination report which

comprises the description of the variety according to UPOV, CPVO and national

guide requirements.

(9) When the findings of the tests are not valid, the applicant is notified and allowed a

three month period to reply to such findings. Upon expiry of the previously mentioned

period, if the applicant fails to answer, ISTIS decides to reject the variety patent

application and publishes the decision in the Official Bulletin.

ARTICLE 13

Decisions of ISTIS

(1) Following the preliminary and substantive examination of the variety patent

application and the technical examination report, ISTIS grants the patent to the

candidate variety or rejects the application according to Article 20 of the Law.

(2) If the conditions provided in Articles 6­9 and 15 of the Law are met and a positive

technical examination report was issued, then ISTIS decides to grant the variety patent

and publishes the decision in the first number of the Official Bulletin which is issued

after the decision is final.

(3) Appeals shall be settled by the Board of Appeal during a ninety­day period from

the submission of the appeal, according to Article 41, paragraph (2) of the Law.

(4) The decisions of the Board of Appeal can be settled in court at Bucharest Tribunal,

and the decision of the Bucharest Court of Appeal can be subjected to appeal in a

higher court or in trial court according to provisions of Article 41, paragraphs (3) and

(4) of the Law.

ARTICLE 14

Provisional protection

(1) Provisional variety protection is granted based on provisions of Article 22,

paragraph (1) of the Law.

(2) The applicant of the variety patent may request for the rights foreseen at Article 30

of the Law to be revoked only after the publishing of the variety patent application.

ARTICLE 15

Extension of the time limit

In keeping with the provisions of Article 23 paragraph (1) of the Law, the extension

of the time limit for the examination of the application may be requested by the

applicant based on reasonable grounds though a written statement of reason submitted

at ISTIS, and shall be subject to the payment of the fee adequate to the procedure it

refers to.

ARTICLE 16

Withdrawal of the variety patent application

(1) Pursuant to the provisions of Article 24 of the Law, the applicant or his legal

representative, by power of attorney, may explicitly request the withdrawal of the

variety patent application according to Article 4 of the Law.

(2) The variety patent application is considered to be withdrawn on the date the

written notification is received by ISTIS.

ARTICLE 17

Revocation of the variety patent

(1) By virtue of Article 25 provisions, paragraph (1) of the Law, any person may

submit at ISTIS a written revocation request based on substantiated claims, during a

three­month period since the publishing of the decision that grants a variety patent in

the Official Bulletin, if the following criteria is met:

a) the variety is not new, according to Article 6 of the Law;

b) the variety is not distinct, according to Article 7 of the Law;

c) the variety is not uniform, according to Article 8 of the Law;

d) the variety is not stable, according to Article 9 of the Law;

e) the applicant is not entitled to receive the variety patent, according to Article 10 of

the Law;

f) the denomination of the variety does not comply with or breaches some of the

subsequently held property rights, according to Article 15 of the Law;

(2) The variety revocation request shall be submitted together with documents that

substantiate claims together with proof of paying the revocation application fee, and

the person who requested the revocation shall be offered access to documents which

led to the granting of the variety patent.

(3) In order to reach a revocation decision, the assembled Board of Appeal may ask

the person forwarding the revocation request to provide additional information

regarding the variety in question.

(4) When the revocation request is formulated based on lack of compliance with the

distinctness, uniformity and/or stability characteristics, the Board of Appeal may

request the repetition of the trial tests conducted by ISTIS subject to payment of legal

fees, or to request the participation of a variety crop expert during the trial tests of the

variety in question.

(5) ISTIS shall inform the applicant that a revocation request was submitted and shall

provide a time limit for reply.

(6) In the case when growing tests are repeated, according to paragraph (4), the

applicant can inspect the crop tests in order to support his variety.

CHAPTER IV

Fees for the grant of the variety patent

ARTICLE 18

Fees for the grant of variety patent and registration of variety denomination

(1) The fees for the filing of the variety patent application and the examination of the

variety denomination are paid simultaneously with the submission of the application

at ISTIS.

(2) The fees for priority claim can be paid together with submitting the application or

during a period of three months since the date of the application filing.

(3) The fees for the formal examination of the variety patent application can be paid

up until the publishing of the application for the variety patent.

(4) When the applicant omits to pay the formal examination fee up until the

publishing date of the application, ISTIS notifies the applicant and charges an

additional 50% fee. Payment after the date of the formal examination can be made by

the applicant during a time limit of six months since the filing date of the application.

(5) The fees for the distinctness, uniformity and stability test (DUS test) are paid at

ISTIS, according to the Order of the Minister of Agriculture and Rural Development

no.84/2011, on the approval of fees and procedures for the examination of plant

varieties requesting registration in the Official Catalogue of Varieties Marketed in

Romania and in the Recommended varieties list, together with the variety purity

control and seed multiplication, in effect.

(6) In the case when the technical examinations are performed by a competent

authority from a European Union member state up until the filing date of the variety

patent application, the applicant does not pay any additional fees associated with the

technical examination of the variety, but must purchase the technical report.

(7) The technical report purchase fee from another competent authority from a

European Union member state is paid by the applicant at the authority which has

performed the variety test and issued the technical examination report.

(8) The fees for issuing the variety patent can be paid during a three­month period

since the date of the publication of the decision to grant the variety patent, provided

that during the mentioned time limit an appeal against the decision to grant the variety

patent or withdrawal decision is not submitted.

(9) In the case of a variety patent annulment request, the fee for the examination of the

annulment application is paid together with the variety patent annulment request,

according to the Law.

(10) The annual maintenance fee of the variety patent is payable on a yearly basis, the

due date being the first date of each year of protection, which starts on the date of the

granting of the variety patent.

(11) If the annual maintenance fee of the variety patent was not paid up until the start

of the next year of protection, it can be paid during a period of six months but with an

additional 50% of the annual fee.

CHAPTER V

Protection of plant varieties

ARTICLE 19

Duration of variety protection.

The duration of the variety protection spans a period of 25 or 30 years and is

established according to each species, according to provisions of Article 29 of the

Law.

ARTICLE 20

Rights of the variety patent holder

(1) The rights of the variety patent holder are laid down in Article 30 paragraph (1) of

the Law.

(2) Without infringing provisions laid down in Articles 31 and 32 of the Law, the

owner grants an authorization for activities foreseen at Article 30 paragraph (1) of the

Law regarding the new variety constituents or the harvested material of the protected

plant variety.

(3) The rights conferred by the variety patent may not breach the legal provisions

adopted on the grounds of the public morality, order and safety, protection of health

and life of humans, animals and plants, the protection of the environment, the

protection of industrial or commercial property, or the safeguarding of competition, of

trade and of agricultural production.

ARTICLE 21

Farmer’s privilege

(1) Small farmers who cultivate agricultural plant species, foreseen in annex to the

law, have the right to use seeds and cultivate protected varieties according to

provisions of paragraph 32 of the Law.

(2) The payable amounts, payment possibilities and dates shall be established though

contract or agreement signed between parties, namely the holder and farmer or their

legal representatives.

CHAPTER VI

Lapse of variety patent rights

ARTICLE 22

Invalidation of the Variety Patent

ISTIS declares the variety patent as null and void in accordance with provisions of

Article 34, paragraph (1) of the Law.

ARTICLE 23

Forfeiture of Variety Patent Holder’s Rights

The variety patent holder rights are declared forfeit in accordance with the provisions

of Article 35, paragraph (1) of the Law.

ARTICLE 24

Renunciation of the Variety Patent

Renunciation of the variety patent is achieved according to provisions of Article 36,

paragraph (1) of the Law, based on a written declaration submitted at ISTIS by the

breeder together with the proof of sending through mail the decision to renounce the

variety patent rights.

CHAPTER VII

Exploitation of the protected variety

ARTICLE 25

Maintenance of the protected variety

(1) In order to verify the maintenance of the protected variety, the holder is obliged to

supply upon ISTIS request, at pre­established intervals, according to species, samples

of the protected variety and components, during the validity period of the variety

patent.

(2) When the holder does no comply with the request to supply information and

propagating material, in accordance with paragraph (1), and does not pay the

maintenance fees in force, his rights under the variety patent shall be declared as

forfeit.

ARTICLE 26

Transfer of variety rights

The transfer of variety rights is performed in accordance with Article 38 provisions of

the Law.

ARTICLE 27

License contract

Exclusive and non­exclusive licenses are granted in accordance with provisions of

Article 39 of the Law.

ARTICLE 28

Compulsory license

The non­exclusive compulsory license is granted based on public interest grounds by

the Ministry of Agriculture and Rural Development, in accordance with the provisions

of Article 40 of the Law.

CHAPTER VIII

Protection of rights of new plant varieties

ARTICLE 29

Appeals against decisions of ISTIS

(1) Appeals or requests for revocation, cancellation or revalidation of the variety

patent shall be made in writing and submitted at ISTIS and accompanied by

substantiating documents and the proof of payment of the in effect.

(2) For justified special cases, which require the repetition of the distinctness,

uniformity and stability growing tests, the time limit for the examination can be

extended.

ARTICLE 30

Competence of the Courts of Law

(1) Litigations within the competence of the courts of law are mentioned at Article 42

of the Law.

(2) Following the solving of litigations concerning the protection of the new variety

by the competent court of law, the concerned persons shall communicate ISTIS during

a thirty day period the definitive and irrevocable decision of the court of law for it to

be entered, according to case, in the National Register of Variety Patent Applications

or the National Register of Variety Patents and published in the Official Bulletin.

ARTICLE 31

National Registers Maintenance

(1) National Register of Variety Patent Applications and National Register of Variety

Patents are entered into and kept at ISTIS.

(2) Registers mentioned at paragraph (1) shall comprise the sections set forth in

Article 48 and 49 of the Law.

ARTICLE 32

National periodical publications

At least once every three months ISTIS publishes the Official Bulletin of Industrial

Property which comprises the following information:

a) variety patent applications, which include the botanical taxon, the provisional

denomination, official filing date together with the name and address of the applicant,

of the breeder or of any other authorized representative concerned thereof;

b) all the cases associated with ceasing the procedure of granting the variety patent,

including the information from letter a) above.

c) variety denomination proposals;

d) any modifications of the holder’s or agent’s personal information;

e) official date of the variety protection granting and official date of lapse of variety

patent rights and reasons for termination thereof;

f) courts of law decisions, as the case may be.

ARTICLE 33

Information on the variety patents published in the official bulletins, during the entire

period of protection, provisional or definitive, is also sent at CPVO.

ARTICLE 34

(1) The provisions of the Regulations concern ISTIS, breeders who are natural or

legal entities, together with variety patent holders, who shall implement and enforce

the provisions of the present Regulations.

(2) Annexes no.1 – 4 are an integrating part of the present Implementing Regulations.

ANNEX No.1 of the Implementing Regulations

No.1 Form

VARIETY PATENT APPLICATION FORM

a

a

a

a

Indications for completing the variety patent application form’s sections

The variety patents application is completed in two copies using the no.1 form, in

Romanian, in an electronic format or in handwriting.

The application can be submitted:

a) directly at ISTIS Office (State Institute for Testing and Registration of Varieties);

b) by mail with acknowledgement receipt card;

c) by email, if an electronic signature exists;

If a section from the patent application is not sufficient for writing down the

information, the information shall be completed using the section “Continuation of

section…” found at the bottom of the application form.

1. Name and surname or denomination, address (street, number, city, county, country)

or registered office address of the applicant, including postal code, telephone and fax

with area code, e­mail. In the case of several applicants, the same rule applies to all.

2. Is completed when the applicant is represented by an authorized agent and includes

the name, surname or denomination, address or registered office address of the

representative, including postal code, telephone and fax, together with the unique

registration code from the Trade Register Office. The variety patent application is

filed together with no.3 form for assigning the legal representative or agent.

The power of attorney will be filed together with the variety patent application.

3. In the case of several applicants and if they are represented before ISTIS by a legal

representative, this section will include information about the applicant who will

maintain correspondence with ISTIS. In the case such information is not provided,

ISTIS will keep in touch with the first applicant mentioned on the form.

4. Will include the botanical taxon in Latin (genus, family, species, subspecies,

variety) and common name of the variety.

5. Will include the applicant’s proposed variety denomination, written in capital

letters, which will also be included in no.4 form for the denomination. The provisional

variety denomination will be also completed (denomination awarded by the breeder)

in capital letters.

6. The Yes or No box will be ticked in the case when the variety has been genetically

modified. If Yes is completed, the application will be accompanied by the deliberate

release into the environment of genetically modified organisms written authorization.

7. Name and addresses of the breeders. If the breeder/breeders is/are not the same

with the applicant/applicants, information must be provided regarding the assignation

of the variety rights (cession or assignment, inheritance or other way) and it is

confirmed with the original document or legalized copy attached to the patent

application form.

8. Is completed solely by applicants who also have applications previously submitted

in other European Union or International Union for the Protection of New Varieties of

Plants (UPOV) member states, who will provide information regarding the protection

of the variety through a certificate, if it is included in an official catalogue or if it is

granted protection through a patent. For each situation the country is indicated,

number and date of the application, office, stage and denomination of the variety or

denomination awarded by the breeder.

9. In the case when one or several priorities are claimed based on previously filed

applications, the state, date and number of the first filing of the application shall be

completed. Documents confirming priority claim can be filed together with the variety

patent application or during a period of three (3) months from the filing date.

10.1 Date, country and denomination of the variety marketed or sold, in the case

when, on the filing date of the variety patent application or priority claim, the

propagating or harvested material was commercially used according to stipulations of

Article 6, paragraph (1) from Law No.255/1998 on the protection of plant varieties,

republished with its subsequent amendments.

10.2 In the case when the variety was repeatedly used in order to obtain hybrid

varieties, the applicant will mention for each variety the date, country and name of the

variety.

10.3 In the case when the variety was made available to third parties by the breeder

and such situations are not included at 10.1 and 10.2 sections, such instances shall be

also mentioned.

11. The applicant will provide exact information regarding the distinctness,

uniformity and stability (DUS) test, according to rules and regulations of the

Community Plant Variety Office (CPVO), the International Union for the Protection

of New Varieties of Plants (UPOV) or the national guide. In the case when such

examination already took place or is currently in development, the applicant must

provide the name of the country (11.1­11.3 sections). At 11.4 section, if the candidate

variety is part of a hybrid’s parent line or is and was examined together with the

hybrid, the name of the hybrid and country where the examination is or was

performed will be completed.

12. The box associated with the type of novelty characteristic of the variety must be

ticked and the declaration must be signed.

13. The form is signed by the applicant/legal representative or agent.

14. The boxes associated with the documents annexed with the application must be

ticked, and the number of pages/copies must be filled out.

15. Is completed and signed by ISTIS representative.

ANNEX No.2 of the Implementing Regulations

No.2 Form

TECHNICAL QUESTIONNAIRE

Confidential Part (only for parent lines of hybrid varieties)

ANNEX No.3 of the Implementing Regulations

No.3 Form

ASSIGNING THE LEGAL REPRESENTATIVE OR AGENT

ANNEX No.4 of the Implementing Regulations

No.4 Form

VARIETY DENOMINATION PROPOSAL


Legislation Implements (1 text(s)) Implements (1 text(s))
Historical Versions Repeals (2 text(s)) Repeals (2 text(s))
No data available.

WIPO Lex No. RO080