Portugal

Decree-Law No. 213/90
(of June 28, 1990)

TABLE OF CONTENTS

Article

The extraordinary progress made in plant improvement, due among other things to ever-greater knowledge in the fields of physiology and biotechnology, has been responsible for the appearance of new varieties in almost all developed countries.

Thanks to their superior or improved characteristics, those new varieties-already commonly called "prestige varieties"-are designed to solve, the problems of improving quality, increasing unitary yield, enhancing disease and parasite resistance or raising market value.

In order to produce and establish their new varieties, breeders have to devote a great deal of time to research, invest considerable amounts in the acquisition of material and conduct numerous experiments and growing trials.

It is therefore no more than justice that they should be granted breeders' rights In the form of a title of protection for such varieties, which, by ensuring just recompense for their skills and their work, at the same time strongly motivates them to develop their plant breeding work and thereby contribute to the defense and enrichment of the national genetic heritage.

Consequently,

Pursuant to subparagraph (a) of paragraph (1) of Article 201 of the Constitution, the Government decrees as follows:

Object

1.-(1) This Decree-Law establishes the legal regime governing breeders' rights in new plant varieties.

(2) Those botanical species the plant varieties of which may be the subject of breeders' rights shall be specified by order of the minister of Agriculture, Fisheries and Food.

Plant Varieties Eligible for Protection

2. Breeders' rights may be accorded solely In respect of those plant varieties which, according to the definition to be laid down by order of the Minister of Agriculture, Fisheries and Food, are deemed to be distinct, homogeneous, stable and new.

Content of Plant Breeder's Rights

3.-(1) The breeders' rights in a plant variety confer on their owner exclusive entitlement to produce and market plants of that variety or the corresponding reproductive or vegetative propagating material.

(2) Plant breeders' rights shall not prevent the use of the protected plant variety as initial or basic material for the production of other varieties, except where its repeated or systematic use is necessary.

Term of Plant Breeders' Rights

4.-(1) Plant breeders' rights shall have a limited term which shall be a minimum of 15 or 20 years, depending on whether they relate to herbaceous plants or to woody plants.

(2) Terms may differ according to species or group of species.

Lapse of Plant Breeders' Rights

5. Plant breeders' rights shall lapse, inter alia:

(a) when their term has expired;

(b) when fees due have not been paid;

(c) when the new plant variety no longer displays' the characteristics required by this Decree-Law and the Regulations under it;

(d) when the breeder or the actual owner so requests;

(e) when it is demonstrated that the holder of the rights is not the lawful owner thereof.

National Registry of Protected Varieties

6.-(1) The National Registry of Protected Varieties (Centro Nacional de Registo de Variedades Protegidas-CENARVE) is hereby created, to operate within the framework of the National Institute of Agricultural Research (Instituto Nacional de Investigaçao Agrária-INIA), the current President of which shall direct it.

(2) CENARVE shall be responsible for taking the necessary action for the implementation of this Decree-Law.

(3) The President of INIA, in his capacity as Director of CENARVE, shall be assisted, in the exercise of the functions conferred on him by this Decree-Law, by a Technical Board, the membership of which shall be laid down by order of the Minister of Agriculture, Fisheries and Food.

(4) The members of the Technical Board shall carry out their functions without remuneration.

Offenses

7.-(1) The production, marketing and use of plant varieties in breach of the provisions of Article 3 of this Decree-Law and the Regulations for which it provides shall constitute an offense punishable with a fine of 20,000 to 500,000 escudos.

(2) Negligence shall be punishable.

(3) Where liability for the offense lies with a legal entity, the maximum amounts of the fines shall be 6,000,000 escudos in the case of a fraudulent act or 3,000,000 escudos In the case of an act committed by negligence.

(4) Forty per cent of the proceeds from fines Imposed shall be paid to INIA, and the balance to the State Treasury.

Fees

8. For the purposes of registration with CENARVE and the keeping of its Register, the persons and entities concerned shall pay fees, the amount of which shall be set In accordance with paragraph (2) of Article 38 of Decree-Law No. 5-A/88 (of January 14, 1988).

Regulations

9. The technical provisions for the Implementation of this Decree-Law shall be approved by order of the Minister of Agriculture, Fisheries and Food.

Read and approved in the Council of Ministers on May 17, 1990. Aníbal António Cavaco Silva-Alvaro dos Santos Amaro-Luís Fernando Mira Amaral-Fernando Manuel Barbosa Faria de Oliveira.

Promulgated on June 11, 1990.

For publication.

Mario Soares, President of the Republic.

Countersigned on June 18, 1990.

Aníbal António Cavaco Silva, Prime Minister