Hong Kong, China

• Chapter: 490A PLANT VARIETIES PROTECTION REGULATION
  • Section: 1 (Omitted as spent)
  • Section: 2 Interpretation
  • Section: 3 Prescribed periods for giving descriptions, material and information
  • Section: 4 Testing of plant varieties
  • Section: 5 Requirements for proposed denominations
  • Section: 6 Register of Plant Variety Rights
  • Section: 7 Copies and extracts from register
  • Section: 8 Certain information to be published in the Gazette
  • Section: 9 Extension of time limit
  • Section: 10 Service of documents
  • Section: 11 Translation of documents
  • Section: 12 Allowances for advisers
  • Section: 13 Objections before grant
  • Section: 14 Fees
  • Section: 15 Species prescribed
  • Section: 16 Appeal
  • Section: 17 Reproductive material
  • Schedule: 1 FEES
  • Schedule: 2 SPECIES IN RESPECT OF WHICH DURATION OFGRANT IS 25 YEARS
  • Schedule: 3 NOTICE OF APPEAL
  • Schedule: 4 QUANTITY OF REPRODUCTIVE MATERIAL TOACCOMPANY APPLICATION
  • Schedule: 5 STOCK OF REPRODUCTIVE MATERIAL REQUIRED TOBE MAINTAINED

(Omitted as spent)

In this Regulation, unless the context otherwise requires"relevant variety" (有關品種)-

(a) in relation to an application for a grant of plant variety rights under the Ordinance, means the variety which is the subject of the application;

(b) in relation to an application for a declaration under section 31(1)(b) of the Ordinance that a variety ("the other variety") is an essentially derived variety from another variety ("the initial variety"), means the variety which is the subject of the application, and includes-

(i) the initial variety; and

(ii) the other variety.

An applicant shall-

(a) give to the Registrar the description in respect of the relevant variety as required by section 13(2)(a) of the Ordinance within 7 days after making the application;

(b) give to the Registrar the proposed denomination for the relevant variety as required by section 13(2)(b) of the Ordinance within 2 months after making the application;

(c) furnish the Registrar pursuant to section 13(3) of the Ordinance with the result of any test of the relevant variety undertaken or commissioned by the applicant with the approval of or as required by the Registrar under section 4(1) within 12 months after being requested by the Registrar to so furnish;

(d) furnish the Registrar pursuant to section 13(3) of the Ordinance with the result of any test of the relevant variety obtained by the applicant with the approval of or as required by the Registrar under section 4(1) within 2 months after being requested by the Registrar to so furnish;

(e) furnish the Registrar with the reproductive material and other information (except the result of any test of the relevant variety referred to in paragraphs (c) and (d)) pursuant to section 13(3) of the Ordinance within 2 months after being requested by the Registrar to do so,

or within such longer period as the Registrar may allow under section 9.

(1) In considering an application for a grant or an application for a declaration under section 31(1)(b) of the Ordinance, the Registrar, in order to satisfy himself that-

(a) (in the case of an application for a grant) the relevant variety is new, distinct, stable and homogeneous within the meaning of section 18 of the Ordinance; or

(b) (in the case of an application for a declaration under section 31(1)(b) of the Ordinance) the other variety (as referred to in the definition of "relevant variety" in section 2) is an essentially derived variety from the initial variety (as referred to in the definition of "relevant variety" in section 2) within

the meaning of section 31 of the Ordinance, may, if he thinks fit

(i)

upon the request of the applicant, commission any test of the relevant variety, and at his absolute discretion examine and evaluate the result of such test;

(ii)

approve at his absolute discretion and on such conditions as he may impose or approve the applicant's undertaking or commissioning at the applicant's own cost of any test of the relevant variety, and at his absolute discretion examine and evaluate the result of such test;

(iii) require the applicant to undertake or commission any test of the relevant variety at the applicant's own cost and on such conditions as the Registrar may impose or approve, and at his absolute discretion examine and evaluate the result of such test;

(iv)

upon the request of the applicant, obtain the result of any test of the relevant variety already conducted by a person or body independent of the applicant, and at his absolute discretion examine and evaluate such result;

(v)

approve at his absolute discretion and on such conditions as he may impose or approve the applicant's obtaining at the applicant's own cost of the result of any test of the relevant variety already conducted by a person or body independent of the applicant, and at his absolute discretion examine and evaluate the result of such test;

(vi)

require the applicant to obtain at the applicant's own cost the result of any test of the relevant variety already conducted by a person or body independent of the applicant that complies with such conditions as the Registrar may impose or approve in relation to the test, and at his absolute discretion examine and evaluate such result.

(2)

The Registrar may disregard the result of any test of the relevant variety undertaken or commissioned by the applicant with the approval of or as required by the Registrar under subsection (1) unless the conditions on which the Registrar approved the applicant's undertaking or commissioning the test or on which the applicant was required to undertake or commission the test (as the case may be), were complied with.

(3)

The Registrar may disregard the result of any test of the relevant variety obtained by the applicant with the approval of or as required by the Registrar under subsection (1) unless the conditions on which the Registrar approved the applicant's obtaining the result were complied with or unless the test complies with the conditions imposed or approved by the Registrar in relation to the test (as the case may be).

(4)

The applicant shall make payment to the Registrar of such sum as is necessary to defray any costs and expenses incurred by the Registrar in relation to the test of the relevant variety commissioned by the Registrar under subsection (1) or in relation to the obtaining by the Registrar of the result of any test of the relevant variety under that subsection, and such payment shall be made at such time and in such manner as the Registrar may require.

(5)

If the applicant fails to make the payment to the Registrar as required by subsection (4), the application shall be deemed to be withdrawn by the applicant on the expiration of the period within which the Registrar requires such payment to be made, and section 15(2) of the Ordinance shall apply accordingly.

(1)

The Registrar shall not approve a proposed denomination for a variety if it appears to him that-

(a)

it does not enable the variety to be identified;

(b)

it is not in such script, characters, figures or punctuation marks as required by subsection (2);

(c)

it is liable to give offence;

(d)

it is liable to mislead a person of average attentiveness concerning the origin, derivation, characteristics, value or identity of the variety, or the identity of the person who bred or discovered or developed the variety;

(e)

it is liable to cause confusion concerning the origin, derivation, characteristics, value or identity of the variety, or the identity of the person who bred or discovered or developed the variety;

(f)

it is identical, or can be confused, with a denomination or designation under which another existing variety of the same or of a related botanical species is registered in Hong Kong or in a UPOV country for the purposes of protection of plant variety rights;

(g)

it is identical, or can be confused, with a denomination or designation under which another existing variety of the same or of a related botanical species has previously been registered in Hong Kong or in a UPOV country for the purposes of protection of plant variety rights, where the protection afforded by the registration is no longer in force;

(h) it is identical, or can be confused, with any designation in which any other person has a prior right that prohibits its use as a denomination of the variety;

(i) it refers solely to attributes which are also common in other varieties of the species concerned;

(j) it consists of a botanical or common name of a genus or species, or includes such a name, where this is likely to mislead or cause confusion;

(k) it suggests that the variety is derived from or related to another variety when this is not the case; or

(l) it includes all or any of the following words or translation thereof in botanical sense in other languages-

(i) "variety";

(ii) "cultivar";

(iii) "form";

(iv) "hybrid";

(v) "cross";

(vi) "品種"；

(vii) "栽培品種"；

(viii) "變型"；

(ix) "雜交種"；

(x) "雜交"；

(2) (a) If a variety is one in respect of which no equivalent application has been made in a UPOV country under the law of that country, the proposed denomination for that variety

(i) shall be in English script or Chinese characters; and

(ii) may consist of figures or punctuation marks or both in addition to such script or characters.

(b) If a variety is one in respect of which an equivalent application has been made in a UPOV country under the law of that country and that application has been accepted, the proposed denomination for that variety shall be-

(i) in case the original denomination of that variety is in Chinese characters, whether with or without figures or punctuation marks in addition thereto, the same as that original denomination;

(ii) in case the original denomination of that variety is in Roman script, whether with or without figures or punctuation marks in addition thereto, the same as that original denomination;

(iii) in case the original denomination of that variety is in non-Roman script (other than Chinese characters), whether with or without figures or punctuation marks in addition thereto-

(A) a sufficient transliteration or translation of that original denomination in English script, with such corresponding figures or punctuation marks or both as appropriate, to the satisfaction of the Registrar; or

(B) a sufficient transliteration or translation of that original denomination in Chinese characters, with such corresponding figures or punctuation marks or both as appropriate, to the satisfaction of the Registrar.

(c) For the purposes of this subsection-"equivalent application"(相等的申請) means an application in a UPOV country under the law of that country that is equivalent to an application for a grant in Hong Kong;

"original denomination"(原有名目) means the denomination or designation of a variety for the purposes of an equivalent application in a UPOV country.

(3) If the Registrar does not approve a proposed denomination pursuant to subsection (1), the Registrar shall inform the applicant of the ground for not approving the proposed denomination and require him to propose within 1 month another denomination for the variety.

(1) The Registrar shall maintain the Register of Plant Variety Rights under section 8(1) of the Ordinance in such form as the Registrar considers appropriate, and shall make it available for inspection at this office by any member of the public during such hours of business as he may specify.

(2) The Registrar shall, in relation to an application for a grant, the making of which has been notified in the Gazette under section 13(6)(a) of the Ordinance, enter in the register the following particulars-

(a)

the name of the species of the relevant variety;

(b)

the proposed denomination of the relevant variety or the applicant's reference for identifying the relevant variety;

(c)

the application number assigned by the Registrar to the application;

(d)

the date on which the provisional protection took effect under section 17 of the Ordinance;

(e)

the name and address of the applicant and if the applicant is not the person who bred or discovered or developed the relevant variety, the name and address of such person;

(f)

the Registrar's decision of making or declining to make the grant applied for, as and when such decision is made, and the date of such decision; and

(g)

such other particulars as the Registrar considers to be important or useful.

(3)

The Registrar shall, in relation to an application for a declaration under section 31(1)(b) of the Ordinance, the making of which has been notified in the Gazette under section 13(6)(a) of the Ordinance, enter in the register the following particulars-

(a)

the name of the species of the relevant variety;

(b)

the proposed denomination of the other variety (as referred to in the definition of "relevant variety" in section 2) or the applicant's reference for identifying such variety;

(c)

the application number assigned by the Registrar to the application;

(d)

the date on which the provisional protection took effect under section 17 of the Ordinance;

(e)

the name and address of the applicant;

(f)

the Registrar's decision of making or declining to make the declaration applied for, as and when such decision is made, and the date of such decision; and

(g)

such other particulars as the Registrar considers to be important or useful.

(4) The Registrar shall, in relation to a grant, enter in the register the following particulars-

(a)

the grantee's name and address;

(b)

the date of the grant;

(c)

the duration of the grant;

(d)

the denomination approved by the Registrar for the protected variety;

(e)

the reference number under which the description of the protected variety's distinctive features are filed in the Registrar's file record kept under subsection (8);

(f)

details of every permission or order made under section 29 of the Ordinance in respect of the protected variety;

(g)

details of any cancellation of the grant;

(h)

where the Registrar is satisfied that any person other than the original grantee has become entitled to the grant or to a share in the rights of the grant, details of the entitlement;

(i)

where the grant was made pursuant to a priority accorded under section 20 of the Ordinance, details of the equivalent application concerned; and

(j)

such other particulars as the Registrar considers to be important and useful.

(5)

A grantee who has changed his name or address shall apply to the Registrar in writing for amendment of the register accordingly, and shall, if required, furnish the Registrar with documentary evidence in support of the change in name or address.

(6)

On the application of a person for the rectification of an error or omission in the register, the Registrar may, if he opines that the rectification may affect the interest of any person (other than the person making the application for rectification), publish details of it in the Gazette before making a decision.

(7)

Any document delivered to, served on or given to the Registrar in connection with any application may be amended with the consent of the Registrar after application in writing made to him by the person by whom or on whose behalf the document has been delivered, served or given.

(8)

The Registrar shall keep a file record of the description of the distinctive features of the protected varieties and shall hold the same available for public inspection at his office during such hours of business as he may specify.

(1)

Any person who applies for a certified copy or an uncertified copy (as the case may be) of an entry in the register or a certified extract or an uncertified extract (as the case may be) from the register shall be entitled to obtain such a copy or extract on payment of the prescribed fees.

(2) In this section-

"certified copy" (核證副本) means a copy certified by the Registrar and sealed with the seal of the Registrar; "certified extract" (核證摘錄) means an extract certified by the Registrar and sealed with the seal of the Registrar.

(1) As soon as practicable after the Registrar has decided-

(a) to make or decline to make a grant; or

(b) to make or decline to make a declaration under section 31(1)(b) of the Ordinance, the Registrar shall advertise his decision in the Gazette.

(2) As soon as may be after 1 January of every year, the Registrar shall prepare and publish in the Gazette a list of the relevant varieties and the protected varieties that have been entered in the register in the preceding year under section 6(2), (3) and (4) and are still in force as at that date.

(1) Where any document or thing is to be delivered, served or given or any act is to be done within a time limit specified by the Registrar, or prescribed by or required under this Regulation, such time limit may, upon application in writing made to the Registrar by the person required to deliver, serve or give the document or thing or do the act, be extended by the Registrar for such period and upon such terms, if any, as he thinks fit if in all the circumstances of the case he considers it reasonable to do so.

(2) The Registrar shall give to a person making an application in accordance with subsection (1) notice of his decision to extend or to refuse to extend the time limit in question.

(1) An applicant or grantee shall file with the Registrar an address for service within Hong Kong.

(2) An applicant or grantee may at any time change his address for service by notice in writing to the Registrar.

(3) Any document or thing required or authorized by this Regulation to be delivered to, served on or given to any person other than the Registrar may be delivered, served or given by being delivered to him personally, left for him at his address for service or sent to him there by post.

(4) Any document or thing required or authorized by this Regulation to be delivered to, served on or given to the Registrar may be delivered, served or given by being left for the Registrar, or sent to the Registrar by post, at his office or at such other place as the Registrar may have required in writing.

(5) Any document or thing sent by post in accordance with subsection (3) or (4) shall be deemed to have been received at the time when the letter, properly addressed and postage prepaid, containing it would be delivered in the ordinary course of post.

Remarks:
Amendments retroactively made-see 25 of 1998 s. 2

(1) Where any document submitted to the Registrar pursuant to the provisions of the Ordinance or this Regulation is in a language other than the English or the Chinese language, it shall, unless the Registrar otherwise directs, be accompanied by a complete and adequate translation into the English or the Chinese language.

(2) A translation of any document submitted to the Registrar shall be made by a qualified person and shall be certified by such person to be a full and correct translation of the document.

(3) A person making the translation is a qualified person if he is certified by the appropriate person mentioned in paragraphs (a) and (b) to be believed by such appropriate person to be competent to translate the document into the English or the Chinese language (as the case may be), that is to say-

(a) if the translation is made outside Hong Kong

(i) a notary public in the place where the translation is made; or

(ii) such other person as may be specified by the Registrar;

(b) if the translation is made in Hong Kong-

(i)

a notary public in Hong Kong;

(ii)

a solicitor of the High Court; or (25 of 1998 s. 2)

(iii) such other person as may be specified by the Registrar.

(4)

The Registrar may in any particular case, if he thinks fit to do so and upon such conditions as he thinks fit, permit translations to be submitted to him though not certified in accordance with the above requirements.

(1)

A person appointed by a court under section 35(1) of the Ordinance to be an adviser in relation to any appeal is entitled to receive as-

(a)

remuneration by way of allowances, for his services as an adviser in relation to that appeal; and

(b)

payment of travelling allowances in respect of time spent travelling in connection with undertaking

such services, an allowance of $1690 for each day he is necessarily absent from his place of residence, business or employment for the purposes of sitting with the court as an adviser in relation to that appeal.

(2)

If the person sits with the court as an adviser in relation to that appeal on any day, and the period during which he is necessarily absent from his place of residence, business or employment for the purposes of sitting with the court as such adviser does not exceed 4 hours, his allowance shall be $845.

(1)

If an objection is made under section 14 of the Ordinance, the objector shall upon the Registrar's request furnish the Registrar within 1 month after being requested by the Registrar with-

(a)

a statement of the grounds upon which the objector makes his objection;

(b)

particulars of any evidence by way of a statutory declaration in support of the objector's objection; and

(c)

any other information that the Registrar thinks relevant and requests from the objector.

(2)

If the objector fails to comply with subsection (1), he shall, unless the Registrar otherwise directs, be deemed to have abandoned his objection.

(3) The Registrar shall within 14 days of being furnished with the matters referred to in subsection (1)

(a)

send to the applicant concerned a copy of such matters; and

(b)

send to the applicant concerned and the objector notice of a date and time when he will hear argument in the case, which date shall, unless the applicant concerned and the objector consent to shorter notice, be at least 14 days after the date of the notice.

(4)

If the applicant concerned or the objector fails to appear before the Registrar on the date and at the time for hearing argument referred to in subsection (3)(b), the Registrar may

(a)

if he is satisfied that the failure to appear is due to reasonable cause, adjourn the hearing of argument to a date and time that he thinks fit; or

(b)

proceed to hear argument from the party appearing before him and make a decision without hearing argument from the party who fails to appear.

The fees set out in Schedule 1 are prescribed for the matters set out in that Schedule and shall be paid at such time and in such manner as the Registrar may specify.

The species set out in Schedule 2-

(a)

are prescribed for the purposes of section 22(2) of the Ordinance; and

(b)

are those in respect of which every grant shall be in force for a term of 25 years under section 22(2) of the Ordinance.

A notice of appeal filed under section 34(1) of the Ordinance shall be in the form set out in Schedule 3.

(1) For the purposes of section 13(1)(a) of the Ordinance, the quantity of reproductive material set out in column 3 of Schedule 4 is prescribed in respect of the kind of variety set out opposite such quantity in column 2 of that Schedule.

(2) For the purposes of section 18(9)(b) of the Ordinance, the stock of reproductive material in relation to a variety which is required to be maintained is the stock set out in column 3 of Schedule 5 opposite the variety concerned set out in column 2 of that Schedule.

[section 14]

Item Matter Amount

1. 1. An application under section 13(1) of the Ordinance $3960
2. 2. Fee for a grant, as mentioned in section 18(2)(c) of the Ordinance $260
3. 3. A request under section 29(1) of the Ordinance $2270
4. 4. An application under section 31(1) of the Ordinance $3960
5. 5. Obtaining uncertified copy or extract of an entry in the register $18 per copy or extract
6. 6. Obtaining certified copy or extract of an entry in the register $165 per certified copy or extract
7. 7. Annual grant fee, as mentioned in sections 18(9)(a) and 24(2)(g) of the Ordinance, in $1470
   relation to any variety
   

[section 15]

1. 1. Any species of tree
2. 2. Any species of vine

BETWEEN

與訟者：

................................................................................................................ Appellant (a) 上訴人(a) and

及

Registrar of Plant Variety Rights Respondent

植物品種權利註冊處處長 答辯人

TO THE COURT OF FIRST INSTANCE,

致原訟法庭：

Take notice that I/we .................................................... , do hereby give notice to appeal

請注意：本人／我們 ........................................................... ，現發出通知，根 under section 32 of the Plant Varieties Protection Ordinance against the decision made by the據《植物品種保護條例》第32條提出針對植物品種權利註冊處處長所作決定的上 Registrar of Plant Variety Rights.

訴。

On appeal from the decision of the Registrar of Plant Variety Rights given on ...................
現就植物品種權利註冊處處長於 ........................................ 作出的決定提出上
....................... whereby it was decided that:

訴，該決定的內容為：

1. 1. .........................................................................................................................................
   
2. 2. .........................................................................................................................................
   

For an order that the decision may be set aside and that:

現申請作出命令宣告該決定無效，並且申請作出以下命令：

1. 1. .........................................................................................................................................
   
2. 2. .........................................................................................................................................
   

And further take notice that the grounds of this appeal are that:

並請注意，這項上訴的理由如下：

1. 1. .........................................................................................................................................
   
2. 2. .........................................................................................................................................
   
3. 3. .........................................................................................................................................
   
4. 4. .........................................................................................................................................
   

Dated this ............. day of .............. 19 ..............
日期：19 .............. 年 ..............月 .............. 日

............................................. (Signature of Appellant)

(上訴人簽署)

(b) Filed this ................. day of ................ 19 ..................

(b) 提交日期：19 ............. 年 ............. 月 ............. 日

.............................................

Registrar, High Court

高等法院司法常務官

L.S.

(加蓋封印處)

This Notice was taken out by: ................................................................................................

本通知書由 ......................................................................................................... 提出。
Address for service: ......................................................................................................
送達地址： ................................................................................................................
Telephone No.: .............................................................................................................
電話號碼： ................................................................................................................

Note 註：

(a) An appellant may begin and carry on an appeal in the court by a solicitor or in person. Where an appeal is begun and carried on by a person being a body corporate, by an officer or a director of the body corporate authorized in that behalf, a copy of the resolution referred to in section 33(2) of the Plant Varieties Protection Ordinance shall be filed at the office of the Registrar of the High Court.

(a) 上訴人可由律師代表或親自在法院展開和進行上訴。凡上訴是由屬法人團體的人展開和進行的，並由為上訴而獲授權的該法人團體的高級人員或董事展開和進行，則須於高等法院司法常務官的辦事處提交《植物品種保護條例》第33(2)條所提述的決議的副本。

(b) This Notice of Appeal must be filed at the office of the Registrar of the High Court within the time period as provided in section 32 of the Plant Varieties Protection Ordinance. A copy of this Notice must also be served on the Registrar of Plant Variety Rights.

(b) 本上訴通知書須在《植物品種保護條例》第32條所規定的時限內於高等法院司法常務官的辦事處提交。本上訴通知書的副本亦須送達植物品種權利註冊處處長。

Indorsement of Service

送達文件背書

I did on ................... the ............. day of ....................... , 19 ........................ serve a true 本人確實已在19..........年.......... 月..........日星期 .......... 藉將上訴通知書的真確副本 copy of Notice of Appeal on the Registrar of Plant Variety Rights by leaving the same at . 留在[植物品種權利註冊處處長辦事處的地址]而將該上訴通知書送達處長。 [address of the Registrar's office]

Dated this ............ day of ............ 19 .............
日期：19............年............月............日

[Signed][簽署]

............................................................................. Name of Appellant/Solicitors for the Appellant

上訴人／上訴人代表律師

(25 of 1998 s. 2) [section 17(1)]

Item Kind of variety Quantity of reproductive material

1. Tree Such quantity of reproductive material as is sufficient to produce 40 plants
2. Vine Such quantity of reproductive material as is sufficient to produce 40 plants
3. Edible fungus 1 gram (measured by dry weight) net of reproductive material
4. Edible microscopic alga 1 gram (measured by dry weight) net of reproductive material
5. Edible macroscopic alga that is propagated by spore 1 gram (measured by dry weight) net of spore
6. Edible macroscopic alga that is not propagated by spore 50 grams (measured by dry weight) net of reproductive material
7. Gramineae that is propagated by seed 500 grams of seed
8. Gramineae that is not propagated by seed 2 kilograms of reproductive material
9. Any kind of variety that is propagated by seed and does not fall within any item 500 grams of seed in items 1 to 8
10. Any kind of variety that is not propagated by seed and does not fall within any Such quantity of

item in items 1 to 8 reproductive material as is sufficient to produce 60 plants

[section 17(2)] Item Variety Stock of reproductive material

1. Any variety of tree Such stock of reproductive material as is sufficient to produce 100 plants
2. Any variety of vine Such stock of reproductive material as is sufficient to produce 100 plants
3. Any variety of edible fungus 2 grams (measured by dry weight) net of reproductive material
4. Any variety of edible microscopic alga 2 grams (measured by dry weight) net of reproductive material
5. Any variety of edible macroscopic alga that is propagated by spore 2 grams (measured by dry weight) net of spore
6. Any variety of edible macroscopic alga that is not propagated by spore 100 grams (measured by dry weight) net of reproductive material
7. Any variety of Gramineae that is propagated by seed 1 kilogram of seed
8. Any variety of Gramineae that is not propagated by seed 4 kilograms of reproductive
   material
   
9. Any variety that is propagated by seed and does not fall within any item in 1 kilogram of seed
   items 1 to 8
   
10. Any variety that is not propagated by seed and does not fall within any Such stock of reproductive material

item in items 1 to 8 as is sufficient to produce 120 plants