LAWS OF REPUBLIC OF INDONESIA
ON
WITH THE BLESSING OF GOD THE ALMIGHTY
THE PRESIDENT OF THE REPUBLIC OF INDONESIA,
Considering:
In view of:
With the joint agreement between
THE HOUSE OF REPRESENTATIVES REPUBLIC OF INDONESIA
and
THE PRESIDENT OF THE REPUBLIC OF INDONESIA
HEREBY RESOLVE:
LAW ON PLANT VARIETY PROTECTION
CHAPTER 1 GENERAL PROVISIONS
Article 1
The terminology used in this Act shall have the following meanings:
CHAPTER II SCOPE OF THE PLANT VARIETY PROTECTION
Part One Plant Varieties That May Be Issued Plant Variety Protection
Article 2
Part Two Plant Varieties That Cannot Be Issued Plant Variety Protection
Article 3
Varieties that cannot be given Plant Variety Protection are those that are used for purposes which conflict with prevailing laws, social order, ethics/morality, religious norms, health and the conservation of the environment.
Part Three Duration of Plant Variety Protection
Article 4
Part Four Owner of Plant Variety Protection
Article 5
Part Five Rights and Responsibilities of Plant Variety Protection Rights Holder
Article 6
Article 7
Article 8
Article 9
Part Six Exceptions to Plant Variety Protection Rights
Article 10
CHAPTER III PLANT VARIETY PROTECTION RIGHTS APPLICATION
Part One General
Article 11
Article 12
Article 13
Article 14
Part Two Acceptance of Plant Variety Protection Rights Application
Article 15
Article 16
Article 17
In the event that there are deficiencies as referred to in Article 16 paragraph (1), the acceptance date of the PVP rights application referred to in Article 16 paragraph (2) shall refer to the date when the PVP office finally receives a revised and complete application.
Article 18
If the deficiencies of the application are not corrected within the specified time period provided in Article 16 paragraphs (1) and (2), the PVP office shall inform the applicant in writing that the PVP rights application is deemed withdrawn.
Article 19
Part Three Amendments to Plant Variety Protection Rights Application
Article 20
Part Four Withdrawal of Plant Variety Protection Rights Application
Article 21
Part Five Prohibitions On Filing of Plant Variety Protection Rights Application and Obligation to Maintain Confidentiality
Article 22
While still bound officially on government duty a year after retirement or non-employment for any reason, the PVP officer or any authorized individual carrying out the task for and on behalf of the PVP office is prohibited from applying or obtaining PVP rights or any rights related to it through any manner except for PVP rights ownership that is obtained as a successor in title.
Article 23
From the date the PVP application letter is received, all staff of the PVP office are obligated to safeguard the confidentiality of the variety and the PVP rights application documents until the date the PVP rights application is announced.
Part One Announcement of Plant Variety Protection Rights Application
Article 24
Article 25
Article 26
The announcement referred to in Article 24 paragraph (2) shall include the following:
e. | Description of variety; | ||||||
---|---|---|---|---|---|---|---|
f. | Description | that | includes the information | stipulated | in | Article | 11 |
paragraph (4) for a transgenic variety. |
Article 27
The PVP office shall provide a designated space for interested members of the public the opportunity to examine the documents of the PVP rights application that have been announced.
Article 28
Part Two Inspection
Article 29
Article 30
Article 31
Article 32
Part Three Acceptance or Rejection of a Plant Variety Protection Rights Application
Article 33
Article 34
Article 35
Part Four Application For Appeal
Article 36
Article 37
When the period of appeal as stipulated in Article 36 paragraph (2) has lapsed without an application for appeal, an applicant is deemed to have accepted the PVP rights application rejection and the decision shall be recorded in the PVP Public Register.
Article 38
Article 39
Provisions for the PVP Appeal Commission’s organizational structure, its administrative system, procedure for application and investigation of appeal and its decisions shall be further regulated by the Government.
CHAPTER V TRANSFER OF PLANT VARIETY PROTECTION RIGHTS
Part One Transfer of Plant Variety Protection Rights
Article 40
Article 41
A PVP rights transfer does not extinguish the rights of the breeder to add his name and other identification in the PVP rights certificate and his rights to compensation.
Part Two License
Article 42
Article 43
Part Three Compulsory Licence
Article 44
Article 45
A Compulsory Licence is a license provided by the State Court after having heard confirmation from the relevant PVP rights owner and is non-exclusive.
Article 46
a. | The applicant is able to provide convincing proof that he has the capability and capacity to exercise the PVP rights and has exhausted all other means to obtain a license from the PVP rights owner based on reasonable conditions but has failed. |
b. | The State Court is of the opinion that the PVP rights may be exercised in Indonesia and will be beneficial to the general public. |
Article 47
Based on evidence and opinion as stipulated in Article 46 paragraph (1) and paragraph (2), the State Court is of the opinion that the PVP rights owner has not had adequate time to exercise his rights commercially in Indonesia, the Court shall temporarily postpone the proceedings or completely reject the application.
Article 48
Article 49
The decision of the State Court to issue the Compulsory Licence shall include the following matters:
e. | The expiry terms of the Compulsory Licence and the factors that can lead to its cancellation; | |
---|---|---|
f. | The Compulsory Licence is only used to meet the local market needs; | |
g. | Other matters that need to be considered to fairly protect the interests of the parties concerned. | |
Article 50 | ||
(1) | The Compulsory Licence holder shall have the Compulsory License registered at the PVP Office and the PVP Public Register. | |
(2) | A Compulsory Licence that is registered shall be promptly announced by the PVP Office in the PVP Official Bulletin. | |
(3) | A Compulsory Licence may only be implemented after it has been registered in the PVP Public Register and the royalty payable has been paid | |
(4) | The implementation of the Compulsory Licence is deemed to be implementation of the PVP rights. | |
Article 51 | ||
(1) | The State Court may cancel the Compulsory Licence at the request of the PVP rights holder when: | |
a. | The grounds for issuing the Compulsory Licence are no longer valid; | |
b. | The recipient of the Compulsory Licence did not implement the Compulsory License or did not promptly take the necessary measures to implement it; | |
c. | The Compulsory Licence holder no longer abides by the terms and conditions, including the obligation to pay royalties. | |
(2) | The State Court shall hold a hearing to investigate the application for cancellation of the Compulsory Licence and hear the opinions of the officers of the PVP Office. | |
(3) | In the event that the State Court decides to cancel the Compulsory Licence, no later than 14 (fourteen) days from the date of the decision, the Court shall forward a copy of the decision to the PVP Office for it to be recorded in the PVP Public Register and announced in the PVP Official Bulletin. |
(4) The PVP Office shall after recording and making the announcement as stipulated in paragraph (3), inform the PVP rights holder, the holder of the Compulsory Licence that has been cancelled and the State Court that made the decision to cancel, no later than 14 (fourteen) days from the date that the PVP office receives a copy of the decision of the State Court.
Article 52
Article 53
The termination or expiry of the Compulsory Licence as stipulated in Article 51 and Article 52 is deemed to restore the rights of the PVP rights owner.
Article 54
Article 55
Provisions relating to the Compulsory Licence shall be further regulated by the Government.
CHAPTER VI EXPIRATION OF PLANT VARIETY PROTECTION RIGHTS
Part One
General
Article 56
A PVP right expires when:
Part Two Expiration of Plant Variety Protection Rights
Article 57
Part Three Cancellation of Plant Variety Protection Rights
Article 58
Article 59
Part Four Revocation of the Plant Variety Protection Rights
Article 60
Article 61 Article 62
In the event that a PVP right is revoked as stipulated in Article 60, and the PVP rights holder has given a license or a Compulsory Licence to another party whereby the new party has paid all royalties to the PVP rights owner, the said rights owner shall return the royalties after taking into account the remaining time left for the utilization of the license or Compulsory Licence.
Article 63
CHAPTER VIII THE MANAGEMENT OF PLANT VARIETY PROTECTION
Article 64
Article 65
Article 66
Article 67
Article 68
Article 69
The right to submit a claim provided for in this CHAPTER does not derogate from the right of the State to execute criminal charges for the violation of the PVP rights.
Article 70
Indonesia in accordance with Article 107 Law No. 8, of 1981 concerning Laws of
Criminal Procedure.
Article 71
Anyone found to have deliberately committed an offence as stipulated in Article 6 paragraph (3) without the consent of a PVP rights owner, is subject to maximum imprisonment of seven years and a maximum fine of up to Rp 2.500.000.000,00 (2.5 Billion Rupiah).
Article 72
Anyone deliberately not complying with the provisions referred to in Article 13 paragraph (1) and Article 23, is subject to a maximum imprisonment of five years and a maximum fine of up to Rp 1.000.000.000,00 (One Billion Rupiah).
Article 73
Anyone found to have deliberately violated the provisions referred to in Article 10 paragraph (1) for commercial purposes, is subject to a maximum imprisonment of 5 years and a maximum fine of up to Rp. 1.000.000.000,00 (One Billion Rupiah).
Article 74
Anyone deliberately not fulfilling the obligations as stipulated in Article 30 Paragraph (3), is subject to a maximum imprisonment of five years and a maximum fine of up to Rp 1,000,000,000.00 (One Billion Rupiah).
Article 75
Criminal actions as indicated in this CHAPTER refer to criminal felonies.
Article 76
These laws take effect from the date of enactment.
To be publicly known, it is instructed to promulgate the law and publish it in the Government Gazette of the Republic of Indonesia.
Ratified in Jakarta On 20th December 2000 PRESIDENT OF REPUBLIC OF INDONESIA,
Signed ABDURRAHMAN WAHID
Enacted in Jakarta on 20th December 2000 STATE SECRETARY REPUBLIC OF INDONESIA
Signed DJOHAN EFFENDI
GOVERNMENT GAZETTE OF THE REPUBLIC OF INDONESIA OF 2000 NUMBER 241
ON
ON
I. GENERAL
Indonesia is a country with various biological resources that are highly diversified and is often touted as a country that enjoys “mega-biodiversity”. These biological diversity are indeed God’s gift to the people of Indonesia, are germplasmic resources that may be benefited in creating new and distinct crop varieties can further boost the country’s economical development, not only for the agricultural sector but also for the entire development of the nation as a whole.
With globalization, the relationship between national and international economies becomes greater. Economic globalization leads the local products to new and competitive international markets and also allows foreign products to flow into the domestic markets. The dynamics of both the national and global economies must always be given significant consideration. The global economic development has instant impact on the national economy, and this includes various agricultural activities, from pre-production activities, cultivation, harvesting, post harvest, distribution and trading. The effectiveness of agricultural development had often been and always will be determined by the superiority of the variety that is cultivated, and one that has certain harvest potential. The productivity of a variety is greatly influenced by the ability to genetically improve on the potentials of a particular variety. Any activity that is able to produce a high yielding variety needs to be supported by providing incentives to the individual or parties involved so that they in turn can afford to produce something of greater value to the general consumer.
In order to meet the national aspirations and in anticipation of any changes in the international strategic environment, the agricultural sector must work towards increasing the competitive ability of the crops. This is important not only for the exportable crops but also the commodities that are meant to meet domestic needs. Some means of increasing competitive ability is by increasing productivity, the quality of the product, and by developing a solid agri-business system. The increase in productivity and quality is influenced to a large extent by development in innovations, especially in the area of genetically improving a crop variety. Therefore, any individual or party involved in crop planting and who are able to produce variety that are new, distinct, homogeneous and stable should be given due recognition.
One of the ways to show them appreciation is to provide legal protection on the intellectual properties they display in producing these crop varieties. This includes giving them the economic benefits and other rights as a cultivator. Protections such as these will be able to boost their enthusiasm and creativity in agriculture to the point where they are able to yield newfound varieties that are much needed by the people. In essence, these legal protections also becomes an approach that Indonesia needs to take in order to meet the needs of the United Nations Convention on Biological Diversity, International Convention for the Protection of New Varieties of Plants, and the World Trade Organization/Trade Related Aspects of Intellectual Property Rights which among others compels member nations like Indonesia to enforce legal regulations in the area of Rights of Intellectual Property including Plant Variety Protection.
This protection of crop variety is also enforced because it motivates and gives the opportunity to the business world to increase the role of those in the agricultural industry to further improve. This becomes even more significant considering that presently the yielding of new varieties is mostly done by Government Agencies. Hopefully, the business world will continue to play a bigger role until more new and high yielding varieties may be produced.
However, new varieties which are illegal, against the social order, ethics, religious norms, conservation of the living environment and health are not eligible for protection. These protections are also not meant to shut any opportunity for small time farmers from benefiting from a new variety, and permanently protects local varieties for the benefit of the society. Consistent with the national development objectives, the development of agri-business system must be directed to support the potential of the people by making use of the rich biological diversity through the development of knowledge and technology in creating new and distinct varieties for the benefit of the farmers and the society as a whole. Considering that there have never been any laws that comprehensively regulates and provide protection towards the effort to produce and develop new varieties, the laws on PVP becomes increasingly important. These laws can hopefully become the basic legislation towards the development of new and distinct varieties and the development of the seedling industry. These laws are based on basic principles that balance the interest of the general public and the PVP rights holder.
The scope of these regulations covers the issuance of rights to plant breeders of plant varieties that are produced and have new, distinct, stable, uniform and may be named. To obtain PVP rights, plant breeders or an authorized party must submit the PVP rights application and fulfill all the terms and conditions outlined in this law to the PVP office. PVP rights is issued to the applicant for a period of 20 (twenty years) for perennial crops or 25 (twenty-five) years for annual crops after being given a PVP rights certificate. To obtain PVP rights certificate, an application must be registered, inspected, announced and then recorded by the PVP office. These rights may be self implemented and/or transferred to another party to take advantage of the plant variety commercially through an agreement.
Rights that are regulated within these laws include, among others, to produce or reproduce seeds, to prepare for propagation, to sell or trade, to import and export. Plant breeders or other parties that are issued PVP rights must implement them in Indonesia.
In the event that PVP rights are not implemented without any valid and legal reasons, the PVP rights holder may be demanded to provide a Compulsory Licence to another party that fulfills the requirements through the State Court. A PVP right expires due to time lapse, a cancellation or withdrawal due to renewal conditions that are not fulfilled, or the stability and homogeneity that are outlined in the laws are not fulfilled, or when the PVP rights holder submits an application in writing to withdraw the PVP rights. A party disadvantageously affected by the issuance of the PVP rights may demand for a cancellation through the State Court. These laws are structured based on faith and piety to God Almighty, scientific facts, benefits, competitiveness, functional continuity and quality of the environment, and the conservation of the society and its civilization. Other operational matters may be further regulated in an implementation that may be easily determined, changed and withdrawn consistent with the rapid development of knowledge and technology, national awareness and other global agreements.
1-17 Self Explanatory
Paragraph (1) In general, the definition of varieties is the same definition used in the Law No. 12 of 1992 on Crop Cultivation System. In addition, it includes explanation on genetic attributes or genotype combination as a basic characteristic that can distinguish one variety from another. Genotype means the genetic composition that produces a particular characteristic. Assessment is done on one or several characteristics or the entire characteristic of the relevant plant variety. A variety that does not experience changes when reproduced is considered as a stable variety where seed multiplication process or propagation with certain methods, for example seedling hybrid production, network culture and grafting will still leave the variety stable. Varieties from plant species that qualify to be issued with PVP rights include all types of plants, whether they reproduce generatively or vegetatively except bacteria, bacteriods, microplasma, virus, viroid and bacteriofag. Generative reproduction refers to plant reproduction through the cross breeding of reproductive cells while vegetative reproduction refers to plant production that is not done through cross breeding reproductive cells.
Paragraph (2) Self explanatory
Paragraph (3) Self explanatory
Paragraph (4) Self explanatory
Paragraph (5) Multiplication cycles in this paragraph refers to the multiplication cycle of the hybrid plants or multiplication pattern through network culture and grafting from the leaves / stem.
Paragraph (6) The objective of giving a denomination to a variety is to give it an identity based on the characteristics of the particular variety and shall last for as long as the variety remains in existence.
A variety which does not conform to the prevailing laws, or the usual norms of general public order, health, ethics, and the environment, for example the production of psychotropic plants, or those that conflict with the religious principles for instance using genes from animal sources which are against the norms of particular religions.
Paragraph (1) Plants whose production period exceeds one year refers to trees and vines, whereas other plants are referred as seasonal plants.
Paragraph (2) Self-explanatory
Paragraph (3) Temporary protection refers to protection that is granted from the submission of a complete application to the presentation of a PVP Certificate. Throughout this temporary protection period, the applicant has the right to receive protection over the use of a particular variety.
Paragraph (1) A breeder, in his plant breeding activities, may work alone or in a group, whether via commission or contractual agreement with any individual or legal body. As the person who develops a particular variety, a breeder has the rights that are attached to the said variety and this includes the right to have his name incorporated or to receive payment. The party that receives further PVP rights from the previous PVP rights holder may be an individual or legal body that receives a transfer from the former PVP rights holder. PVP rights holder does not enjoy the rights that are attached to a breeder that is to incorporate his name and the right to payment.
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) As with other fields of intellectual property rights, the right to PVP is a specific right. Based on this right, a PVP rights owner may use a variety that has been given PVP rights and prevent others who without his consent use that variety for their own commercial benefit.
In essence, the distinctness of a particular variety is yielded through the multiplication of seeds. However, with certain technique the product of the harvested crop in the form of vegetative parts could also be used as propagation materials. Therefore, PVP rights must be made effective not only for seed utilization but also for the usage of harvested products for propagation purposes.
Paragraph (2) A PVP right on a variety is also effective against the use of the original variety to create an essentially derived variety, a variety that cannot be distinguished or the repeated use of the protected variety to create new varieties.
This provision ensures that payment will be made for the use of the protected variety in the production of a new variety through genetic engineering techniques. This provision also protects the usage of the protected variety under another denomination, or by being repeatedly used in producing other varieties such as propagation beds for the creation of hybrids.
Paragraph (3)
sub-paragraph (a) Seed multiplication is the production of seed; seeds exist in various forms like seedling, stem, bud, trunk and seed network culture.
sub-paragraph (b) Preparation for propagation purposes emphasizes processes and techniques of propagation like preparation of buds, seed network culture and others.
sub-paragraphs (c) - (h) Self-explanatory Paragraph (4)
Protection of harvested products used for propagation must be given to ensure that the part of the harvested product is not used for seed multiplication. For example, a section from a cut flower that is traded is developed into a seedling through culture methods is still covered by PVP protection.
Paragraph (5)
sub-paragraph (a) Modern biotechnological development like genetic engineering has led to cultivation activities that produce new varieties through the technique of transferring genes which have specific genetic expressions, with a high degree of certainty. Genetic engineering can produce new varieties that maintain the basic salient features of the original variety with the exception of one or two traits, generally enhancing the distinctness of the variety. This new variety is eligible for PVP rights but the consent from the owner of the original variety that is used must be obtained. This is to ensure that the PVP rights holder or the owner of the denomination of the original variety continues to enjoy protection and his economic rights from the essentially derived variety.
sub-paragraph (b) These varieties refer to varieties that are produced from an original variety or those that are not from the original variety, and maintains most of the essential traits from the original variety but may still be clearly distinguished from the original variety with specific traits that are emerge from the process of its own derivation.
sub-paragraph (c) Self-explanatory
Paragraph (6) An original variety is a variety that is used as the stock in the process of producing an essentially derived variety. This variety includes both that have and have not been issued with PVP rights but have been given a denomination and registered by the Government
Paragraph (7) Self-explanatory
Paragraph (1) Local varieties refer to varieties that are already in existence and have been cultivated by farmers for generations and have become communal property.
Paragraph (2) The meaning of implementation of control over a local variety by the Government includes regulations on right to payment and the use of the said variety in relation to PVP and other genetic resources conservation efforts.
Paragraph (3) In relation to giving a denomination for a local variety that has specific localised traits, consideration must be given to factors such as the description, origin and location.
Paragraph (1) Self-explanatory
Paragraph (2) It is the right of a breeder to receive payment as the developer of a particular variety, and this shall be outlined and specified clearly in a written agreement.
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Certain varieties, due to technical or economic reasons at a given point of time, may face certain constraints from being developed in Indonesia.
Paragraph (3) Self-explanatory
Paragraph (1)
sub-paragraph (a) Not for commercial purposes as referred to in this sub-paragraph, are the individual activities particularly those of small farmers for their own needs and does not include activities that are extended to meet the needs of the larger community. This must be stressed so that the market segment for the said variety that has been issued PVP and the interest of the PVP rights holder continues to be protected.
sub-paragraph (b) Breeders are given the freedom to use the protected varieties for cultivation activities as stock for cross breeding as long as they are not used as original varieties as stipulated in Article 6 Paragraph (5).
sub-paragraph (c) This provision is to accommodate the possibility of being faced with unsafe food and health threats. The use by the Government is one way of overcoming these possible threats. However, the implementation has to take into account the interest of the breeder or the PVP rights holder and therefore, this decision has to be cast in the form of a Presidential Decree.
Paragraph (2)
The Government regulations shall stipulate among others the grounds and procedure for the decision as well as the determining factors.
Paragraph (1) With respect to PVP rights applications from outside the territory of the Republic of Indonesia, either for a first time application or those with priority rights, if there are sections of the application document that due to the technicalities used will be difficult to translate, these sections therefore need not be translated.
Paragraph (2)
sub-paragraph (a) Self-explanatory
sub-paragraph (b) Self-explanatory
sub-paragraph (c) Self-explanatory
sub-paragraph (d) Self-explanatory
sub-paragraph (e) Morphology traits, refer to, among others, traits of the plant that are clearly distinguished whether in its form, size, and colours of the different parts of the part.
sub-paragraph (f) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Transgenic varieties are varieties that are produced through genetic engineering techniques. Safety in this paragraph refers to a condition that is safe for the environment including the biological resources and human health. Considering that in its production process, transgenic varieties may make use of matter or parts of matter from organisms that in its original form may pose some environmental risks, including biological resources and human health, the potential dangers of these transgenic varieties must first be studied by an authorized agency before these varieties are widely used by the general public. The results of this study must be included in the dossier of PVP rights application for a particular transgenic variety.
Paragraph (5)
Further provisions that are regulated by the Government include the format and procedure of the application, its component and the amount of the processing fees, a sample of the letter of authorization, and the format for letter of declaration of safety for the transgenic variety.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
sub-paragraph (d) A consultant is an individual or a designated agency that provides related services concerning PVP rights application submissions. The purpose of this regulation is to provide the breeder or PVP rights holder with assistance in understanding the legal or technical administrative aspects of PVP.
Paragraph (3) For PVP rights applicants from outside the territory of Republic of Indonesia, applications are done through the PVP consultant in Indonesia. This requirement is to accommodate an applicant that does not have any official legal representative in Indonesia. Another reason for this requirement is to ensure the effective handling of the PVP rights application submission in accordance with the provisions stipulated in these laws. Apart from providing convenience to the breeder, this requirement also ensures the smooth handling by the PVP office.
Paragraph (1)
sub-paragraph (a) The work of the PVP consultant requires knowledge, attitude and specific skills to ensure that the PVP rights application process and other further measures may be carried out effectively, adhering to the provisions of the law and without causing any losses to the PVP rights applicant.
sub-paragraph (b) The PVP consultant, including those under their employment, for instance, the translator and others, shall be responsible to maintain confidentiality. This responsibility ends the moment the PVP rights application is announced by the PVP office.
Paragraph (2) Regulations that are stipulated by the Government include administrative conditions, office facilities, knowledge criteria and sufficient dedicated staff with technical competency. The function and capability of the PVP consultant shall be assessed periodically.
Paragraph (1) sub-paragraph (a) Self-explanatory
sub-paragraph (b) The party that is authorized to endorse a copy of the first submission of the PVP rights application is the PVP office within the country in which the PVP rights application is first submitted.
sub-paragraph (c) Self-explanatory
sub-paragraph (d) Self-explanatory
Paragraph (2) Further provisions stipulated by the Government include technical, financial and administrative terms and conditions that must be fulfilled.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Details recorded in the PVP Public Register include: application, inspection, issuance of rights, rejection of rights, transfer of rights, change of rights, license, Compulsory Licence, lapse of duration of time, cancellation, and revocation together with the exact date and time of the receipt of the said application letters.
Paragraph (1) Self-explanatory
Paragraph (2)
Reasons that may be considered are only limited to technical matters, for example the inability to complete the analysis or the description of the plant variety and the supporting pictures.
Self-explanatory
Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) What is meant by simultaneously received as referred to in this paragraph is receipt on the same date, month and year during the official working hours of the PVP office. With this requirement, a PVP application that is received at a different time but still within the official working hours of the same day is deemed to have the same time of receipt. In matter of carrying out the negotiation, the PVP office shall facilitate the negotiation.
Paragraph (3) Agreement between the parties submitting PVP rights application must be made known in writing to the PVP office within a specified time period. If this written notification is not received by the PVP office before the specified time period, the PVP office shall inform in writing the rejection of the said application.
Paragraph (4) This is consistent with the International Convention for the Protection of New Plant Varieties whereby the date deemed to be the submission date for a variety with priority rights is the date when the PVP rights application is first received abroad. A PVP right applicant from Indonesia who submits PVP rights application abroad is also given similar priority.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Provisions concerning the withdrawal of the PVP rights application that are stipulated by the Government covers technical, financial and administrative requirements.
Article 22 What is meant by a person who, due to his assignment, works for and on behalf of the PVP office is a person who works for an agency outside of the PVP office and is permanently assigned as a substantive inspector at the PVP office, except when the person is assigned on a non-permanent basis, then he may continue to submit PVP rights application.
Article 23 This responsibility is absolute and meant for the protection of the breeder or whoever has the right towards the variety. This responsibility takes effect as of the date the application is received and runs through until the announcement is made.
Paragraph (1)
An application is announced with the intention of informing the general public that there is a formal application for PVP rights for a particular variety. This would allow the public, particularly those with an interest to protect, an opportunity to examine whether there will be a violation of their rights or the rights of others should the PVP rights be awarded to the applicant. The announcement is made on a designated bulletin board at the PVP Office which is accessible to the public at large. The said announcement shall also be made in the PVP Official Bulletin, which shall be issued periodically by the PVP Office. It is made after the PVP office is of the opinion that all terms and conditions stipulated in Article 11 and Article 14 have been met and the application will not be withdrawn.
Paragraph (2) The deadline given for a PVP rights application with priority rights is longer due to the fact that the PVP office needs a considerable amount of time for the investigation process in an application with priority rights.
Paragraph (1) The period of six months provides the opportunity for the public, especially those who may have an interest to protect, to know that there is an application for PVP for a particular variety. This announcement is posted on the PVP office bulletin board and published in the PVP Official Bulletin.
sub-paragraph (a) Self-explanatory
sub-paragraph (b) The PVP Official Bulletin contains announcements of PVP applications, issuance, rejection, cancellation and revocation of rights including other pertinent information on PVP for the benefit of the public.
Paragraph (2) Self-explanatory
Self-explanatory
Self-explanatory
Paragraph (1) Comments or objections towards the application that has been announced, shall be submitted within a period of six months. Any submission beyond this time period will not be accepted. In this case, the PVP office will inform of the delay, in writing to the parties submitting the comments or objections.
Paragraph (2) Self-explanatory
Paragraph (3) The delivery of the objection by the breeder or the person submitting PVP rights is not restricted to this time period. These objections and clarifications shall be used as additional information to be considered by the PVP Inspector during the inspection period of the PVP application.
Paragraph (4) Self-explanatory
Paragraph (1) In the event that the PVP office does not receive an application for an inspection one month after the announcement period expires, the PVP application is deemed to have been withdrawn.
Paragraph (2) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) There is a possibility that the expertise needed for the inspection of a particular variety, is not within the control of the PVP Inspector. Similarly, the facilities required to carry out a proper inspection may be owned by another institution. In such instances, the PVP office may seek the assistance and/or make use of the facilities of another institution. However, this does not mean that the inspection is not done by the PVP office. The inspection is still conducted by the PVP office and the institution with the expertise and facilities is merely assisting the process. The final decision and responsibility towards the acceptance or rejection of a PVP rights application still rests with the PVP office.
Paragraph (3) In the event that the PVP office obtains the assistance of experts and/or makes use of the facilities of other institution, all parties involved in the inspection process are bound by the responsibility to maintain the confidentiality of the variety and all the documents relating to the PVP application including the clarification or the information submitted to complete the application.
Paragraph (4) Provisions to be the subject of further regulation by the government in relation to the inspection cover the substance, methodology and duration of inspection. Provisions relating to the qualification of the investigating personnel and office include the level and field of expertise.
A substantive inspection for a PVP application shall only be conducted by a PVP Inspector. A PVP Inspector refers to expert personnel specially trained and assigned to perform this task. The PVP Inspector is from within the PVP Office and may also come from another Government agency and is specially trained until fully qualified to act as a PVP Inspector. Due to its expertise and specialised scope of work, the PVP inspection department is given the status of a functional department.
Paragraph (2) Self-explanatory
Paragraph (1) Examples of ambiguity or incomplete information that are considered important are unclear genealogy, ambiguous, inappropriate description or pictures that are not supportive. In the event that these matters are considered mandatory for a better understanding, the PVP office will formally inform the applicant in writing.
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) In certain cases, and for the majority of the trees and vines, a substantive inspection for new, distinct, uniform and stable conditions can only be completed in a time period of more than 24 months. In which case, the PVP Office shall notify the applicant of the necessity for the extension of the inspection period. The notification to the applicant may be given when the application for the substantive inspection is received or after that, depending on when the need for the extension of the inspection period is known.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Provisions to be further stipulated by the government include the format and content of the PVP rights certificate, copies of the application formula or the collection and the recording procedures of the PVP document.
Paragraph (1)
An appeal cannot be filed in cases where a rejection occurs as a result of not forwarding the corrections or amendments to the claims made during a substantive inspection. Similarly, no appeal may be filed where a preliminary inspection carried out before an announcement is made leads to a withdrawal of the application.
Paragraph (2) No later than three months as of the date of the rejection of the PVP rights application, refers to the post-mark date on the said rejection letter.
Paragraph (3) Grounds, clarifications or evidences that accompany an appeal must be substantive and based on justification or proof that has or should be conveyed during the substantive inspection period. This is to avoid the possibility of abuse whereby an appeal is used merely as a tool to support deficiencies in the application.
Paragraph (4) A PVP Appeal Commission is a specially designated agency established to investigate the appeals into the rejection of PVP rights and to forward the outcome to the PVP office. This PVP Appeal Commission works on the basis of expertise and independence.
Paragraph (5) The PVP Appeal Commission comprises several experts in the necessary areas of expertise and one Senior PVP Inspector. With the exception of the head, all PVP Appeal Commission Members are appointed to the task each time there is an appeal and are responsible to conduct the investigation on the relevant appeals.
Paragraph (6) Self-explanatory
Article 37
Self-explanatory
Article 38
Paragraph (1) Self-explanatory
Paragraph (2) Any decision from the PVP Appeal Commission is deemed to be final and may not be further appealed to other institutions or departments because any assessment on a variety is very much technical in nature.
Paragraph (3) When an appeal is granted, the PVP office shall issue a PVP certificate.
Paragraph (4)
In the case where a motion of appeal is rejected, the party submitting the appeal must be notified. When the appeal is submitted by an authorized party, the rejection is then made known to the authorized party with a copy given to the authorizing party.
Provisions to be further stipulated by the Government include the following: organizational structure, working procedure, application and appeal investigation.
Paragraph (1) In general, a PVP right may be transferred from an individual PVP rights holder to another individual or legal body. What is meant by other reasons permissible by law is, for example the transfer of PVP rights through a court judgment.
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Provisions to be further regulated by the Government include terms of transfer, format of transfer application and its supporting documents, components and the fee for registering the transfer.
Self-explanatory
Paragraph (1) Unlike a PVP rights transfer where ownership rights are also transferred, a license agreement only provides for the right to enjoy the economic benefit from the PVP rights within a specified time period and with certain terms and conditions. The ownership of the PVP rights remains with the PVP rights holder and is not transferable to the license holder. Therefore, a license holder may not issue a license to another party. Since a PVP rights holder has the right to issue a license to a third party, a license agreement must clearly state any rights transferred to the third party for a reasonable period of time. When a PVP rights owner draws up a licence agreement with a third party, it is only confined to the rights that have not been already been licensed. The PVP rights owner shall inform all license holders of the issuance of new licences.
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Matters that will be further regulated by the government pertaining to the license agreement include the rights and obligation of the party issuing and receiving the license, sections of the PVP rights implementation that may be licensed, duration and format of the license agreement.
Paragraph (1) These stipulations are meant to enhance the use of PVP rights and to benefit the community. At the same time, it prevents the possibility of the PVP rights being exploited for illegal purposes. A license application for a Compulsory Licence shall be submitted to the State Court, and not the PVP office.
Paragraph (2) The term ‘not exercised’ refers to the 36 month time period from the time that a PVP rights is granted, on grounds that are not technical and/or force majeur (natural catastrophes, fire, uncontainable diseases, and policies of the Government). The non-utilization of the PVP rights results in the inability of the community to gain any benefit otherwise obtainable from the relevant variety.
The State Court has the authority to accept or reject a Compulsory Licence application after listening to a presentation by the PVP rights holder into matters relating to justification for not exercising the PVP rights and/or the validity of the grounds for issuing the Compulsory Licence. A non-exclusive Compulsory Licence refers to a PVP rights that may be licensed to more than one party based on the duration, type of activity or location.
Paragraph (1) These provisions are meant to ensure that the granting of a Compulsory Licence is not exploited for unhealthy competition, unless of real benefit to the public.
Paragraph (2)
The expert opinion from the PVP office and the comments of the PVP rights holder are essential for the State Court to consider and arrive at a decision in a fair and objective manner. The experts may come from the PVP office itself or other Government agencies or relevant parties, at the request of the PVP office.
A reasonable postponement may be needed to provide an opportunity for the PVP rights holder to show proof that he has actually exercised his PVP rights and demonstrate with clear evidence his activities and the results of the implementation of his PVP rights. When PVP rights holder is able to show proof of his activities and results of the implementation of his PVP rights, the State Court may then reject an application for a Compulsory Licence. However, if new evidence is found towards the end of the postponement period or if it appears that the PVP rights are not likely to be implemented commercially, the court may resume the proceedings and continue with an investigation on the Compulsory Licence application.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Other similar agreements are agreements that are typically done in other Intellectual Property Rights license agreements.
What is meant by “other matters needed to protect fairly the interest of other parties” refers to facts that are revealed during the proceedings.
Article 50
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (4) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Self-explanatory
Paragraph (1) In principle, a Compulsory Licence cannot be transferred because it is given only under special circumstances and is confined to specific terms and conditions in the course of its implementation. However, exception is made for successors in title, when the person who had obtained the Compulsory Licence dies. Meanwhile for a legal body, this exception is not applicable.
] Paragraph (2) Self-explanatory
The basis of the governing laws covers the implementation criteria, the ability to fully utilize the PVP rights, complete equipment and facilities and the technical and financial capabilities of the applicant to utilize PVP rights that originates from a Compulsory Licence.
Article 56
Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3)
This provision is meant to prevent the cancellation of a PVP right arbitrarily by the PVP
office.
Paragraph (1) A third party who considers he loses out as a result of a decision to cancel a PVP right may submit his objections and claims to the State Court.
Paragraph (2) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Article 62
Self-explanatory
Paragraph (1)
A license holder includes a Compulsory Licence holder.
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1)
A PVP office is managed by professionals, working in collaboration with other experts
and/or local or foreign institutions.
Paragraph (2) Self-explanatory
Paragraph (3)
The administration, documentation, inspection, and PVP information service is
implemented through a PVP documentation and information network system.
Paragraph (1) Self-explanatory
Paragraph (2)
The PVP management shall constantly be updated on the latest developments in
knowledge, technology and socio-economic issues of the society.
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Self-explanatory
Paragraph (3) Self-explanatory
Paragraph (1) Self-explanatory
Paragraph (2) Bona fide owner of products are those whose products originated from a transaction with a PVP rights holder whose PVP rights was later proved to have been obtained through a violation of PVP rights.
This provision is to emphasize that PVP rights have a great impact on the economical and political social order.
Paragraph (1) The authority given to the officers of the state civil office does not impinge the authority of the Republic of Indonesia National Police to investigate any PVP criminal acts. In carrying out the given authority, the state civil office shall work under the coordination and supervision of the office of the Investigating Officer from the Republic of Indonesia National Police.
Paragraph (2) Self-explanatory
Paragraph (3) In the interest of the investigation, the Republic of Indonesia National Police investigation department may or may not be required to provide guidance and assistance to the State Civil Investigation office as stated in paragraph (1). What is meant by guidance includes investigation techniques and tactics, whereas assistance with investigation covers arresting, restraining or laboratory examination. Therefore, the State Civil Investigation office shall notify early the Republic of Indonesia National Police of the said investigation. The outcome of the investigation in the form of the confiscated materials and evidence shall be handed overt to the Public Prosecutor through the Republic of Indonesia National Police.
Article 71
Self-explanatory
Article 72
Self-explanatory
Self-explanatory
Self-explanatory
Self-explanatory
Self-explanatory
SUPPLEMENT TO THE GOVERNMENT GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 4043