WIPO Lex

Chapter: 490 PLANT VARIETIES PROTECTION ORDINANCE

Chapter:	490	PLANT VARIETIES PROTECTION ORDINANCE	Gazette Number	Version Date

		Long title	L.N. 492 of 1997	24/10/1997

An Ordinance to provide for the protection of plant varieties.

[24 October 1997] L.N. 492 of 1997

(Originally 21 of 1996)

Section:	1	Short title	L.N. 492 of 1997	24/10/1997

PART I

PRELIMINARY

(1) This Ordinance may be cited as the Plant Varieties Protection Ordinance.

(2) (Omitted as spent)

Section:	2	Interpretation	L.N. 492 of 1997	24/10/1997

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

In this Ordinance, unless the context otherwise requires

"applicant" (申請人), in relation to any application, means the person by whom or on whose behalf that application is made;

"application" (申請) means-

(a) an application for a grant; and

(b) an application for a declaration under section 31(1)(b); "court" (法院) means the Court of First Instance; (Amended 25 of 1998 s. 2) "denomination" (名目), in relation to any protected variety, or any variety that was a protected variety until the grant

made in respect of it expired, means the distinguishing name or identification approved for that variety by the Registrar under section 18(2)(a); "grant" (授權證) means a grant of plant variety rights under this Ordinance; "grantee" (承授人) means the holder of a grant and, in relation to a protected variety, means the holder of a grant in respect of that variety; "owner" (擁有人), in relation to any variety, means

(a) a person who bred or discovered and developed that variety;

(b) an agent of that person;

(a) any multicellular vascular organism with a root system;

(b) any algae;

(c) any fungi; "prescribed" (訂明) means prescribed or provided for by regulations made under section 42; "protected variety" (受保護品種) means a variety in respect of which a grant is in force; "publication" (公布) means public notification, and includes public notification in the Gazette; "register" (註冊紀錄冊) means the Register of Plant Variety Rights maintained under section 8(1); "Registrar" (處長) means the Registrar of Plant Variety Rights; "reproductive material" (生殖材料), in relation to any variety, means any portion of a plant of that variety by means

of which plants of that variety may be reproduced or propagated; and means spores and seeds;

"sale" (售賣) includes any disposition for valuable consideration and any offer for sale, and "sell" and "sold" (出售) have corresponding meanings;

"term" (有效期) means the period that a grant is in force under section 22;

"UPOV country" (聯盟成員國) means a country that is a member State of the International Union for the Protection of New Varieties of Plants, constituted pursuant to the international agreement called the International Convention for the Protection of New Varieties of Plants;

"variety" (品種) means a cultivar of a plant to which this Ordinance, by virtue of section 4 and the Schedule, applies, and means any clone, hybrid, stock, or line, of such a plant, but does not mean a botanical variety of such a plant.

Section:	3	Application*	2 of 2009	08/05/2009

This Ordinance applies to the Government and the Offices set up by the Central People’s Government in the Hong Kong Special Administrative Region. (Amended 2 of 2009 s. 4)

Note:

* (Replaced 2 of 2009 s. 4)

Section:	4	Plants to which Ordinance applies*	2 of 2009	08/05/2009

Remarks: For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.

(1) This Ordinance applies to the plants listed in the Schedule.

(2) The Secretary for Food and Health may, by notice in the Gazette, amend the Schedule. (Amended 78 of 1999 s. 7; L.N. 106 of 2002; L.N. 130 of 2007)

Note:

* (Replaced 2 of 2009 s. 5)

Section:	5	Registrar of Plant Variety Rights	L.N. 331 of 1999	01/01/2000

PART II

REGISTRAR OF PLANT VARIETY RIGHTS AND REGISTER

(1) The Director of Agriculture, Fisheries and Conservation shall be the Registrar of Plant Variety Rights for the purposes of this Ordinance. (Amended L.N. 331 of 1999); (1) The Registrar shall not be taken to warrant the correctness or validity of the registration of a plant variety right under this Ordinance or under any international agreement, or convention, which has been applied to Hong Kong.
(2): The Registrar is not subject to any liability by reason only of the fact of any examination required or authorized by this Ordinance, or any such international agreement or convention, or any report or other proceedings consequent on such examination.
(1): Any person having a sufficient interest may apply to the Registrar for the rectification of an error or omission in the register.
(2): Except where the Registrar directs otherwise, the effect of rectification of the register is that the error or omission in question shall be deemed never to have been made.
(3): The Registrar may, on request made in the prescribed manner by the grantee of a registered plant variety right, enter any change in his name or address as recorded in the register.

Section:	6	Appeals against decisions of the Registrar	L.N. 492 of 1997	24/10/1997

Section:	7	Registrar not liable in respect of official acts	L.N. 492 of 1997	24/10/1997

Cap 490 - PLANT VARIETIES PROTECTION ORDINANCE

Section:	8	Register to be maintained	L.N. 492 of 1997	24/10/1997

Section:	9	Rectification of the register	L.N. 492 of 1997	24/10/1997

(4) The Registrar may remove from the register matter appearing to him to have ceased to have effect.

Section:	10	Registration to be prima facie evidence of validity	L.N. 492 of 1997	24/10/1997

In any proceedings before the court relating to a registered plant variety right, the registration of a person as grantee of a plant variety right shall be prima facie evidence of the validity of the original registration and of any subsequent assignment or other transmission of it.

Section:	11	Certificate of validity of contested registration	L.N. 492 of 1997	24/10/1997

(b): the grantee obtains a final order or judgment in his favour, he is entitled to his costs as between solicitor and client unless the court directs otherwise.

(3) Subsection (2) does not extend to the costs of an appeal in any such proceedings.

Section:	12	Burden of proving use of plant variety right	L.N. 492 of 1997	24/10/1997

If in any proceedings before the court to which a grantee or a person authorized by licence or otherwise under section 25(1) is a party of a question arises as to the use to which a registered plant variety right has been put, it is for the grantee or that person to show what use has been made of it.

Cap 490 - PLANT VARIETIES PROTECTION ORDINANCE

PART III

GRANT OF PLANT VARIETY RIGHTS

(1): Every application shall be in such manner and form as the Registrar may require and shall

(2): Within the prescribed period after making an application, the applicant shall give to the Registrar-

(4): An application that complies with subsection (1) at the time it is received at the office of the Registrar shall, for the purposes of this Ordinance, be deemed to be made at that time.
(7): The Registrar shall notify in the Gazette every proposed denomination for a variety given to the Registrar by any applicant that, in the opinion of the Registrar, complies with the prescribed requirements.
(1): Any person who considers that the Registrar should not approve a proposed denomination notified in the Gazette may, within 3 months of its notification in the Gazette under section 13(6)(a), by notice in writing to the Registrar, object to the approval of that denomination.
(2): Any person who considers that an application has been made by or on behalf of an applicant who is not an owner of the variety concerned may, at any time before a grant is made to the applicant in respect of that variety, by notice in writing to the Registrar, object to the making of a grant in respect of that variety to the applicant.
(3): Any person who considers that an application has been made in respect of a variety that is not new, distinct, stable, and homogeneous, as required by section 18(2)(d) may, at any time before a grant is made in respect of that variety, by notice in writing to the Registrar, object to the making of a grant in respect of that variety.
(2): The withdrawal of an application shall not affect the liability of the application for any fees that may have become payable up to the date of that withdrawal.

Section:	15	Withdrawal or lapse of applications	L.N. 492 of 1997	24/10/1997

Section:	16	Inspection of applications	L.N. 492 of 1997	24/10/1997

Section:	17	Provisional protection	L.N. 492 of 1997	24/10/1997

Section:	18	Making of grants	L.N. 492 of 1997	24/10/1997

is homogeneous, the Registrar shall have regard to the particular features of its propagation or reproduction, whichever is applicable to it.

(b): reproductive material disposed of for purposes other than reproduction, that, having been produced during the breeding, increase of stock, tests, or trials, of that variety, is not or no longer required for any of those activities.
(b): maintain such stock of reproductive material, in relation to that variety as may be prescribed.

Subject to section 20, where-

(a): before a grant is made in respect of a variety, 2 or more applications in respect of that variety have been made;
(b): the Registrar is satisfied that the 2 or more applicants concerned are persons who, or successors of persons who, bred or discovered and developed that variety independently; and
(c): the Registrar is satisfied that, but for this section, each of those 2 or more applicants is or would be

entitled to a grant in respect of that variety, the Registrar shall make a grant to that 1 of those 2 or more applicants whose application in respect of that variety was made first.

Where

(a): any person makes an application for a grant in Hong Kong in respect of a variety in respect of which that person has earlier in a UPOV country made an equivalent application under the law of that country that has been accepted; and
(b): that application for a grant in Hong Kong is made not more than 12 months after that equivalent application or, if more than 1 equivalent application has been made, whether in 1 or in several countries, the earliest of them, was made; and
(c): a claim for priority in relation to that equivalent application accompanies the application for a grant in Hong Kong; and
(d): within 3 months of the making of that application for a grant in Hong Kong, a copy of any documents constituting that equivalent application, certified as correct by the authority to which it was made, is submitted to the Registrar,

sections 18(4)(b) and 19 shall apply to that application for a grant in Hong Kong as if it had been made when that equivalent application was accepted.

Section:	21	Cancellation of grants because of earlier applications	L.N. 492 of 1997	24/10/1997

Where

(a): after a grant is made to any person in respect of a variety, another person makes an application in respect of that variety;
(b): the Registrar is satisfied that, if that grant had not already been made, that other person would, by

virtue of section 20, be entitled to a grant in respect of that application, the Registrar shall cancel that grant, and shall make a new grant to the person who would be entitled to it as if the cancelled grant had never been made.

Section:	22	Duration of grant	L.N. 492 of 1997	24/10/1997

(1) The Registrar shall endorse every grant with the date of its making.

(1): Any person who considers that a grant has been made in respect of a variety that is not new, distinct, stable, and homogeneous as required by section 18 may at any time, by notice in writing to the Registrar, object to the continuation in force of that grant.
(2): Any person who considers that a grant was made to a person who was not an owner of that variety may, by notice in writing to the Registrar, object to the continuation in force of that grant.

Section:	23	Objections after grant	L.N. 492 of 1997	24/10/1997

Section:	24	Cancellation of grants	L.N. 492 of 1997	24/10/1997

intention to do so and, unless that grantee shows sufficient cause within 28 days of the date of the notice why that grant should not be cancelled, shall cancel that grant on the expiration of that period.

(4) Where

(a): the Registrar has cancelled a grant under subsection (2)(d); and
(b): any application, other than the application in respect of which that grant was made, has at any time,

whether before or after the making of that grant, been made in respect of the variety concerned, the Registrar shall deal with all applications in respect of that variety as if that grant had never been made.

(1) Subject to section 27, a grantee shall have the exclusive right-

(a): to produce for sale, and to offer for sale or sell, reproductive material of the variety concerned;
(b): to import or export reproductive material of the variety concerned;
(c): if that variety is a plant of a type prescribed for the purposes of this section, to propagate that variety for the purposes of the commercial production of fruit or flowers of that variety;
(d): subject to any terms and conditions that grantee may specify, to authorize, by licence or otherwise, any other person or persons to do any of the things described in paragraph (a), (b) or (c).

(b): without the authority of the grantee concerned, constitutes an infringement of the rights of that grantee under this section.

(4) The importation into Hong Kong

(a): from a country that is not a UPOV country of harvested material of a protected variety; or
(b): from a UPOV country of harvested material of a protected variety in respect of which, under the law of

that country, it is not possible to make the equivalent of a grant, without the consent of the grantee is an infringement of the grantee's rights under this Ordinance.

(5): The sale under the denomination of a protected variety of reproductive material of some other variety constitutes an infringement of the rights under this section of the grantee of that protected variety, unless the groups of plants to which those varieties belong are internationally recognized as being distinct for the purposes of denomination.
(6): Where, in any proceedings under this section for the infringement of the rights of a grantee, it is proved or admitted that an infringement was committed but proved by the defendant that, at the time of that infringement, the defendant was not aware and had no reasonable grounds for supposing that it was an infringement, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of that infringement, but shall be entitled instead to an account of profits in respect of that infringement.
(7): Nothing in subsection (6) affects any entitlement of a grantee to any relief in respect of the infringement of that grantee's rights under this Ordinance other than damages.

Notwithstanding section 25 it shall not be an infringement of the rights of a grantee for any person-

(a): to use reproductive material from a protected variety for human consumption or other non-reproductive purposes;
(c): engaged in farming activities for the purpose of safeguarding agricultural or horticultural production,

to use for reproductive purposes on his own holding, reproductive material from a protected variety where the type within which the protected variety is classified has been prescribed for the purposes of this section as exempt from the rights of a grantee and where such reproductive material-

(i): has been legitimately obtained by purchase or otherwise with the authority of the grantee concerned; or
(ii): having been so legitimately obtained has subsequently been propagated or grown on his own holding.

Section:	27	Rights under licence	L.N. 492 of 1997	24/10/1997

Where a person has been authorized by licence or otherwise under section 25(1)(d) that person so authorized shall have the same rights as that grantee to take proceedings in respect of any infringement of the rights of that grantee in respect of the variety concerned affecting the rights given under that licence and committed after it was granted.

Section:	28	Notice of protection	L.N. 492 of 1997	24/10/1997

(1) Any person who-

(a) has acquired rights in respect of a variety under section 17(1) or 25; and

(b): sells any reproductive material of that variety, shall take all reasonable steps, by means of suitable labelling or other identification of that material, to inform the purchaser concerned of those rights.
(2): In determining, for the purposes of section 25(6), whether or not any person had reasonable grounds for supposing that any action was an infringement of the rights of a grantee, a court may take into account the extent, if any, to which that grantee or, as the case requires, the licensee concerned had complied with subsection (1) in respect of any material in respect of which, or in respect of material propagated from which, that infringement occurred.
(1): Any person may at any time after the making of a grant, on payment of the prescribed fee request the Registrar to consider whether or not reasonable quantities of reproductive material of a reasonable quality of the variety concerned are available for purchase by members of the public at a reasonable price.

Section:	29	Use of reproductive material with permission of Registrar etc.	L.N. 492 of 1997	24/10/1997

(6) Any permission or order granted under subsection (2) shall have effect according to its tenor as if it were a contract voluntarily entered into by the grantee and the other person concerned.

(7) Subject to this Ordinance, the Registrar may at any time

(a) on the application of any person; and

(b): if the Registrar thinks it appropriate, limit, vary, extend, or revoke, any permission or order granted under subsection (2).
(8): As soon as is possible after granting any permission or order under subsection (2), or limiting, varying, extending, or revoking, any such permission or order, the Registrar shall notify in the Gazette brief details of the action taken.

Section:	30	Use of denomination	L.N. 492 of 1997	24/10/1997

Any person who sells reproductive material of-

(a) a protected variety; or

(b) a variety that was a protected variety until the grant made in respect of it expired, shall use its denomination, and shall not associate any trade mark, trade name, or other similar indication with that denomination unless that denomination is clearly recognizable.

Section:	31	Extension of grant of plant variety rights to cover essentially derived varieties	L.N. 492 of 1997	24/10/1997

(1) Where

(a): after a grant is made to any person in respect of a variety (the "initial variety") and is made to another person in respect of another variety; and
(b): the Registrar, on the application of the first-mentioned person, by notice in writing declares that the

other variety is an essentially derived variety from the initial variety, the rights granted in respect of the initial variety mentioned in section 25 (rights of grantees) shall apply, with effect from the date of the notice in writing, to that other variety.

(2): An application made under subsection (1) shall be accompanied by the prescribed application fee and treated as if it were an application made under section 13 (application for grant) and Part III (grant of plant variety rights) shall be read with such modifications as may be necessary to make the same applicable to the circumstances of an application made under subsection (1).

Section:	32	Rights of appeal	L.N. 492 of 1997	24/10/1997

PART IV

APPEALS

(1): Any person aggrieved by a decision of the Registrar made in respect of him to decline to make a grant under section 18 may, within 28 days after being given notice of that decision by the Registrar, appeal to the court against that decision.
(2): Any person aggrieved by the making of a grant may, at any time, appeal to the court against the making of that grant upon the ground that that grant was made in contravention of this Ordinance.
(d): refusing to grant any permission or order under section 29(2), may, within 28 days after being given notice of that decision by the Registrar, appeal to the court against that decision.
(5): The owner of a protected variety may, at any time, appeal to the court against any decision of the Registrar to grant any permission or order under section 29(2) in respect of that variety, or to extend or vary any such grant of permission or order.
(6): The person to whom any permission or order was granted under section 29(2) may, at any time, appeal to the court against any decision of the Registrar to limit, vary, or revoke that grant of permission or order, or to issue it subject to any terms or conditions.
(1): Notwithstanding any rule of law to the contrary, an appellant may begin and carry on an appeal in the court under this Part by a solicitor or in person.
(2): A person, being a body corporate, may begin and carry on an appeal in the court otherwise than by a solicitor by an officer or a director of the body corporate authorized in that behalf by a resolution of the board or committee of the body corporate.

Section:	33	Right to appeal in person	L.N. 492 of 1997	24/10/1997

Section:	34	Filing and notice of appeals	L.N. 492 of 1997	24/10/1997

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

(1) Every appeal to the court under section 32 shall be made by

(a): filing a notice of appeal in the prescribed form at the office of the Registrar of the High Court; and
(b): serving a copy of that notice of appeal on the Registrar.

(2): A court may appoint 1 or more adviser under subsection (1) in respect of a single appeal if satisfied that the nature of the technical or specialised matters concerned so warrants.
(3): No appointment of an adviser under subsection (1) shall, in any proceedings, be called into question on the grounds that the occasion for that appointment had not arisen or had ceased.

Section:	35	Advice to court as to technical or specialised matters	L.N. 492 of 1997	24/10/1997

(4) Every adviser appointed under subsection (1) is entitled to receive such-

(a): remuneration by way of fees or allowances, for his services as an adviser; and
(b): payment of travelling allowances or expenses in respect of time spent travelling in connection with

undertaking services, as may be prescribed and any such remuneration or payment shall be charged on the general revenue.

(5) Subject to subsection (6) a court, after hearing an appeal under section 32, may

(a): confirm the decision appealed against; or
(b): modify or reverse that decision or any part of it.

(6) Nothing in subsection (5) authorizes a court to review any decision of the Registrar, or any part of a decision of the Registrar, if no appeal has been made against that decision or part.

Section:	36	Procedure on appeal	L.N. 492 of 1997	24/10/1997

Expanded Cross Reference: 33, 34, 35

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

In dealing with an appeal under this Part-

(a): a court may hear all evidence tendered and representations made by or on behalf of any party to that appeal that that court considers relevant to that appeal, whether or not that evidence would be otherwise admissible in that court;
(b): subject to section 33 to 35 and to paragraph (a), the Rules of the High Court (Cap 4 sub. leg.) shall apply to that appeal; and <* Note - Exp. X-Ref.: Sections 33, 34, 35 *> (Amended 25 of 1998 s. 2)
(c): except as provided in this Part, a court shall determine its own procedure in relation to the determination of that appeal.

Section:	37	Suspension of decision while appeal pending	L.N. 492 of 1997	24/10/1997

Where any person has appealed against any decision of the Registrar, the operation of that decision shall be suspended until the appeal concerned has been finally disposed of.

Section:	38	Falsification of applications	L.N. 492 of 1997	24/10/1997

PART V

OFFENCES

(1): Any person who, in an application or in an attachment to an application, furnishes or supplies with intent to deceive any false or misleading information commits an offence.
(2): Any person who falsely represents that any person is the owner of a protected variety or that any person has applied for a grant in respect of any variety knowing or having reason to believe that the representation is false, commits an offence.

(3) Any person who commits an offence under this section is liable on conviction to a fine at level 6.

Section:	39	Falsely representing plant variety right as registered	L.N. 492 of 1997	24/10/1997

Any person

(a): who falsely represents that a plant variety right is a registered plant variety right;

variety in respect of which an application has been made, knowing or having reason to believe that the representation is false commits an offence and is liable on conviction to a fine at level 6.

Section:	40	Misuse of denomination on sale of reproductive material	L.N. 492 of 1997	24/10/1997

Any person who wilfully or negligently sells reproductive material otherwise than in compliance with the requirements of section 30 commits an offence and is liable on conviction to a fine at level 6.

Section:	41	Hours of business and business days	L.N. 492 of 1997	24/10/1997

PART VI

MISCELLANEOUS

(1): The Registrar may give directions in writing specifying the hours of business of his office for the purpose of the transaction by the public of business under this Ordinance and the days which are business days for that purpose.
(2): Business done on any day after the specified hours of business, or on a day which is not a business day, shall be deemed to have been done on the next business day; and where the time for doing anything under this Ordinance expires on a day which is not a business day, that time shall be extended to the next business day.

Section:	42	Regulations	L.N. 130 of 2007	01/07/2007

Remarks: For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.

(1) The Secretary for Food and Health may make regulations- (Amended 78 of 1999 s. 7; L.N. 106 of 2002;

L.N. 130 of 2007)

(a): for the purposes of this Ordinance authorizing the making of regulations with respect to any matter;
(b): for prescribing anything authorized or required by this Ordinance to be prescribed; and
(c): generally for regulating practice and procedure under this Ordinance.

(2) Without affecting the generality of subsection (1), regulations made under this section may make provision

(a): as to the manner of filing of applications and other documents and in respect of anything that is to accompany or be furnished together with any application;
(b): as to the procedure to be followed in connection with any application or request to the Registrar or in connection with any proceedings before the Registrar, and authorizing the rectification of irregularities of procedure;
(c): providing for the testing and treatment of plant varieties to which applications relate;
(d): requiring and regulating the translation of documents and the filing and authentication of any translation;
(e): as to the service of documents;
(f): prescribing time limits for anything required to be done under this Ordinance;
(g): providing for the extension of any time limit so prescribed, or specified by the Registrar, whether or not it has already expired;
(h): providing for the forfeiture of any priority given in respect of an application;
(i): prescribing a form for appeals under Part IV;
(j): authorizing the preparation, publication, sale, and exchange of copies of diagrams, photographs, and documents at the office of the Registrar, and of indexes to and abridgments to them;
(k): prescribing the mode of publishing any matters required by this Ordinance to be published;
(l): prescribing the requirements to be met in selecting the denomination of varieties, and providing for the approval, rejection, or amendment of any denomination by the Registrar;
(m): prescribing fees and charges for anything authorized by this Ordinance.

(3) No allowance, expense, fee or charge shall be prescribed under this section without the consent of the Financial Secretary.

[sections 2 & 4]

PLANTS TO WHICH ORDINANCE APPLIES

All plants other than-

(a): Inedible Algae;
(b): Inedible Fungi.

Hong Kong (Chine)

HK101

Plant Varieties Protection Ordinance (Chapter 490) (amended up to Ordinance No.2 of 2009)