ACT ON THE PROTECTION OF NEW VARIETIES OF PLANTS

영문법령 불러오는 중…

ACT ON THE PROTECTION OF NEW VARIETIES OF PLANTS — 법갈피

Article 4(Managers of plant variety protection for expatriates) #

(1) Unless by a person who has his or her address or business office in the Republic of Korea and is the agent (hereinafter referred to as "manager of plant variety protection") of another person who has no address or business office in Korea (hereinafter referred to as "expatriate") concerning plant variety protection, neither procedures for plant variety protection shall be taken at the Ministry of Agriculture, Food and Rural Affairs, the Ministry of Oceans and Fisheries or the Plant Variety Protection Tribunal under Article 90(1) (hereinafter referred to as "procedures for plant variety protection") nor a lawsuit against disposition issued by administrative agencies under this Act or an order under this Act shall be filed, except where the expatriate applies for registration under paragraph (3) and in cases prescribed by Presidential Decree. <Amended on Mar. 23, 2013>

(2) A manager of plant variety protection shall represent the principal in lawsuits against disposition issued by an administrative agency under this Act or orders under this Act and all procedures for plant variety protection within the authority specifically given to him or her.

(3) Unless an expatriate having a plant variety right or a right registered concerning plant variety protection files for registration of the appointment and change of a manager of variety protection or the granting or revocation of the agent's authority, as prescribed by the joint decree of the Ministry of Agriculture, Food and Rural Affairs and the Ministry of Oceans and Fisheries (hereinafter referred to as "joint ministerial decree"), he or she shall not assert the effect thereof against a third party. <Amended on Mar. 23, 2013>

(4) An expatriate shall register the appointment or change of a manager of plant variety protection when he or she files for registration of the establishment of a plant variety right or while the relevant plant variety right is valid.

Article 31(Claim for the right of priority) #

(1) Where a national of a foreign country that recognizes an ROK national's the right of priority to an application for plant variety protection claims the right of priority after filing an application for plant variety protection in the Republic of Korea for the same plant variety as that he or she filed an application for plant variety protection in the foreign country, the filing date of the application for plant variety protection in such foreign country shall be deemed the filing date of the application for plant variety protection in the Republic of Korea for purposes of Article 25. The same shall apply where an ROK national files an application for plant variety protection in a foreign country that recognizes the right of priority to an application for plant variety protection and files an application for plant variety protection in the Republic of Korea.

(2) A person who intends to claim the right of priority pursuant to paragraph (1) shall not be entitled to do so unless he or she files an application for plant variety protection within one year from the date following the filing date of the first application for plant variety protection.

(3) A person who intends to claim the right of priority pursuant to paragraph (1) shall indicate in the application for plant variety protection the intent thereof, the name of the country in which the first application for plant variety protection is filed and the filing date of the first application for plant variety protection.

(4) A person who has claimed the right of priority pursuant to paragraph (3) shall submit a certified copy of the application for plant variety protection recognized by the government of a country in which the first application for plant variety protection is filed within 90 days from the filing date of an application for plant variety protection under Article 32(2).

(5) A person who has claimed the right of priority pursuant to paragraph (3) may request the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries to postpone the examination of the relevant plant variety for three years from the filing date of the first application for plant variety protection, and the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall accept the request unless good cause exists; provided, where the person who has claimed the right of priority abandons the first application for plant variety protection or a decision of rejection by the country in which an application for plant variety protection filed becomes final and conclusive, the plant variety may be examined even before the postponed date of examination of the application for plant variety protection at the request of the person who has claimed the right of priority. <Amended on Mar. 23, 2013>

Article 49(Applications for plant variety protection and reinstatement of plant variety rights, by additional payment or settlement of outstanding plant variety protection fees) #

(1) Where a person who intends to register the establishment of a plant variety right or the plant variety right holder fails to pay plant variety protection fees within the additional period for payment or fails to settle outstanding fees within the period for settlement under Article 48(2) for grounds not attributable to him or her, he or she may pay the plant variety protection fees or settle outstanding fees within 14 days from the date such grounds cease to exist; provided, this shall not apply where six months have passed since the expiration date of the additional payment period or the expiration date of the settlement period, whichever comes later. <Amended on Feb. 11, 2020>

(2) Notwithstanding Article 47(3), a person who pays plant variety protection fees or settles outstanding plant variety protection fees shall be deemed not to have abandoned his or her application for plant variety protection, and the plant variety right shall be deemed to have existed retroactively from the expiration of the period for payment of plant variety protection fees. <Amended on Feb. 11, 2020>

(3) Where a plant variety right for a protected plant variety being exploited is extinguished for a failure to pay plant variety protection fees within the additional period for payment or to settle outstanding fees within the period for settlement under Article 48(2), the plant variety right holder may file an application for reinstatement of the extinguished right after paying an amount three times the plant variety protection fees under Article 46 within three months after the expiration of the additional period for payment or period for settlement. In such cases, the plant variety right shall be deemed to have existed retroactively from the expiration of the period for payment of plant variety protection fees. <Amended on Feb. 11, 2020>

(4) No application for plant variety protection or plant variety right under paragraph (2) or (3) shall be effective to another person's exploitation of a protected plant variety during the following periods (hereafter referred to as "period of limitation of effect" in this Article): <Amended on Feb. 11, 2020>

1. A period from the date of expiration of the additional period for payment to the date payment is made;

2. A period from the date of expiration of the additional period for payment to the date outstanding fees are settled.

(5) A person who conducts or prepares to conduct the business of exploiting a plant variety for which an application for plant variety protection is filed under paragraph (2) or (3) in good faith in Korea or a plant variety right during the period of limitation of effect shall have the non-exclusive license of the plant variety right for which an application for plant variety protection is filed within the scope of purposes of the plant variety being exploited or within the scope of purposes of the business being prepared.

(6) A person who has a non-exclusive license pursuant to paragraph (5) shall make reasonable payments to the relevant plant variety right holder or the relevant exclusive license holder.

Article 54(Registration of establishment of plant variety rights) #

(1) A plant variety right shall come into existence by completing the registration of establishment pursuant to Article 52(1)1.

(2) The Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall register the establishment of a plant variety right in any of the following cases: <Amended on Mar. 23, 2013; Feb. 11, 2020>

1. Payment of plant variety protection fees under Article 46(1);

2. Payment of plant variety protection fees after the expiration of the period of payment under Article 47(1);

3. Settlement of outstanding plant variety protection fees under Article 48(2);

4. Payment of plant variety protection fees or settlement of outstanding fees under Article 49(1);

5. Exemption from plant variety protection fees under Article 50.

(3) The Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall keep and manage a specified quantity of samples of seeds of a plant variety, the plant variety right of which is established and registered pursuant to paragraph (2), as determined and publicly notified by the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries. In such cases, where the samples of seeds are saplings, trophosomes or aquatic plants, the timing for, and methods of submission, other matters shall be prescribed by the joint ministerial decree. <Amended on Mar. 23, 2013>

(4) Where the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries has registered the establishment of a plant variety right pursuant to paragraph (2), he or she shall publish the following matters in the Official Gazette: <Amended on Mar. 23, 2013>

1. Name and address of the holder of the plant variety right (in the case of a corporation, its name, name of its representative or location of its place of business);

2. Registration number of the plant variety right;

3. Year, month and date of the registration of establishment of the plant variety right;

4. Duration of the plant variety right.

(5) When the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries has registered the establishment of a plant variety right pursuant to paragraph (2), he or she shall, without delay, issue a certificate of registration of a plant variety right prescribed by the joint ministerial decree to the plant variety right holder. <Amended on Mar. 23, 2013>

Article 56(Effect of plant variety rights) #

(1) The plant variety right holder shall have an exclusive right to exploit the protected plant variety as a business; provided, where an exclusive license is established for the plant variety right, this shall not apply to the extent that the exclusive license holder has an exclusive right to exploit the protected plant variety pursuant to Article 61(2).

(2) In addition to the right granted under paragraph (1), the plant variety right holder shall have an exclusive right to exploit, as a business, harvested material from the seeds of a protected plant variety using the misappropriated seeds without permission of the plant variety right holder, or to exploit products directly produced from such harvested material; provided, this shall not apply to a product directly manufactured by a person who has no knowledge that he or she does not have a legitimate right thereto.

(3) The effect of a plant variety right granted under paragraph (1) or (2) shall also apply to the following plant varieties:

1. Any plant variety essentially derived from a protected plant variety (limited to a protected plant variety not essentially derived from other plant varieties);

2. Any plant variety not clearly distinguishable from a protected plant variety under Article 18;

3. Any plant variety, the seeds of which require the repeated use of a protected plant variety.

(4) For purposes of paragraph (3)1, a plant variety that is derived from an initial plant variety or existing derived plant variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial plant variety and is clearly distinguishable from the initial plant variety, but the essential characteristics of which conform to the initial plant variety in the expression of the essential characteristics, except for differences in characteristics that result from the act of derivation, shall be deemed a derived plant variety.

Article 67(Adjudication on establishment of non-exclusive licenses) #

(1) Where any of the following applies to a protected plant variety, a person who intends to exploit the protected plant variety may file with the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries a request for adjudication on the establishment of a non-exclusive license (hereinafter referred to as "adjudication"); provided, a request for adjudication under subparagraph 1 or 2 may be made only where it is impossible to have consultation on granting a non-exclusive license with the plant variety right holder or the exclusive license holder for the relevant protected plant variety or where no agreement is reached upon such consultation: <Amended on Mar. 23, 2013>

1. Where the protected plant variety has not been exploited in the Republic of Korea for at least three years without any natural disaster or a force majeure event or without good cause prescribed by Presidential Decree;

2. Where the protected plant variety has not been exploited in the Republic of Korea on a substantial business scale for at least three consecutive years without good cause or fails to meet domestic demand to a reasonable extent and under reasonable conditions;

3. Where it is necessary to non-commercially exploit the protected plant variety for urgent adjustment of supply and demand or propagation due to a war, natural disaster or calamity;

4. Where it is necessary to exploit the protected plant variety in order to correct matters recognized as unfair trade practices according to judicial or administrative proceedings.

(2) Paragraph (1) shall not apply to a protected plant variety for which three years have not passed from the date of registration of the establishment of the plant variety right. <Amended on Feb. 11, 2020>

(3) When conducting an adjudication, the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall examine whether the establishment of non-exclusive license is necessary on an application-by-application basis. <Amended on Mar. 23, 2013>

(4) When conducting an adjudication, the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall attach a condition that the non-exclusive license shall be executed primarily for the supply to meet the domestic demand; provided, this shall not apply where an adjudication is conducted for a request made under paragraph (1)4. <Amended on Mar. 23, 2013>

(5) When conducting an adjudication under paragraph (1)4, the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries may take into consideration the intent that the adjudication is to correct unfair trade practices. <Amended on Mar. 23, 2013>

(6) When conducting an adjudication, the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall submit the relevant case for deliberation by the Seed Commission under Article 118. <Amended on Mar. 23, 2013>

Article 109(Procedures for registering denominations of plant varieties) #

(1) A person who intends to register the denomination of a plant variety (hereinafter referred to as "applicant to register the denomination of a plant variety") shall file an application to register the denomination of a plant variety with the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries with documents, etc. prescribed by the joint ministerial decree. <Amended on Mar. 23, 2013>

(2) If an application for plant variety protection is filed with the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries in cases falling under Article 106(1), an application to register the denomination of a plant variety shall be deemed filed. <Amended on Mar. 23, 2013>

(3) An examiner shall examine whether the denomination of a plant variety filed under paragraph (1) meets the requirements for registration of the denominations of plant varieties under Article 107.

(4) Where any of the following applies to the denomination of a plant variety filed for registration, an examiner shall decide to reject the application for registration:

1. Where a decision to reject the application for plant variety protection is made under Article 42(1);

2. Where it violates Article 106;

3. Where any subparagraph of Article 107 is applicable;

4. Where the denomination of a plant variety is ineligible for registration under Article 108.

(5) Where an examiner intends to reject an application to register the denomination of a plant variety pursuant to paragraph (4)2 through 4, he or she shall notify the applicant to register the denomination of the plant variety, of the grounds for rejection, and allow the applicant to submit a new denomination of the plant variety within 30 days from the date of notification.

(6) Where none of the subparagraphs of paragraph (4) applies to an application to register the denomination of a plant variety under paragraph (1), an examiner shall publicly announce the application to register the denomination of a plant variety by publishing the same in the Official Gazette.

(7) Where an application to register the denomination of a plant variety is publicly announced under paragraph (6), anyone may file an objection to registration of the denomination with the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries within 30 days from the date of public announcement. <Amended on Mar. 23, 2013>

(8) Where it is found that none of the subparagraphs of paragraph (4) applies to an application to register the denomination of a plant variety after the application to register the denomination of the plant variety pursuant to paragraph (6) is publicly announced or procedures for filing objections to registration of the denomination of the plant variety are completed, the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries shall, without delay, register the denomination of the plant variety in the register of denominations of plant varieties and shall notify the applicant to register the denomination of the plant variety of such fact. <Amended on Mar. 23, 2013>

Article 118(Seed Commission) #

(1) An Agricultural Seed Commission or a Maritime Seed Commission (hereinafter referred to as the "Seed Commission") shall be established within the Ministry of Agriculture, Food and Rural Affairs or the Ministry of Oceans and Fisheries to: <Amended on Mar. 23, 2013>

1. Advise the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries on the protection of plant variety rights;

2. Deliberate on adjudication on the establishment of non-exclusive licenses under Article 67;

3. Mediate disputes on the infringements of plant variety rights.

(2) The Seed Commission shall consist of one chairperson and at least 10 but up to 15 members (hereinafter referred to as "Seed Commission members"), including one full-time adjudicator of the Tribunal established under Article 90(2).

(3) The Seed Commission members shall be appointed or entrusted by the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries from among the following persons; and the chairperson shall be appointed or entrusted by the Minister of Agriculture, Food and Rural Affairs or the Minister of Oceans and Fisheries from among the Seed Commission members: <Amended on Mar. 23, 2013>

1. A current or former Grade III or higher grade public official (including a public official in the general service of the Senior Civil Service) who has experience in seed-related duties;

2. A current or former associate professor or higher in a university under the Higher Education Act, and who has studied the seed-related field;

3. A licensed attorney-at-law or patent attorney;

4. A current or former executive officer of an organization relating to agriculture, forestry or fishery;

5. A current or former executive officer of an association relating to the seed industry;

6. Persons recommended by a civic organization (referring to a non-profit, non-governmental organization as defined in Article 2 of the Assistance for Non-Profit, Non-Governmental Organizations Act).

(4) The term of office of the Seed Commission members shall be two years, which may be renewed for two further terms.

(5) The composition and operation of the Seed Commission and other necessary matters shall be prescribed by Presidential Decree.

ACT ON THE PROTECTION OF NEW VARIETIES OF PLANTS

Article 1(Purpose) #

Article 2(Definitions) #

Article 3(Plant varieties protectable) #

Article 4(Managers of plant variety protection for expatriates) #

Article 5(Scope of authority of agency) #

Article 6(Proof of authority of agency) #

Article 7(Representative of multiple parties) #

Article 8(Extension of period) #

Article 9(Amendment of procedures) #

Article 10(Invalidation of procedures) #

Article 11(When filings of documents become effective) #

Article 12(Implementation of procedures for plant variety protection using electronic documents) #

Article 13(Reporting on use of electronic documents and digital signature) #

Article 14(Notification via information and communications networks) #

Article 15(Application mutatis mutandis of Patent Act) #

Article 16(Requirements for plant variety protection) #

Article 17(Novelty) #

Article 18(Distinctness) #

Article 19(Uniformity) #

Article 20(Stability) #

Article 21(Persons entitled to plant variety protection) #

Article 22(Legal capacity of foreigners) #

Article 23(Applications for plant variety protection by persons without rights and protection of legitimate right holders) #

Article 24(Plant variety protection for persons without rights and protection of legitimate right holders) #

Article 25(First-to-file rule) #

Article 26(Transfer of right to plant variety protection) #

Article 27(Succession to right to plant variety protection) #

Article 28(Breeding by public officials as official duty) #

Article 29(Compensation for public officials for breeding as official duty) #

Article 30(Application for plant variety protection) #

Article 31(Claim for the right of priority) #

Article 32(Acceptance of applications) #

Article 33(Amendment of applications) #

Article 34(Exclusion from change of intent of application) #

Article 35(Dismissal of amendment) #

Article 36(Examination by examiners) #

Article 37(Laying-open of applications) #

Article 38(Right of provisional protection) #

Article 39(Exercise of right of provisional protection and suspension of legal proceedings) #

Article 40(Examination of applied plant varieties) #

Article 41(Submission of data) #

Article 42(Decision of rejection and notification of grounds for rejection) #

Article 43(Decision of plant variety protection) #

Article 44(Suspension of examination or legal proceedings) #

Article 45(Application mutatis mutandis of the Patent Act) #

Article 46(Plant variety protection fees) #

Article 47(Payment of plant variety protection fees after expiration of period for payment) #

Article 48(Settlement of outstanding plant variety protection fees) #

Article 49(Applications for plant variety protection and reinstatement of plant variety rights, by additional payment or settlement of outstanding plant variety protection fees) #

Article 50(Exemption from plant variety protection fees) #

Article 51(Refund of plant variety protection fees) #

Article 52(Plant variety register) #

Article 53(Official Gazette on plant variety protection) #

Article 54(Registration of establishment of plant variety rights) #

Article 55(Duration of plant variety rights) #

Article 56(Effect of plant variety rights) #

Article 57(Limitation on effect of plant variety rights) #

Article 58(Restriction on effect of plant variety rights) #

Article 59(Prohibition against restriction on plant variety rights) #

Article 60(Transfer of plant variety rights) #

Article 61(Exclusive licenses) #

Article 62(Effect of registration of plant variety rights and exclusive licenses) #

Article 63(Non-exclusive licenses) #

Article 64(Non-exclusive licenses based on prior use) #

Article 65(Non-exclusive licenses arising from exploitation prior to registration of requests for invalidation adjudication) #

Article 66(Non-exclusive licenses following transfer of plant variety right due to exercise of pledge right) #

Article 67(Adjudication on establishment of non-exclusive licenses) #

Article 68(Service of requests for adjudication) #

Article 69(Methods of adjudication) #

Article 70(Service of certified copy of written adjudication) #

Article 71(Deposit of consideration) #

Article 72(Invalidation of adjudication) #

Article 73(Restriction on grounds for objections to adjudication) #

Article 74(Effect of registration of non-exclusive licenses) #

Article 75(Restriction on abandoning plant variety rights) #

Article 76(Effect of abandonment) #

Article 77(Pledge rights) #

Article 78(Subrogation of pledge rights) #

Article 79(Revocation of plant variety rights) #