| Legislative： |
1.Promulgated as “Plant Seed Act” on December 5, 1988 by the
Presidential Order no. Hua-tzung-1-yi-tzu 5591. Enforced on
the same day.
2.Amended & promulgated on May 17, 2000 by the Presidential Order
no. Hua-tzung- 1-yi-tzu 8900118390 for Article 2.
3.Amended & promulgated on January 30, 2002 by the Presidential
Order no. Hua- tzung-1-yi-tzu 09100016990 for Article 3, 4(1),
25(1), 28~30, 34, 35, 37, 41 (1), 42~45.
4.Amended and promulgated as “Plant Variety and Plant Seed Act” on
21 April 2004 by Presidential Order no. Hua-tzung-1-yi-tzu
09300074811. Enforced on 30 June 2005 by the Executive Yuan.
5.Article 17 amended and promulgated on August 25, 2010 by President
Order Hua- Tsung (1)-Yi-Tzu No. 09900219181
6.Article 4 amended and promulgated on May 23, 2018 by President
Order Hua- Tsung (1)-Yi-Tzu No. 10700055481; the enforcement date
to be determined by the Executive Yuan
7.Article 51 and 55 amended, Articles 53-1 Added and Promulgated on
May 17, 2023 by President Order Hua- Tsung (1)-Yi-Tzu
No.11200040941; the enforcement date to be determined by the
Executive Yuan.
The announcement was made on July 27, 2023 by the Executive Yuan
Order tai-gui-zi No. 1125014346. The relevant matters set out in
Article 2, Article 4, Article 11, Article 14, Paragraph 1, Article
16, Paragraph 2, Article 19, Paragraph 1, Article 20, Article 21,
Article 24, Paragraph 3, Article 26, Paragraph 2, Article 27,
Paragraph 2, Article 30, Paragraph 1,3,4,6,8, Article 31, Article
33, Article 34, Article 35, Article 31, Article 36, Paragraph 1,
Subparagraph 2, Article 37, Paragraph 1,2, Article 38, Paragraph
1, Article 39, Article 43, Article 44, Paragraph 2, Article 46,
Paragraph 1, Subparagraph 5, Article 50, Paragraph 1, Article 51,
Paragraph 2, Article 52, Article 53, Paragraph 2, Article 57,
Article 60, Paragraph 1, Article 61, Paragraph 5, Article 63,
Article 64 pertaining to “ the Council of Agriculture of the
Executive Yuan” shall be handled by “Ministry of Agriculture” as
governing body, effective August 1, 2023. |
| Content： |
Chapter 1 General Principles
Article 1
This Act is enacted to protect rights in plant varieties,
facilitate improvements in plant varieties, and implement a
plant seed administration system to promote farmers' interests
and benefit agricultural development. With respect to matters
not provided for in this Act, other applicable laws shall
govern.
Article 2
Competent authorities as referred to in this Act: At the central
government level: the Council of Agriculture, Executive Yuan; at
the special municipal level: the government of the special
municipality; and at the county (city) level: the government of
the county (city).
Article 3
The terms as used in this Act are defined as follows:
1. "Variety" means a plant grouping within a botanical taxon of
the lowest rank that expresses its characteristics through a
single genotype or a certain combination of genotypes and,
can be distinguished by at least one characteristic from any
other plant grouping while remaining unchanged in its main
characteristics when undergoing a designated method of
propagation.
2. "Transgenic technology" means the transfer of an exogenous
gene into a plant cell using technologies such as genetic
engineering or molecular biology to cause a gene
recombination phenomenon so that the plant expresses the
characteristic of the exogenous gene. Such technology,
however, shall not include traditional hybridization,
mutation, in vitro fertilization, cell and protoplast fusion
wherein the cell and protoplast are within the same family of
plant taxonomy, somatic mutation, or chromosome doubling.
3. "Transgenic plant" means a plant or seed that is obtained by
means of transgenic technology, as well as the progeny
derived from such plant or seed.
4. "Breeder" means a person who breeds, or discovers and
develops varieties.
5. "Plant seed" means an entire plant, or any part thereof, that
is ready for propagating or planting.
6. "Plant seed enterprise" means the enterprise that is engaged
in the business of breeding, propagation, importation,
exportation, or sale of plant seeds.
7. "Sale" means the act of selling at a fixed price, or
bartering.
8. "Promotion" means the act of introducing or providing plant
seeds for others to use.
Article 4
Botanical taxons governed by this Act are seed plants, ferns,
mosses, multicellular algae, and other cultivated plants that
are cultivated for the production of agricultural products.
Article 5
The term "right to apply for a variety " means the right to
apply for a variety in accordance with this Act.
The term "the holder of the right to apply for a variety " means
the breeder or any of the breeder's assignees or successor,
unless otherwise specified in this Act or as otherwise provided
in an agreement between the parties.
Article 6
The right to apply for a variety and a variety right may be
assigned or inherited.
At the time of filing an application for a variety right, an
assignee or successor shall state the breeder's name and submit
supporting documents of proof concerning such assignment or
inheritance.
The assignment or inheritance of the right to apply for a
variety or a variety right shall have no locus standi against
any bona fide third party without registration.
Article 7
The right to apply for a variety shall not be taken as the
subject of a pledge.
In the case of taking a variety right as the subject of a
pledge, the pledgee shall not be allowed to exploit such the
right to a variety, unless it is otherwise specified for in an
agreement.
Article 8
Unless otherwise specified in an agreement between the parties,
the variety right and the right to apply for a variety for a
variety bred by, or discovered and developed by, an employee
within the course of employment shall be vested in the employer,
and the employer shall provide the employee with appropriate
rewards or remuneration.
A variety bred, or discovered and developed, by an employee
within the course of employment as set forth in the preceding
Paragraph shall mean the variety completed by an employee in the
course of performing during the period of employment
relationship.
Where a fund provider appoints another party to engage in the
work of breeding a variety, the agreement between the parties
shall govern with respect to the ownership of the right to apply
for a variety and a variety right, or such rights shall be
vested in the breeder in the absence of such agreement. However,
the fund provider shall be entitled to exploit such variety.
In accordance with the requirements of Paragraphs 1 or 3 of this
Article, where the right to apply for a variety and a variety
right are vested in the employer or the fund provider, the
breeder concerned shall be entitled to a right to have his/her
name shown as such.
Article 9
Where a variety bred by, or discovered and developed by, an
employee outside the course of employment, the employee shall be
entitled to the right to apply for the variety and the variety
right. However, if such variety is made through the utilization
of the employer’s resources or experiences, the employer may
exploit the variety in the enterprise after paying reasonable
remuneration to the employee.
Where an employee completes a variety that has no connection to
the course of the employment, the employee shall give a written
notification to the employer regarding such facts; and, if
necessary, shall also inform the employer of the breeding
process, or the discovery and development process, of the
variety.
If the employer fails to raise any objection to the employee
within six months after receiving the employee’s written
notification under the preceding Paragraph, the employer shall
not claim that such variety was completed by the employee within
the course of the employment.
Article 10
An agreement concluded in advance between an employer and an
employee as stated in the preceding article, based on which the
employee is precluded from enjoying legitimate rights and
interests in respect of applying for a variety and having a
variety right, shall be void.
Article 11
A variety application filed by a foreign applicant may not be
accepted if the home country of such foreign applicant is not a
signatory to an international treaty or organization for
protection of variety right to which the Republic of China (ROC)
is a signatory, or if the home country does not conclude with
the ROC a treaty or an agreement for reciprocal protection of
variety rights, or if no variety protection agreement is
concluded by and between organizations or institutions of the
ROC and said foreign country and approved by the respective
competent authorities, or if the foreign country refuses to
accept variety applications filed by ROC nationals.
Chapter 2 Application for a Plant Variety Right
Article 12
A variety that has the characteristics of novelty, distinctness,
uniformity, and stability, as well as an appropriate variety
denomination, may be the subject of an application for a variety
right in accordance with this Act.
"Novelty" as referred to in the preceding Paragraph means that
prior to the date of filing of the application for a variety
right, no plant seeds and no harvested material of such variety
have been sold or promoted solely by, or with the consent of,
the holder of the right to apply for the variety right either
inside the R.O.C. for longer than one year or outside the R.O.C.
for longer than six years in the case of trees or perennial
vine plants, or for longer than four years in the case of all
other plant species.
"Distinctness" as referred to in Paragraph 1 means that a
variety can be distinguished on the basis of one or more
recognizable and articulable characteristics from any other
varieties that have been in general circulation, or that have
obtained a variety right either inside or outside the R.O.C.,
prior to the date of filing the application for the variety
right.
"Uniformity" as referred to in Paragraph 1 means that, with the
exception of predictable natural variations, the characteristics
of individual plants of the variety exhibit uniformity in
comparison with each other.
"Stability" as referred to in Paragraph 1 means that the main
characteristics of the variety are able to remain unchanged
after repeated propagation, or after a particular cycle of
propagation, through a designated method of propagation.
Article 13
A variety denomination under the preceding Article shall not
contain any of the following circumstances:
1. such denomination is expressed solely in the form of figures,
2. such denomination is identical with or similar to the
denomination of another variety within the same species or a
closely related species,
3. such denomination is likely to mislead or cause confusion as
to the characteristics of the variety or the identity of the
breeder, or
4. such denomination is contrary to public order and public
morals.
Article 14
To apply for a variety right, the applicant shall submit to the
central competent authority a duly completed application form
together with a written description of the variety and relevant
supporting documents.
The written description of the variety shall state the following
matters:
1. The name, domicile, and residence of the applicant, or in the
case of a juridical person or organization, its name, office
location or place of business, as well as the name, domicile,
and residence of its legal representative or manager;
2. The botanical taxon of the variety;
3. The denomination of the variety;
4. The source of the variety;
5. The characteristics of the variety;
6. The process of breeding and discovery of the variety;
7. A test report on the cultivation of the variety;
8. Matters to which one must pay attention when cultivating the
variety; and
9. Other related matters.
A variety denomination shall be written in Chinese, together
with the denomination in Roman letters. For varieties bred in
foreign countries, the variety denomination shall be written in
Roman letters and Chinese.
Article 15
Where a right to apply for a variety is jointly owned, the
variety application related thereto shall be filed by all the
joint owner(s).
Article 16
The filing date of an application for a variety right shall be
the date on which a duly completed application form, a written
description of the variety, and the relevant supporting
documents are submitted.
If not all required documents are submitted for an application
for a variety right, or if such documents are incomplete or
deficient in their statements of information, the central
competent authority shall specify the reasons and notify the
applicant to remedy such deficiency within a specified time
limit. If the applicant fails to remedy the deficiency within
the time limit, the application shall not be accepted. If the
applicant is able to remedy the deficiency within the time
limit, the date of remediation shall be deemed to be the filing
date.
Article 17
With regard to the same variety, the applicant who applies for
the first time at a country or World Trade Organization member
that has the mutual recognition of priority right with the
R.O.C. and submits an application for the variety right within
twelve (12) months after the first application date may claim
the priority right.
Where an applicant has first applied for a variety in a foreign
country, which reciprocally allows ROC nationals to claim
variety priority, or with any member of the World Trade
Organization (WTO), the applicant may claim priority in respect
of an ROC variety application for the same variety if the ROC
variety application for the same variety is filed within twelve
(12) months after the filing date of the said first variety
application.
An applicant who claims the priority right pursuant to the
preceding paragraph shall simultaneously make a declaration, and
submit evidentiary proof of the application as accepted by the
country or WTO member referred to in the preceding paragraph
within 4 months from the next day of the application date. An
applicant is not entitled to the right of priority if he/she
fails to fulfill the aforementioned requirements.
In the case that an applicant claims the priority right, the
review of the elements of the plant variety right shall be based
on the date of the priority right.
Article 18
Where two or more persons separately file applications for a
variety right with respect to the same variety, the first to
file the application shall prevail. The above provision shall
not apply where the priority date claimed by the latter
applicant precedes the filing date of the prior applicant.
If the filing date and the priority right date under the
preceding Paragraph are the same date, the applicants shall be
notified to reach an agreement on this issue. If the applicants
fail to reach an agreement, none of these applicants shall be
granted a variety right.
Article 19
When accepting an application for a variety right, the central
competent authority shall make public the following information
within one month from the day following the filing date of the
application:
1. The serial number and filing date of the application,
2. The applicant's name or title, and address;
3. The denomination of the variety, and the botanical taxon to
which the variety that is the subject of the application
belongs; and
4. Other required matters.
After obtaining a variety right, the applicant may claim
appropriate compensation against the exploiter who, has been
given a written notice by the applicant after the laying open of
the variety application, continues to commercially exploit the
variety after receiving the notice and before the approval of
the application is published.
The claim referred to in the preceding paragraph may also be
made against a person who is fully aware that the variety
application has been laid open but continues to commercially
exploit the variety prior to its publication.
The right to claim appropriate compensation under the preceding
two Paragraphs shall become extinguished if not exercised within
2 years after the publication date of the said variety right.
Article 20
If necessary, during the examination of applications for variety
rights, the central competent authority may notify the
applicants to submit within a specified time limit the materials
necessary for examining variety characteristics, as well as
other relevant information or materials.
After the examination of an application for the variety right,
the central competent authority shall use the examination
results to produce a written decision clearly stating the
reasons for the decision, and shall notify the applicant of such
decision. Varieties that are examined and determined to meet the
requirements for a variety right shall be approved and published
as variety rights.
Article 21
The central competent authority shall establish a Variety Review
Committee to review variety rights applications, revocations,
and annulments.
The review committee under the preceding Paragraph shall be made
up of five to seven members. The central competent authority
shall invite experts or specialists who have extensive research
backgrounds or experiences concerning variety review
regulations, plant cultivating techniques, or other relevant
fields, to serve as members of the committee. The organization
regulations of this committee and the review procedures shall be
prescribed by the central competent authority.
Chapter 3 Plant Variety Rights
Article 22
The effectiveness of plant variety rights starts from the date
of approval and publication of the plant variety rights
application.
Article 23
The term of a plant variety right for a tree or a perennial vine
plant shall be twenty-five (25) years from the date of approval
and publication of the variety right. The term of the variety
right for all other plant species shall be twenty (20) years
from the date of approval and publication of the variety right.
Article 24
The holder of a variety right shall have the exclusive right to
preclude others from engaging, without the consent of the
holder, in the following acts with respect to plant seeds to
which the holder has the variety right:
1.roduction or reproduction (multiplication),
2.conditioning for the purpose of propagation,
3.offering for sale,
4.selling or otherwise marketing,
5.importing or exporting, or
6.holding for any of the purposes in the preceding 5
Subparagraphs.
The holder of a variety right shall have the exclusive right to
preclude others from engaging, without the consent of the
holder, in the acts as set forth in the Subparagraphs of the
preceding Paragraph with respect to the harvested material
obtained through use of plant seeds of such variety.
The holder of a variety right shall have the exclusive right to
preclude others from engaging, without the consent of the holder
of the variety right, in the acts as set forth in the
Subparagraphs of Paragraph 1 with respect to processed products
obtained directly through the use of the harvested material
under the preceding Paragraph, provided that this provision
shall apply only to plant species published by the competent
authority.
The exercise of the rights as referred to in the preceding two
Paragraphs shall be limited to where the holder of the variety
right has had no reasonable opportunity to exercise his or her
rights with respect to the acts in the Subparagraphs of
Paragraph 1.
Article 25
The protection of variety rights under the preceding Article
shall extend to the following dependent varieties:
1.A variety substantially derived from a variety protected by
the variety right, and where such protected variety is not
substantially derived from another variety;
2.A variety not clearly distinguishable in comparison with a
variety protected by the variety right; or
3.A variety that requires repeated use of a variety protected by
the variety right in order to be produced.
The protection of a variety right shall not extend to a
dependent variety whose existence was a matter of common
knowledge before the amendment to this Act takes effect.
A "variety substantially derived" from another variety as
referred to in Subparagraph 1 of Paragraph 1 shall meet the
following requirements:
1.The variety is derived from an initial variety, or from a
variety that is substantially derived from an initial variety;
2.The variety is clearly distinguishable in comparison with the
initial variety; and
3.The variety, except for differences as a result of the act of
derivation, retains the characteristics expressed by the
genotype or combination of genotypes of the initial variety.
Article 26
The protection of a variety right shall not extend to any of the
acts in the following Subparagraphs:
1. Acts done by an individual for non-profit purposes;
2. Acts done for experimental or research purposes;
3. Acts done for the purpose of breeding other varieties, but
not including acts for the purpose of breeding dependent
varieties set forth in Paragraph 1 of the preceding Article;
4. Acts done by farmers of keeping, for the farmer's own use,
plant seeds of a variety protected by a variety right or of
the harvested material obtained from plant seeds of dependent
varieties as set forth in Subparagraphs 1 and 2 of Paragraph
1 of the preceding Article;
5. Acts, at a farmer's request and for the purpose of providing
the farmer with propagating material, of engaging in the
conditioning and nursing of harvested material obtained from
the propagating material of a variety protected by a variety
right, or of its dependent variety;
6. Acts done of domestically selling or otherwise circulating
any material of a variety protected by a variety right, or
its dependent variety, as undertaken voluntarily by or with
the consent of the holder of the variety right, but not
including acts of further propagation of such protected
variety; or
7. Acts done with respect to any material derived from the
material set forth in the preceding Subparagraph, but not
including acts of further propagation of such protected
variety.
Subparagraphs 4 and 5 of the preceding Paragraph shall apply
only to plant species published by the central competent
authority for the purposes of ensuring food safety.
The "material" as referred to in Paragraph 1 means any
propagating material, harvested material, and products made
directly from the harvested material, of a variety. Such
harvested material shall include entire or parts of the plant.
Acts done under Subparagraphs 6 and 7 of Paragraph 1 shall not
include acts of exporting propagating material of such protected
variety to a country that does not protect the plant genus or
species to which the variety belongs, provided that this
provision shall not apply where the purpose is for final
consumption.
Article 27
A variety right may be licensed to and exercised by a third
party.
The license of a variety right to others or the creation of a
pledge on a variety right shall be registered with the central
competent authority. Unless registered, no action may be taken
against a bona fide third party.
Article 28
Without the consent of the holders of two-thirds or more of the
interested shares in a variety right, no joint owner shall
assign his or her own share, license others to exercise such
share, or create a pledge on such share; provided, however, that
if the parties have agreed otherwise, the terms of such
agreement shall govern.
Article 29
A variety right holder shall not abandon his or her rights
without the consent of his or her licensee(s) or pledgee(s).
Article 30
In response to significant national situations or to make non-
profit use for the enhancement of the public interest, or in the
case of an applicant's failure to reach a licensing agreement
with the holder of a variety right under reasonable commercial
terms within a considerable period of time, the central
competent authority may grant a compulsory license to exercise
such variety right upon request, provided that such license is
exercised mainly for the purposes of satisfying domestic market
demand.
Compulsory licenses shall be nonexclusive and nontransferable
licenses only. The period of a compulsory license shall be
clearly specified in the license; however, in no event shall the
period exceed 4 years.
In the absence of the conditions set forth in Paragraph 1, the
central competent authority still may grant a compulsory license
for the exercise of a variety right to the person applying for a
compulsory license upon receipt of a request from the person in
the event that the holder of such variety right has engaged in
restricting competition or in unfair competition as confirmed by
a court decision or by a decision of the Fair Trade Commission
of the Executive Yuan.
Upon receipt of a written request for a compulsory license, the
central competent authority shall serve a copy of the request on
the holder of the variety right, requesting the holder of the
variety right to make a defense within 3 months. If no defense
is responded within the specified time limit, the central
competent authority may decide the matter by its authority.
A compulsory license with respect to a variety right shall not
preclude others from obtaining a right to exercise such variety
right.
The holder of the compulsory licensee shall provide the holder
of the variety right with appropriate remuneration. In the case
of a dispute, it shall be determined by the central competent authority.
The compulsory license shall be transacted together with the
business pertaining to the compulsory license for assignment,
inheritance, license, or pledge creation.
When the reason for the compulsory license ceases to exist, the
central competent authority may annul the compulsory license
upon request.
Article 31
If the holder who has obtained a compulsory license in
accordance with the provisions of the preceding Article violates
the purpose of the compulsory license, the central competent
authority may, upon an request filed by the holder of the
variety right or ex officio, annul the compulsory license.
Article 32 Regardless of whether the term for a variety right
has expired, any person who sells or otherwise markets a variety
that currently is protected by, or at one time was protected by
a variety right, shall be required to use the denomination of
the variety for which the corresponding variety right was
obtained.
Where such variety denomination is to be indicated together with
a trade name or a trademark, such denomination shall be clearly
recognizable as the variety denomination.
Article 33 In order to perform follow-up testing to determine
whether the variety protected by a variety right still maintains
its original characteristics, the central competent authority
may require the holder of the variety right to provide an
adequate quantity of plant seeds of such variety or other
necessary information.
Article 34
The central competent authority may appoint its subordinate
agencies or entrust other agencies or institutions to conduct
the examination and follow-up testing of variety characteristics
set forth in Article 20 and the preceding Article. The
regulations governing such appointment or entrustment shall be
prescribed by the central competent authority.
Article 35
If the denomination of the variety fails to meet the
requirements of Article 13, the central competent authority may
require the holder of the variety right to propose a suitable
denomination within a specified time period.
Article 36
A variety right shall become extinguished under any of the
following circumstances:
1. When the variety right expires, it shall be extinguished on
the day following the expiration date;
2. When the variety right holder abandons the right, the variety
right shall be extinguished from the date that the central
competent authority receives a written declaration from the
variety right holder; in the case a date of the abandonment
is specified in the written declaration, the variety right
shall be extinguished from that specific date; or
3. When the holder of the variety right fails to pay the annual
fee within a time period for remedial payment, the variety
right shall be extinguished on the date following the final
date of the annual payment term.
In the case of the death of the holder of a variety right
without a person claiming to be an heir, the ownership of the
variety right shall be transferred to the national treasury in
accordance with the requirements of Article 1185 of the Civil
Code.
Article 37
The central competent authority shall revoke a variety right,
either upon request or ex officio, under any of the following
circumstances:
1. The variety protected by a variety right fails to meet the
requirements of Article 12; or
2. The variety right is obtained by a person who is not entitled
to the right to apply for the variety right.
The central competent authority shall annul a variety right,
either upon request or ex officio, under any of the following
circumstances:
1. After the variety right is obtained, such variety protected
by the variety right no longer meets the requirements of
uniformity or stability under Article 12;
2. The holder of a variety right fails to fulfill his or her
obligations in accordance with the requirements of Article 33
without justifiable reasons; or
3. The holder of a variety right fails to propose a suitable
denomination under Article 35 without justifiable reasons.
Upon the revocation or annulment of a variety right, the variety
right certificate shall be returned within a specified time
limit. If such certificate fails to be returned upon demand,
such certificate shall be recorded and published as invalid.
Article 38
Any person who believes that a variety right falls within any of
the circumstances set forth in Paragraphs 1 or 2 of the
preceding Article may submit to the central competent authority
a request for revocation or annulment of such variety right
together with a written statement explaining the reasons for the
request and any supporting evidence, provided that only the
holder of the right to apply for such variety right may request
revocation under Subparagraph 2 of Paragraph 1 of the preceding
Article.
If a variety right is revoked in accordance with Paragraph 1 of
the preceding Article, such variety right shall be deemed to be
nonexistent from the beginning.
Article 39
The central competent authority shall publish any amendments to,
compulsory license or license to, creation of pledges on, and
expiration, revocation, or annulment of, a variety right.
Article 40
The holder of the variety right or his or her exclusive licensee
may request the removal of the infringement and the prevention
of any likely infringement. In case an infringement of the
variety right occurs due to an intentional act or negligence,
the right holder may claim damages suffered therefrom.
When making a request pursuant to the preceding Paragraph, the
right holder or his or her exclusive licensee may request for
destruction or other necessary disposal of the infringing
articles or the materials or implements used for the
infringement. Where the breeder’s right to be indicated as such
is infringed, the breeder may request for necessary
disposition(s) to have his/her name indicated or to restore the
impaired reputation.
The rights to request as set forth in this Article shall become
extinguished if not exercised within 2 years from the time the
patentee becomes aware of the infringement and the person liable
for the infringement. This right shall also become extinguished
if it is not exercised within ten (10) years after the time of
the infringement.
Article 41
The infringement claimed pursuant to the preceding Article may
be calculated according to any of the following methods:
1. The method as set forth in Article 216 of the Civil Code; if
no method of proof can be produced to prove the damages
suffered, the variety right holder or exclusive licensee may
claim damages based on the difference between the profit
earned through the variety right exploitation after the
infringement and the profit normally expected through the
exploitation of the same variety right; or
2. The profit earned by the infringer as a result of the variety
right infringement; when the infringer is unable to provide
proof of costs and/or necessary expenses, the entire income
derived from the infringer's sales of the infringing articles
shall be deemed to be the infringer's profits.
In addition to the requirements set forth in the preceding
Paragraph, the holder of the variety right or his or her
exclusive licensee may claim separately for an appropriate
amount of remuneration corresponding to losses to his or her
respective business reputation as a result of the infringement.
Article 42
Prior to the final decision on the revocation or annulment of a
variety right, the adjudication on all civil proceedings
concerning such variety right may be suspended.
Article 43
An unrecognized foreign juridical person or organization may
initiate civil proceedings in respect of the matters governed by
this Act provided that the nationals or organizations of the
R.O.C. are entitled to the same rights under treaties, agreements, or national laws or customary practices of the
applicant's home country. The above provision also shall apply
to variety right protection agreements that are concluded by and
between the organizations or institutions of the R.O.C. and
those of the foreign country and that are approved by the
central competent authority.
Chapter 5 Plant Seed Administration
Article 44
Unless a plant seed enterprise has obtained approval from the
special municipality or county/city competent authority and has
been issued a plant seed enterprise registration certificate,
such enterprise shall be prohibited from engaging in business
operations.
The qualification requirements and facility standards for plant
seed enterprises shall be prescribed by the central competent
authority.
Article 45
The plant seed enterprise registration certificate shall
indicate the following matters:
1. the registration certificate number and the date, month, and
year of the registration;
2. the name and address of the plant seed enterprise, and the
name of the person responsible for such enterprise;
3. the scope of the operations of, and the categories of plant
seeds involved, the enterprise's business;
4. the amount of capitalization of the enterprise;
5. in the case of persons engaged in propagation, the address of
any related location where the propagation takes place;
6. the term of validity of the registration certificate; and
7. other related matters.
If a change occurs with respect to the matters under
Subparagraphs 2 or 3 of the preceding Paragraph, an application
for amendment to the enterprise's registration shall be filed
with the government authority agency that approved and issued
the original registration certificate within thirty(30) days of
the date of such change. The competent authority may order an
enterprise that has failed to apply for an amendment to its
registration within such time limit to amend its registration
within a specified time limit.
Article 46
The following information shall be marked, mainly in Chinese
together with the denomination of the plant variety in Roman
letters, on the packaging, containers, or labels of a plant seed
sold by a plant seed enterprise:
1. the name and address of the plant seed enterprise;
2. the botanical taxons of the plant seeds and the Chinese
variety denomination of the plant seed, or the plant variety
right registration certificate number;
3. the place of production;
4. weight and quantity; and
5.any other matters required by the central competent authority.
With respect to seeds under Subparagraph 2 of the preceding
Paragraph, information concerning the germination percentage and
testing date shall be marked; in the case of grafted plants,
information concerning the botanical taxons and denominations of
the scion as well as the stock shall be marked.
Article 47
Where a plant seed enterprise fails to start business operations
within 1 year after its registration is approved, or where an
enterprise, after having started business operations, has ceased
business operations for a period of 1 year without justifiable
reasons, the special municipality or county/city competent
authority may annul the registration of the enterprise.
Article 48 The registration certificate shall be effective for a
term of ten (10) years. Plant seed enterprises that need to
continue their business operations after the end of such term
shall file an application for re-issuance of the registration
certificate, together with the original registration
certificate, within three months prior to the final date of such
term. If a plant seed enterprise fails to file such an
application or otherwise fails to meet the requirements of this
Act, the enterprise's original registration certificates shall
be published by the competent authority as invalid.
Article 49
Within thirty (30) days of annulling business operations, a
registered enterprise shall file an application with the special
municipality or county/city competent authority to record the
cessation of its business operations and shall submit the
registration certificate for annulment. If such enterprise fails
to file the application or make such submission, its
registration shall be canceled by the competent authority ex
officio.
Article 50
The competent authority may assign inspectors to inspect whether
a plant seed enterprise meets the qualification requirements and
facility standards, as well as the labeling of plant seeds sold
by the enterprise. A plant seed enterprise shall not refuse,
evade, or obstruct the inspection. If the inspection results
reveal any inconformity with the requirements and standards set
forth in Paragraph 2 of Article 44, the competent authority
shall notify the enterprise to correct the noncompliance within
a specified time limit.
Inspection personnel shall present official identification when
performing official duties.
Article 51
Seeds, their harvested material, and products processed directly
from their harvested material should be allowed to be freely
imported and exported. However, restrictions or prohibitions may
be imposed in the following circumstances:
1. Import and/or export may be restricted due to international
treaties or trade agreements, or for the purpose of
protecting rights in such plant varieties, or due to public
safety, sanitation, environmental protection, ecological
protection, or policy needs.
2. Import and/or export may be prohibited if it hinders national
security or national interests, or affects the development of
domestic agriculture industry.
With respect to plant seeds, their harvested material, and
products processed directly from their harvested material that
are subject to the import and/or export restrictions and/or
prohibitions under the preceding Paragraph, their botanical
taxa, quantities, areas or regions, time periods, and conditions
shall be published by the central competent authority after
consulting with relevant authorities.
Article 52
Without the approval of the central competent authority, the
importation or exportation of transgenic plants is prohibited.
The regulations governing the approval for the importation or
exportation of transgenic plants shall be prescribed by the
central competent authority.
Transgenic plants introduced from abroad or cultivated
domestically shall be prohibited from domestic promoting or sale
unless they have been approved by the central competent
authority for field experience and are accompanied by a consent
document approved by the central competent authority for the
intended purpose.
The testing methods, application and examination procedures,
relevant administrative regulations, and the standard rates of
the testing fees of the field experience referred to in the
preceding Paragraph shall be prescribed by the central competent
authority.
Due to food safety and environmental safety, transgenic plants
shall be appropriately packaged and labeled for import, export,
transport, marketing, and sale. The packaging and labeling
regulations shall be prescribed by the central competent
authority.
Article 53
No imported plant seed shall be used for any purposes other than
the declared purpose of importation.
In order to prevent any imported plant seeds from being used for
purposes other than the declared one, the central competent
authority may require the importer to undertake necessary
treatments such as pesticide treatment beforehand.
Chapter 6 Penal Provisions
Article 53-1
Any person who imports and/or exports plant seeds, their
harvested material, or products processed directly from their
harvested material in violation of the prohibition published in
accordance with Paragraph 2 of Article 51 shall be sentenced to
imprisonment for not more than three years, detention, and/or a
fine of more than six hundred thousand New Taiwan Dollars but
less than three million New Taiwan Dollars.
If the crime set forth in the preceding Paragraph is committed,
the plant seeds, their harvested material, or products processed
directly from their harvested material in violation shall be
confiscated, whether they belong to the offender or not.
If a representative of a juridical person, or an agent, employee
or other staff of a juridical person or a natural person commits
the offense specified in Paragraph 1 of this Article in the
course of the execution of business, in addition to the
punishment of the perpetrator, a fine specified in Paragraph 1
shall also be imposed on the juridical person or natural person.
However, if the representative of a juridical person or the
natural person has done the best to prevent the commission of
the crime, the juridical person or the natural person shall be
exempted from the punishment.
Article 54
Any person in any of the following circumstances shall be fined
more than one million New Taiwan Dollars but less than five
million New Taiwan Dollars:
1. Importing or exporting in violation of the mandatory
requirements governing approval under Paragraph 1 of Article
52;
2. Promoting and selling in violation of the requirements under
Paragraph 2 of Article 52; or
3. Conducting field testing in violation of the mandatory
requirements governing administrative regulations under
Paragraph 3 of Article 52.
Any plant illegally imported or exported, promoted, sold, or
field-tested as set forth in the preceding Paragraph may be
confiscated or destroyed.
Article 55
Any person who imports and/or exports plant seeds, their
harvested material, or products processed directly from their
harvested material in violation of the restriction published in
accordance with Paragraph 2 of Article 51 shall be fined more
than five hundred thousand New Taiwan Dollars but less than two
million five hundred thousand New Taiwan Dollars ; such plant
seeds, their harvested material, and products processed directly
from their harvested material may be confiscated in whole or in
part, regardless of who owns them.
Article 56
Any person in either of the following circumstances shall be
fined more than sixty thousand New Taiwan Dollars but less than
three hundred thousand New Taiwan Dollars: :
1. Violating the requirements of Paragraph 1 of Article 32 by
failing to use the denomination for a variety for which a
plant variety right has been obtained, or
2. Violating the requirements of Paragraph 1 of Article 44 by
engaging in business operations without prior registration.
When imposing a fine set forth in Subparagraph 2 of the
preceding Paragraph, the competent authority may also order an
enterprise to cease its business operations. Any enterprise that
fails to cease its business operations shall be fined based on
the number of months of such violation.
Article 57
Any enterprise that fails to meet the qualification requirements
or facility standards for plant seed enterprises under Paragraph
2 of Article 44 within the time limit for correction as
specified by the competent authority under the requirements of
Paragraph 1 of Article 50 shall be more than thirty thousand New
Taiwan Dollars but less than one hundred fifty thousand New
Taiwan Dollars. Any enterprise in serious violation may be
ordered to cease all business activities for up to six months.
If a violating enterprise fails to correct its violation within
three months after resuming its business operations, the matter
may be reported to the higher competent authority for approval
of the annulment of the enterprise's registration.
Article 58
Any person in any of the following circumstances shall be fined
more than twenty thousand New Taiwan dollars but less than one
hundred thousand New Taiwan dollars:
1. Violating the requirements of Article 46 for unclear,
incomplete, or false labeling, or failure to label;
2. Refusing, evading, or obstructing inspectors from conducting
inspections as stipulated in Paragraph 1 of Article 50; or
3. Violating the requirements under Paragraph 1 of Article 53.
Article 59 Any enterprise that fails to file an application
for an amendment to its registration within the time limit
specified by the competent authority under the requirements
of Paragraph 2 of Article 45 shall be fined more than ten
thousand New Taiwan Dollars but less than fifty thousand New
Taiwan Dollars.
Article 60
Except for fines set forth in Article 54 and Article 55, which
shall be imposed by the central competent authority, all other
fines under this Act shall be imposed by the special
municipality or county/city competent authority.
If a fine imposed according this Act fails to be paid within the
prescribed period, it shall be enforced compulsorily in
accordance with the law.
Chapter 7 Supplementary Provisions
Article 61
An applicant for a plant variety right shall pay the application
fee at the time of filing such application. Upon approval of a
plant variety right, the holder of the plant variety right shall
pay the certificate fee and the annual fee. No plant variety
right shall be published, nor shall any plant variety
certificate be issued, until the annual fee for the first year
and the certificate fee are paid.
The annual fee for the second year and subsequent years shall be
paid prior to the end of the term. If such an annual fee fails
to be paid within the time period for payment, a remedial
payment of the annual fee may be made within six months of the
final date of the term, provided that the annual fee shall be
paid at a rate of twice of what is otherwise required for timely
payment of the annual fee.
The examination fee required for the examination of
characteristics under Paragraph 1 of Article 20 shall be paid by
the applicant. The examination fee required for the follow-up
testing of characteristics under Article 33 shall be paid by the
holder of the plant variety right.
The applicant or the person making a request shall pay the
registration fee as well as any application or request fee at
the time of filing an application or request under Paragraph 2
of Article 27, Paragraph 1 of Article 44, and Article 38.
The standard rates for the various application or request fees,
certificate fees, annual fees, and examination or testing fees
with respect to plant variety rights shall be prescribed by the
central competent authority.
Article 62
An application for a plant variety right that has not been
examined and approved prior to the date on which this amended
Act takes effect shall be processed in accordance with the
requirements of this amended Act.
Plant variety rights already in effect on the date this amended
Act takes effect shall be treated in accordance with the
requirements of this amended Act.
Article 63
A plant seed enterprise that has obtained a plant seed
enterprise registration certificate prior to the date on which
this amended Act takes effect shall reapply for a plant seed
enterprise registration certificate within 2 years of the date
on which a publication is made by the central competent
authority notifying such enterprise to reapply for the same. If
such enterprise fails to file a reapplication within the
specified period, its registration certificate shall become
invalid, and its registration certificate shall be recorded as
invalid by the competent authority. Moreover, if such enterprise
fails to apply for a re-issuance of its registration certificate
and yet continues to engage in business operations, such
enterprise shall be fined in accordance with the requirements of
Subparagraph 2 of Paragraph 1 under Article 56.
Article 64
The Enforcement Rules for this Act shall be prescribed by the
central competent authority.
Article 65
The effective date of this Act shall be prescribed by the
Executive Yuan. |