REPUBLIC OF THE PHILIPPINES
CONGRESS OF THE PHILIPPINES
First Regular Session
Begun and held in Metro Manila on Monday, the twenty-third of July, two thousand one.
[REPUBLIC ACT NO. 9168]
AN ACT TO PROVIDE PROTECTION TO NEW VARIETIES,
ESTABLISHING A NATIONAL PLANT VARIETY PROTECTION BOARD
AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
SECTION 1. Short Title. – This act shall be known and cited as the “Philippine Plant Variety Protection Act of 2002”.
SECTION 2. Statement of Policies. –
SECTION 3. Definition. –
CONDITIONS FOR THE GRANT OF THE PLANT VARIETY PROTECTION
SECTION 4. – The Certificate of Plant Variety Protection shall be granted for varieties that are:
SECTION 5. Newness. – A variety shall be deemed new if the propagating or harvested material of the variety has not been sold, offered for sale or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety;
However, the requirement of novelty provided for this Act shall not applky to varieties sold, offered for sale or disposed of to others for a period of five (5) years before the approval of this Act; Provided, That application for PVP shall be filed within one (1) year from the approval of this Act.
SECTION 6. Distinctness. – A variety shall be deemed distinct if it is clearly distinguishable from any commonly known variety. The filing of an application for the granting of a plant variety protection or for the entering of a new variety in an official register of variety in the Philippines or in any country, shall render the said variety a matter of public knowledge from the date of the said application. Provided, That the application leads to the granting of Certificate of Plant Variety Protection or the entering of the said other variety in the official register of variety as the case may be.
SECTION 7. Uniformity. – The variety shall be deemed uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficient uniform in its relevant characteristics.
SECTION 8. Stability. – The variety shall be deemed stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
SECTION 9. Variety Denomination. – The variety shall be designated by a denomination which shall be its generic description. In particular, it must be different from any denomination that designates an existing variety of the same plant species or closely related species.
SECTION 10. Right of Priority Over Denomination. – The use of a denomination shall not be granted to a breeder if such denomination has already been registered to another breeder or is being used by a third party in relation to the sale or offering for sale of a particular variety prior to the filing date or priority date of an application for a Certificate of Plant variety protection. In case two (2) or more breeders/applicants apply for the registration of the same denomination, the breeder/applicant who has the earliest filing date or priority date shall have the right to register the same to the exclusion of the other applicant/breeder (3).
SECTION 11. Figures as Denomination. – The denomination must enable the variety to be identified. It may not consist solely of figures except when it is an established practice for designating such a variety.
SECTION 12. Misleading Denomination. – No denomination shall be accepted if it is liable to mislead or to cause confusion concerning the characteristic value or identity of the variety or identity of the breeder.
SECTION 13. Refusal of Denomination. – If the denomination does not satisfy these requirements, its registration shall be refused and the breeder shall be required to propose another denomination within a prescribed period. The denomination shall be registered together with the grant of the breeder’s right.
SECTION 14. Denomination Used in an Application Previously Filed Abroad. – An application filed in this country, the subject matter of which is the same as that of an application previously filed abroad, shall use the same denomination as the latter. However, if such denomination does not conform to the provisions of this Title, the applicant/breeder shall be required to submit a new denomination.
SECTION 15. Obligation to Use Denomination. – Any person, who offers for sale or markets in the Philippines, Propagating material of a variety protected, shall be obliged to use the denomination of that variety, even after the expiration of the breeder’s right therefore except when the rule of prior rights apply.
SECTION 16. Use of Marks. – When a protected variety is offered for sale or marketed, it may be associated with a trademark, trade name or other similar indication with a registered denomination. If such an indication is so associated, the denomination must nevertheless be easily recognizable.
APPLICATIONS TO A PLANT VARIETY PROTECTION
SECTION 17. Entitlement. – Any breeder, with respect to the variety developed, may apply for a plant variety protection and obtain a Certificate of Plant variety Protection upon compliance with the requirements of this Act.
SECTION 18. Co-ownership of the Right. – If two (2) or more persons contribute to the development of a new plant variety, all of them shall be named in the Certificate of Plant Variety Protection and shall be entitled to such rights as agreed upon in writing or in the absence thereof, the rights in proportion to their contribution in the development of plant variety.
SECTION 19. Employee-Employer Relationship. – In case an employee develops a plant variety in the course of his employment as a result of the performance of his regular duty, the plant variety protection shall belong to the employer, unless there is a written stipulation to the contrary.
SECTION 20. First to File Rule. – If two (2) or more persons develop a new plant variety separately and independently of each other, the Certificate of Plan Variety Protection shall belong to the person who files the application first. In case two (2) or more persons file an application for the same plant variety, the right shall be granted to the person who has the earliest filing date or priority date.
SECTION 21. Priority Date. – Any application for a Certificate of Plant Variety Protection previously filed by a breeder in another country, which by treaty, convention or law affords similar privileges to Filipino citizens, shall be considered as filed locally as of the date of filing of the foreign application: Provided, That:
SECTION 22. Foreign Nationals. – For purposes of this Act, a person shall be considered a national of a foreign country if he is a citizen of such country according to its laws, a natural person residing therein, or is a legal entity whose office is registered in such foreign country.
SECTION 23. National Treatment. – Any application filed locally for a Certificate of Plant variety Protection previously granted to a breeder in another country, which by treaty, convention or law affords similar privileges to Filipino citizens, shall be issued a Certificate of Plant Variety Protection upon payment of dues and compliance to all the provisions of this Act. This Act shall also apply to the nationals of foreign countries that are members of intergovernmental organizations or party to any multilateral agreement or convention concerning the granting of intellectual property protection of plant varieties.
EXAMINATION OF THE APPLICATION AND ISSUANCE OF PVP CERTIFICATE
SECTION 24. Contents of the Application. – An application for a Certificate of Plant Variety Protection shall be filed in the manner and on the conditions prescribed in the regulations, and shall include:
SECTION 25. Right of the Applicant to File the Application. – If the applicant is not the actual breeder, he shall indicate in his application the basis for his right to file the application.
SECTION 26. Contents of the Description and Order of Presentation. – The Board shall issue rules and regulations stipulating the contents of the description and the order of presentation.
SECTION 27. Other Information Required. – The applicant shall be required by the Board to furnish information regarding any application filed by him in other countries including all pertinent documents relating thereto. If the applicant has successfully claimed priority according to this Act, he shall be given a period of two (2) years from the priority date to comply with the requirements of this Section.
SECTION 28. Manner of Conducting Tests. – The Board may carry out the necessary tests, cause the conduct of tests, or consider the results of other tests or trials that have already been done. For this purpose, the Board shall require the applicant to furnish all the necessary information, documents or materials within a period of time prescribed in the regulations.
SECTION 29. Filing Date. – For purposes of according a filing date, the Board shall consider, as a minimum requirement, all of the above enumerated items in Section 24 hereof.
SECTION 30. Publication of the Application. – After the Board has accorded a filing date, the application shall be published within sixty (60) days at the expense of the applicant in the Plant variety Gazette hereunder described in Section 72.
Prior to such publication, the application and all related documents shall not be made available to the public without the written consent of the applicant.
After the publication of the application, any person may inspect the application documents in a manner to be prescribed by the Board.
SECTION 31. – Opposition to the Grant of Plant Variety Protection. – Any person who believes that the applicant is not entitled to the grant of the Certificate of Plant Variety Protection may file an opposition thereto within the period prescribed by the Board from the date of its publication and before the issuance of the Certificate of Plant variety Protection.
Opposition to the application may be made on the following grounds:
If the opposition is based on the conditions of Plant Variety Protection, such opposition shall be considered together with the examination of the application.
SECTION 32. Issuance of the Certificate. – When the Board has tested and examined the variety, and/or considered the supporting materials and literature pertinent thereto, it shall issue a Certificate of Plant variety Protection. A notice of such issuance shall be published in the manner to be prescribed in the regulations at the expense of the holder.
SECTION 33. Term of Protection. – For trees and vines, the period of protection shall be twenty-five (25) years from the date of the grant of the Certificate of Plant variety Protection and twenty (20) years from the said date for all other types of plants, unless declared void ab initio or cancelled otherwise, as provided under Section 61 and 62, respectively of this Act.
SECTION 34. Annual Fees. – To maintain the validity of the Certificate of Plant Variety Protection, the holder shall pay an annual fee to be prescribed by the Board. Annual fees shall be paid starting from the fourth anniversary of the issuance of the certificate and every year thereafter within the first three (3) months of said years. The holder has the option to pay in advance this annual fee for a maximum of twenty (20) years.
The Certificate of Plant Variety Protection shall expire and cease to have force and effect upon the holder’s failure to pay the annual fees within the prescribed period. A notice of such cancellation shall be published in the Plant Variety Gazette one (1) year after the term of protection has expired. Before such publication, any holder who fails to pay the annual fees may request for a reinstatement of his certificate. Provided, That he settles his unpaid accounts including surcharges to be determined by the Board.
SECTION 35. Notice of Rejection. – Whenever an application is rejected, the Board shall immediately inform the applicant on the grounds therefore, and when applicable, identify and provide the documents used as the basis for rejection.
RIGHTS OF HOLDERS
SECTION 36. Rights of Holders of Plant Variety Protection. – In respect of the propagating materials, holders of a Certificate of Plant Variety Protection shall have the right to authorized any of the following acts:
SECTION 37. The holder may make his authorization subject to conditions and limitations.
SECTION 38. Acts in Respect of Harvested Materials. – Except for Section 43 and 44 of this Title, the rights in the two (2) preceding sections shall also extend to the harvested materials which may be the entire plant or its other parts, if the production thereof resulted directly from the unauthorized use of the plant’s propagating materials that are covered by this Act, unless the holder has had the reasonable opportunity to exercise his right in relation to the said propagating materials.
SECTION 39. Coverage of Protection. – The rights of holder under Section 36 and 38 of this Act shall also apply in relation to:
SECTION 40. Essentially Derived Varieties. – For the purpose of paragraph 39(a), a variety shall be deemed to be essentially derived from the initial variety when:
SECTION 41. Manner of Developing Essentially Derived Varieties. – It shall also be understood that essentially derived varieties may be obtained through processes which may include, but not limited to, the selection of a natural or induced mutant, or of a somoclonal variant, the selection of a variant individual from plants of initial variety, backcrossing or transformation by genetic engineering. Genetic engineering shall be understood as the introduction of genes by laboratory techniques.
SECTION 42. Provisional Protection. – An application for a Certificate of Plant Variety Protection shall be entitled to equitable renumeration from any person who, during the period between the publication of the application for the certificate and the grant of the certificate, has carried out acts which, once the certificate is granted, require the holder’s authorization as conferred in this Act: Provided, That the applicant shall initiate the legal action against the alleged infringer within two (2) years from the date of the granting of his Certificate of Plant Variety Protection.
SECTION 43. Exceptions to Plant Variety Protection. – The Certificate of Plant Variety Protection shall not extend to:
SECTION 44. Exhaustion of Plant Variety Protection. – The Certificate of Plant Variety Protection shall not extend to acts concerning any material of the protected variety, or a variety covered by the provisions of Section 39 and 40 hereof, which has been sold or otherwise marketed by the breeder or with his consent in the Philippines, or any material derived from the said material, unless it:
SECTION 45. Right of Attribution. – No Certificate of Plant variety Protyection shall be issued without naming the breeder(s) unless this right is protested in writing within one (1) year.
SECTION 46. Succession / Transmission. – The Certificate of Plant Variety Protection shall be considered as a property right and the transmission thereof shall be governed by the law on Property.
SECTION 47. What Constitutes Infringement. – Except as otherwise provided in this Act, any person who without being entitled to do so, performs the following acts:
May be sued by the holder, who may also avail of all relief as are available in any proceeding involving infringements of other proprietary rights. SECTION 48. Where to Commence Action. – Any holder may petition the proper regional trial court for infringement of his plant variety protection as defined in this Act.
SECTION 49. Presumption of Validity. – Certificates of Plant Variety Protection shall be presumed valid and the burden of proof of their invalidity shall rest on the party assailing them.
SECTION 50. Defenses Against Infringement Charges. – The following shall be valid defenses against infringement charges:
SECTION 51. Notice. – No damages shall be awarded unless there is actual or constructive notice made upon the alleged infringer.
SECTION 52. Damages. – The court may award actual, moral, exemplary damages and attorney’s fees according to a proven amount including a reasonable royalty for the use of the protected variety.
SECTION 53. Injunction. – The court may also enjoin the infringer(s) from further performing any act of infringement on the rights of the holder(s) as defined in this Act.
SECTION 54. Court to Order Confiscating of Infringing Materials. – Upon petition by the complainant, the court may order the confiscation of infringing materials, and:
SECTION 55. Prescription. – No recovery of damages for any infringement case shall prosper when the cause of action has reached more than six (6) years from the time the alleged infringement case was committed.
SECTION 56. Criminal penalty. – Any person who violates any of the rights of the holder provided for in this Act may also suffer the penalty of imprisonment of not less than three (3) years but not more than six (6) years and/or a fine of up to three (3) times the profit derived by virtue of the infringement but in no case should be less than One Hundred Thousand pesos (P100,000.00).
SECTION 57. Grounds for the Grant of Compulsory Licensing. – Any interested person may file a petition for compulsory license with the Board at any time after two (2) years from the grant of the Certificate of Plant variety protection under this Act when it is for the public interest to grant such compulsory license, and:
SECTION 58. Scope of Compulsory License. – The Board, upon petition by any interested party and upon proof of any of the foregoing grounds, may issue a decision;
SECTION 59. Duration of the License. – A compulsory license shall be effective until the ground(s) for its issuance has been terminated as determined by the Board motu proprio or upon petition by party or parties and solution by the Board.
SECTION 60. Procedure for Grant. – The Board shall provide in the rules and regulations the manner and procedure for granting compulsory licenses.
CANCELLATION AND NULLITY OF PLANT VARIETY PROTECTION
SECTION 61. Grounds for Nullity. – The Certificate of Plant variety protection be declared void ab initio on any of the following grounds:
The effect of the declaration of nullity is that as if the Certificate of Plant Variety Protection was not issued.
SECTION 62. Grounds for Cancellationy. – The Plant Variety Protection shall be cancelled on any of the following grounds:
SECTION 63. Venue. – Any petition to cancel a Certificate of Plant variety protection shall originally be under the jurisdiction of the Board. Decisions of the Board may be appealable with the Court of Appeals within fifteen (15) days from the date of notice of the Board’s final decision.
SECTION 64. Prescription. – The right to cancel a Certificate of Plant variety Protection shall be instituted at any time within the term of protection of such right.
SECTION 65. Publication. – A notice of the filing of a petition to cancel a Certificate of Plant variety Protection and the final order/decision on the same shall be published in the Plant variety Gazette at the expense of the petitioner.
SECTION 66. National Plant Variety Protection Board. – There is hereby created a National Plant Variety Protection Board which shall be composed of the following or their duly designated representatives:
The members of the Board or their representatives must be Filipino citizens, have good moral character and should not have been convicted of a crime involving moral turpitude.
The Board shall perform the following functions:
SECTION 67. Rule and Regulations. – For the purpose of the preceding section, the Board with representatives from the Senate and House Committees on Agriculture, shall within six (6) months from the effectivity of this Act, prescribe rules and regulations necessary for the implementation of its functions, or reorganize and create units therefore under its control and supervision.
SECTION 68. Fees. – The Board shall prescribe a schedule of fees to be charged against any applicant/breeder in the course of the application for a Certificate of Plant Variety Protection or in the maintenance therefore.
SECTION 69. Coordination and Cooperation with Other Institutions. – For the purpose of verifying certain facts such as but not limited to the requirements of stability, distinctness and uniformity, the Board may enter into agreements with other governmental or non-governmental institutions both domestic and foreign under a set of conditions germane to its functions.
Further, the board shall also designate appropriate state colleges and universities, bona fide research institutions, or appropriate non-governmental research centers as testing centers for the distinctness, uniformity and stability of varieties.
SECTION 70. The PVP Fund. – There is hereby created a PVP Fund, hereinafter referred to as the fund, to be administered by the Board. All fees, fines and charges collected by the Board under this Act, shall be deposited in the fund. The Board is hereby authorized to use and disburse the fund without need of approval by any government agency, and subject only to existing accounting and auditing rules and regulations for purposes of defraying the cost of operations in the delivery of its services to the public.
SECTION 71. Gene Trust Fund. – There shall be an independent and separate trust fund established under this Act, to be administered by the Board, for the benefit of bona fide organizations or institutions managing and operating an accredited gene bank. An amount to be determined by the Board but not to exceed twenty percent (20%) of the fees and charges, shall be used for the purposes of the gene trust fund. The trust fund may also accept donations from national and international institutions and other organizations and individuals interested in strengthening genetic conservation.
SECTION 72. Farming Communities and Bona Fide Farmers’ Organizations. – Farming communities and bona fide farmers’ organizations are encouraged to build an inventory of locally-bred varieties as an option to protect these resources from misappropriation and unfair monopolization.
SECTION 73. Publication. – The Board shall maintain its own publication which shall be known as the Plant variety gazette for all the publication requirements of this Act and for other purposes which the Board may require. Copies shall be distributed to all concerned especially to the Members of the Senate and House Committees on Agriculture: Provided: That the Board shall distribute for free, and in the major dialect understood by the locality, copies of the Plant Variety Gazette to small farmer groups and indigenous communities.
SECTION 74. The Registrar. – There is hereby established a National Plant Variety Protection Registrar and an Associate Registrar under the control and supervision of the Board. The Registrar and the Associate Registrar shall be appointed by the President of the Philippines upon the recommendation of the Board and shall have a term of six (6) years. However, the Registrar who shall be first appointed shall serve for a term of seven (7) years.
The Registrar hall be a citizen of the Philippines with good moral character, proven track record in the field of plant science, and/or extensive executive experience and capability.
Functions of the Registrar. The Registrar shall have the following functions:
MISCELLANEOUS AND FINAL PROVISIONS
SECTION 75. Relation with Other Laws. – The interpretation of the provisions of this Act shall not negate the effectivity and application of Republic Act No. 8371 otherwise known as the Indigenous People’s Rights Act, Republic Act No. 9147, otherwise known as The Wildlife Resources Conservation and protection Act, Presidential Decree No. 1151, otherwise known as the Philippine Environmental Policy and Executive Order No. 430 and Administrative Order No. 8, Series of 2002 of the Department of Agriculture of the rules and regulations for the importation and release to the environment of plant products derived from the use of biotechnology.
SECTION 76. Transitory Provisions. – The National Seed Industry Council, which was created by Republic Act No. 7308 or the National Seed Development Act, shall perform the functions of the Board until the latter has been fully organized, but not later than three (3) years from the effectivity of this Act. Within the same period, the Director of the Bureau of Plant Industry shall be the Acting Registrar and the Assistant Director of the same Bureau shall act as the Associate Registrar.
SECTION 77. Appropriations. – The Secretary of the Department of Agriculture shall immediately include in its program and issue such rules and regulations to implement the provisions of this Act, the funding of which shall be included in the annual General Appropriations Act.
SECTION 78. Separability Clause. – If, for anu reason, any provision of this Act is declared invalid or unconstitutional, the other parts not affected thereby shall continue to be in full force and effect.
SECTION 79. Repealing Clause. – All laws, decrees, executive orders, and rules and regulations, or parts thereof that are inconsistent with the provisions of this Act, are hereby repealed or modified accordingly.
SECTION 80. Effectivity. – This Act shall take effect thirty (30) days after its complete publication in a newspaper of general circulation.
ORIGINAL SIGNED ORIGINAL SIGNED
JOSE DE VENECIA FRANKLIN M. DRILON
Speaker of the House of Representatives President of the Senate
This Act, which is a consolidation of Senate Bill No. 1865 and House Bill No. 4518, was finally passed by the Senate and the House of Representatives on May 30, 2002 and May 29, 2002, respectively.
ORIGINAL SIGNED ORIGINAL SIGNED
ROBERTO P. NAZARENO OSCAR G. YABES
Secretary General Secretary of the Senate
Approved: June 07, 2002
President of the Philippines
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