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PROCEDURE AND CONDITIONS FOR APPLICATION OF
REGISTRATION OF NEW PLANT VARIETY
AND GRANT OF BREEDER'S RIGHT

Application for registration of new plant variety and grant of breeder's right

12. (1) An application for the registration of a new plant variety and a grant of a breeder's right shall be made to the Board in the prescribed manner and shall—

(a) specify the name, address, nationality and other particulars of the applicant;

(b) specify the method by which the plant variety is developed;

(c) be supported by documents and information relating to the characteristics of the plant variety which distinguish the plant variety from other plant varieties;

(d) specify a plant variety denomination in accordance with section 16;

(e) contain information relating to the source of the genetic material or the immediate parental lines of the plant variety;

(f) be accompanied with the prior written consent of the authority representing the local community or the indigenous people in cases where the plant variety is developed from traditional varieties;

(g) be supported by documents relating to the compliance of any law regulating access to genetic or biological resources; and

(h) be supported by documents relating to the compliance of any law regulating activities involving genetically modified organisms in cases where the development of the plant variety involves genetic modification.

(2) An application under subsection (1) shall be accompanied by the prescribed filing fee.

Persons who may apply for registration of new plant variety and grant of breeder's right

13. (1) An application for the registration of a new plant variety and grant of a breeder's right under section 12 shall only be made by-

(a) a breeder;

(b) the employer of the breeder;

(c) the successor in title of the breeder;

(d) a farmer or group of farmers, local community or indigenous people who have carried out the functions of a breeder;

(e) any government or statutory body which has carried out the functions of a breeder.

(2) If the applicant's ordinary residence or principal place of business is outside Malaysia or if the applicant is a group of farmers, the applicant shall appoint an agent who is a resident or who has a registered office in Malaysia upon whom notice or process relating to the application for registration and grant of a breeder's right and other matters relating to such registration or breeder's right may be served, and if the applicant fails to appoint such an agent, the Board may refuse to proceed with the application until the agent has been appointed.

(3) If the applicant is a local community or an indigenous people, the authority representing the local community or indigenous people shall be the agent for such applicant and notice or process relating to the application and other matters relating to the registration of a new plant variety or breeder's right may be served on it.

Conditions for registration of new plant variety and grant of breeder's right

14. (1) Subject to sections 15 and 16, a plant variety shall be registered as a new plant variety and granted a breeder's right if the plant variety is new, distinct, uniform and stable.

(2) Notwithstanding subsection (1), where a plant variety is bred, or discovered and developed by a farmer, local community or indigenous people, the plant variety may be registered as a new plant variety and granted a breeder's right if the plant variety is new, distinct and identifiable.

(3) For the purposes of subsections (1) and (2)—

(a) a plant variety is new if on the filing date of the application for registration and grant of a breeder's right, the propagating or harvested material of the plant variety has not been sold or otherwise disposed of on a commercial basis by or with the consent of the breeder—

(i) within Malaysia, earlier than one year before the filing date of the application for registration of a new plant variety and grant of a breeder's right; and

(ii) in other countries —

(A) earlier than six years before the filing date of the application for registration of a new plant variety and grant of a breeder's right in respect of trees and vines; and

(B) earlier than four years before the filing date of the application for registration of a new plant variety and grant of a breeder's right in respect of other plant varieties;

(b) a plant variety is distinct if on the filing date of the application for registration of a new plant variety and grant of a breeder's right it is clearly distinguishable from any other plant variety, the existence of which is a matter of common knowledge;

(c) a plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics;

(d) a plant variety is 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 particular cycle;

(e) a plant variety is identifiable if—

(i) it can be distinguished from any other plant grouping by the expression of one characteristic and that characteristic is identifiable within individual plants or within and across a group of plants; and

(ii) such characteristics can be identified by any person skilled in the relevant art.

Prohibition of registration and grant of breeder's right

15. The Board shall not approve the registration of a new plant variety and grant of a breeder's right to any person in respect of any plant variety —

(a) which may affect public order or morality; or

(b) where there is reasonable ground to believe that the cultivation, reproduction or any other use of that plant variety may produce a negative impact on the environment.

Denomination of a new plant variety

16. (1) The denomination of a plant variety the registration of which by the Board is applied for—

(a) shall be the generic designation of the plant variety;

(b) must enable the plant variety to be identified;

(c) shall not exclusively consist of numerals; and

(d) shall be different from other plant variety denominations which identify an existing plant variety of the same plant species or a closely related species.

(2) The Board may reject any denomination of a plant variety which —

(a) does not satisfy the requirements of subsection (1);

(b) is contrary to public order or morality;

(c) is not suitable for the identification of the plant variety; or

(d) may cause confusion concerning the characteristics or the identity of the breeder of the plant variety.

(3) Where a denomination of a plant variety is rejected by the Board under subsection (2), the Board may require the applicant to furnish a new denomination within a specified time.

(4) If a new denomination as required under subsection (3) is not furnished by the applicant within the time specified by the Board, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without prejudice to a fresh application being made by the applicant.

(5) The denomination of a registered plant variety shall be used when the plant variety is offered for sale on a commercial basis and if a trade mark, trade name or other similar indication is used together with the denomination, the denomination of that registered plant variety must remain easily recognizable.

(6) Notwithstanding the expiration of the duration of the breeder's right in respect of a plant variety, any person who offers for sale on a commercial basis any propagating material of a registered plant variety shall continue to use the denomination of that registered plant variety.

Filing date

17. The filing date of an application for the registration of a new plant variety and grant of a breeder's right shall be the date of receipt of the application by the Board on condition that the application has complied with the requirements of section 12.

Right of priority

18. Subject to section 17, where two or more applications for the registration of a new plant variety and grant of a breeder's right are received by the Board in respect of the same plant variety, priority shall be given to the application that is accorded an earlier filing date by the Board.

Preliminary examination

19. (1) Where an application for the registration of a new plant variety and grant of a breeder's right has a filing date and the application is not withdrawn, the Board shall examine the application and determine whether it complies with the requirements of sections 15 and 16.

(2) If the Board, as a result of the examination under subsection (1), finds that the requirements of sections 15 and 16 are not complied with, the Board shall give an opportunity to the applicant to make any observation on such finding and to amend the application within the specified period so as to comply with those requirements, and if the applicant fails to do so, the Board may refuse the application.

(3) If the Board, as a result of the examination under subsection (1), finds that the requirements of sections 15 and 16 have been complied with, the Board shall notify the applicant in writing as soon as practicable.

Request for substantive examination

20. (1) If an application for the registration of a new plant variety and grant of a breeder's right has been examined under section 19 and the applicant has been notified under subsection 19(3), the applicant shall file within the specified period a request for a substantive examination of the application.

(2) A request for a substantive examination under subsection (1)—

(a) shall be made in the prescribed form;

(b) shall be accompanied with the prescribed fee; and

(c) if requested by the Board, shall provide the specified quantities of propagating materials required for the purposes of the substantive examination.

Substantive examination

21. (1) Where a request for substantive examination has been made under section 20, the Board shall refer the application to an Examiner who—

(a) shall determine whether the application complies with the requirements of section 14; and

(b) shall report his determination to the Board.

(2) If the Examiner reports in accordance with subsection (1) that the requirements of section 14 are not complied with, the Board shall give the applicant an opportunity to make observations on the report and to amend the application so as to comply with the requirement within the specified period.

(3) If the applicant fails to satisfy the Board within the specified period that the requirements of section 14 are complied or to amend the application so as to comply with the requirements, the Board shall reject the application for the registration of a plant variety and grant of a breeder's right.

(4) If the Examiner reports in accordance with subsection (1) that the application as originally filed or as amended complies with the requirements of section 14, the Examiner shall inform the Board in writing of the findings of his examination.

Application for registration of new plant variety and grant of breeder's right to be published

22. If the Board is satisfied that an application for the registration of a new plant variety and grant of a breeder's right has complied with the requirements of this Act, the Board shall cause the application to be published in the Gazette.

Opposition to application for registration of a new plant variety and grant of breeder's right

23. (1) Any interested person may, within three months from the date of publication of an application for the registration of a new plant variety and grant of a breeder's right, give notice to the Board and the applicant of his intention to oppose the application on any or any combination of the following grounds:

(a) that the person opposing the application is entitled to the breeder's right as against the applicant;

(b) that the application for the registration of the new plant variety and grant of a breeder's right does not comply with the requirements of this Act;

(c) that the application for the registration of the new plant variety and grant of a breeder's right is contrary to public order or morality;

(d) that the application for the registration of the new plant variety and grant of a breeder's right may produce a negative impact on the environment.

(2) The notice shall be in writing in the manner to be specified by the Board in writing and shall include a statement of the grounds of opposition.

Reply by applicant

24. (1) The applicant shall within thirty days after the receipt of the notice of opposition send a reply to the Board and the opponent, in the manner to be specified by the Board in writing, stating the grounds for his application for registration and grant of a breeder's right.

(2) If the applicant fails to reply to the opposition within the period specified in subsection (1) or, if the period has been extended by the Board, within the additional period, the applicant shall be deemed to have abandoned his application for the registration of the new plant variety and grant of a breeder's right.

Filing of documentary evidence in support

25. (.1.) Where the applicant submits a reply under subsection 24(1), the opponent and the applicant shall file documentary evidence in support of the opposition or the application for the registration of the new plant variety and grant of a breeder's right, as the case may be, with the Board.

(2) Any documentary evidence to be filed by the opponent or the applicant under subsection (1) shall be filed within the time and in the manner to be specified by the Board in writing.

(3) Where the applicant files the documentary evidence in support of his application, the opponent may be given an opportunity, within the time to be specified by the Board in writing, to submit to the Board and applicant evidence in reply to be adduced in the manner to be specified by the Board in writing.

(4) After considering the documentary evidence filed by the opponent and applicant, and after giving both parties an opportunity to make submissions, the Board shall decide whether—

(a) to reject the application for the registration of the new plant variety and grant of breeder's right; or

(b) to approve the application.

(5) The Board shall, within two months after making a decision under subsection (4), give its grounds of decision in writing.

Failure to file documentary evidence

26. (1) If the applicant fails to file the documentary evidence as required under subsection 25(1), the Board may treat the application for the registration of the new plant variety and grant of a breeder's right as abandoned.

(2) Where the opponent fails to file the documentary evidence as required under subsection 25(1), the Board may treat the opposition as abandoned and shall approve the application for the registration of the new plant variety and grant of a breeder's right.

Deposit of samples

27. If an application for the registration of the new plant variety and grant of a breeder's right has been approved by the Board and the applicant has been notified in writing, the applicant shall, within the time specified by the Board, deposit samples of the seed or any other propagating material of the plant variety in the quantity to be specified by the Board at a centre approved by the Board.

Registration of new plant variety and grant of breeder's right

28. (1) If the Board is satisfied that the applicant has complied with requirements of section 27, the Board shall register the new plant variety and grant the breeder's right to the applicant and shall—

(a) issue a certificate of registration of the new plant variety and grant of a breeder's right to the applicant in the prescribed form;

(b) record the denomination of the new plant variety and the registration of the new plant variety and grant of a breeder's right in the Register of New Plant Varieties; and

(c) publish in the Gazette a reference to the registration of the new plant variety and grant of a breeder's right.

(2) The contents of the certificate of a breeder's right shall be prima facie evidence of the facts stated therein and the duration of the protection granted,

Register

29. (1) The Board shall keep and maintain a register called the Register of New Plant Varieties.

(2) The Register shall be kept in such form and shall contain such particulars as may be specified by the Board.

(3) The Register shall be available to the public for inspection subject to such conditions as the Board deems fit.

(4) A copy or extract of any entry in the Register duly certified by the Secretary to the Board shall be given to any person requiring the copy or extract upon payment of the prescribed fee.

Back to top | Application for registration |Persons who may apply for registration|Conditions for registration 
Prohibition of registration |Denomination of a new plant variety |Filing date |Right of priority 
Preliminary examination |Request for substantive examination |Substantive examination 
Application for registration to be published |Opposition to application for registration |Reply by applicant | Filing of documentary evidence in support |Failure to file documentary evidence 
Deposit of samples |Registration of new plant variety and grant of breeder's right |Register