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RIGHTS, LIMITATIONS AND DUTIES OF A HOLDER

Scope of breeder's right

30. (1) Subject to section 31, a holder of a breeder's right shall, in respect of the registered plant variety for which the right is granted, have the right to carry out all or any of the following acts on a commercial basis:

(a) producing or reproducing;

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) marketing, inclusive of selling;

(e) exporting;

(f) importing;

(g) stocking the material for the purposes mentioned in paragraphs (a) to (f).

(2) The breeder's right shall also extend to—

(a) any propagating material of the registered plant variety, harvested material of the registered plant variety and the entire or any part of a plant variety where the propagating material of that plant variety is obtained through unauthorized means from the registered plant variety;

(b) plant varieties which are essentially derived from the registered plant variety, if the registered plant variety is not essentially derived from another plant variety;

(c) plant varieties which are not clearly distinguishable from the registered plant variety; or

(d) the production of other plant varieties which require the repeated use of the registered plant variety.

(3) For the purposes of paragraph 30(2)(a), "unauthorized" in relation to the propagating material means it is obtained without the consent or permission of the holder.

Limitations of breeder's right

31. (1) The breeder's right shall not extend to—

(a) any act done privately on a non-commercial basis;

(b) any act done for an experimental purpose;

(c) any act done for the purpose of breeding other plant varieties and any act referred to in paragraphs 30(1)(a) to (g) in respect of such other plant varieties, except where such other plant varieties have been essentially derived from the registered plant variety;

(d) any act of propagation by small farmers using the harvested material of the registered plant variety planted on their own holdings;

(e) any exchange of reasonable amounts of propagating materials among small farmers; and

(f) the sale of farm-saved seeds in situations where a small farmer cannot make use of the farm-saved seeds on his own holding due to natural disaster or emergency or any other factor beyond the control of the small farmer, if the amount sold is not more than what is required in his own holding.

(2) The breeder's right granted under section 30 shall not apply to any material of the registered plant variety or any material derived from that material which has been sold within Malaysia on a commercial basis by the breeder or by any other person with his consent, unless such material is used for purposes involving—

(a) the further propagation of the registered plant variety; or

(b) the export of the material to a country which does not protect varieties of the plant genus or species to which the variety belongs and where the exported material is not for final consumption.

Duration of breeder's right

32. (1) The breeder's right to a registered plant variety shall take effect from the filing date of an application for the registration of the plant variety and grant of breeder's right and shall subsist for a period of—

(a) twenty years for a registered plant variety that is new, distinct, uniform and stable; or

(b) fifteen years for a registered plant variety that is new, distinct and identifiable.

(2) Notwithstanding the provisions of subsection (1), where an application for the registration of a new plant variety and grant of breeder's right is made in respect of trees or vines, and the application has complied with the provisions of this Act, the Board may register the plant variety and grant breeder's right for a duration of twenty-five years.

Extension of duration of breeder's right

33. (1) Notwithstanding the provisions of section 32, the Board may extend the duration of a breeder's right granted if the Board is satisfied that such extension is desirable on the ground of national needs and interests.

(2) An application for the extension of the duration of a breeder's right under subsection (1) shall be made in writing to the Board by the holder before the expiry of the duration of that breeder's right.

Availability of propagating material

34. The holder shall ensure that the propagating material, which is of reasonable quality, of the registered plant variety is available in reasonable quantities within three years from the date of application for registration of the new plant variety and grant of a breeder's right and at such reasonable price as may be determined by the Board.

Duties of a holder

35. (1) The holder shall throughout the duration of the breeder's right—

(a) maintain at his expense samples which have been deposited at a centre approved by the Board under section 27;

(b) furnish the Board with the propagating material of the registered plant variety which is capable of reproduction whenever requested by the Board;

(c) provide the Board with facilities and information regarding the registered plant variety, without any charge, whenever requested by the Board.

(2) For the purposes of paragraph 35(1)(c), "facilities" includes the facilities for carrying out an inspection.

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