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INVALIDATION,REVOCATION,SURRENDER AND ASSIGNMENT OR TRANSMISSION

Invalidation of breeder's right

39. (1) Any interested person may institute court proceedings against the holder to invalidate the registration of a new plant variety and grant of a breeder's right.

(2) The court shall invalidate a breeder's right if the person requesting the invalidation proves that —

(a) the holder has furnished to the Board false or misleading information or statement in respect of the application for registration of the new plant variety and grant of a breeder's right;

(b) the holder has not complied with the requirements of this Act; or

(c) the breeder's right does not belong to the person to whom the breeder's right was granted.

(3) Notwithstanding subsection (2), the court shall not invalidate the registration of a new plant variety and grant of a breeder's right on the ground mentioned in paragraph 39(2)(c) if the breeder's right has been assigned to the person to whom the breeder's right belongs.

(4) If the provisions of subsection (1) apply to only some of the claims or some parts of a claim, such claims or parts of a claim may be declared invalid by the court and the invalidity of part of a claim shall be declared in the form of a correspending limitation of the claim in question.

Date and effect of invalidation

40. (1) When the decision of the court becomes final, the Registrar of the court shall notify the Board and the Board shall record the invalidation on the certificate of registration of the new plant variety and grant of a breeder's right and in the Register of New Plant Varieties and publish the fact of such invalidation in the Gazette.

(2) Any invalidated certificate of registration and grant of a breeder's right or claim or part of a claim shall be regarded as null and void from the date of the grant of the breeder's right.

Revocation of breeder's right

41. (1) The Board may revoke a breeder's right granted to a holder if—

(a) the holder fails to provide the Board within the period specified by the Board in writing with the information, facilities or propagating materials deemed necessary by the Board for the maintenance of the samples deposited at a centre approved by the Board when requested by the Board;

(b) the holder fails to pay any fees payable to the Board to keep his breeder's right in force;

(c) the registered plant variety fails to demonstrate continuously the conditions for which the registration was made and breeder's right was granted;

(d) the holder contravenes any of the terms and conditions imposed on him as a holder; or

(e) the holder uses or causes to be used any sample of a registered plant variety deposited at a center under section 27 without the prior written permission of the Board.

(2) Before revoking a breeder's right, the Board shall give the holder a notice in writing requiring the holder to show cause within fourteen days as to why his breeder's right should not be revoked.

(3) After the expiry of the period of fourteen days and after considering any representations made by the holder, the Board shall decide whether to revoke the protection or to take no further action.

(4) The Board shall give the holder a written notice of its decision under subsection (3).

(5) The revocation of a breeder's right shall take effect--

   (a) if there is no appeal against the revocation, on the expiration of fourteen days from the date on which the notice of revocation is served on the holder; or

(b) if there is an appeal against such revocation, when the revocation is confirmed by the Minister under section 46.

(6) If a breeder's right is revoked under subsection (1), the Board shall—

(a) direct the holder to return the certificate of registration of the new plant variety and grant of a breeder's right to the Board; and

(b) have the power to authorize any person to undertake the production of the plant variety for reasons of public interest.

(7) The Board shall record the revocation on the certificate of registration of the new plant variety and grant of a breeder's right and in the Register of New Plant Varieties and publish the fact of such revocation in the Gazette.

Surrender of breeder's right

42. (1) A holder may surrender his breeder's right by submitting a written request to the Board together with the certificate of registration of the new plant variety and grant of a breeder's right.

(2) The surrender shall take effect on the date the Board receives the certificate of registration and grant of a breeder's right pursuant to the written request under subsection (1).

(3) The Board may impose any terms and conditions as it deems fit in respect of the surrender.

(4) The Board shall record the surrender in the Register of New Plant Varieties and publish the fact of such surrender in the Gazette.

Assignment or transmission of breeder's right

43. (1) A breeder's right or an application for the registration of a plant variety and grant of a breeder's right may be assigned or transmitted with the approval of the Board to —

(a) the legal personal representative of the holder or the applicant for such registration and grant; or

(b) any person entitled by operation of law to such assignment or transmission.

(2) The application for the assignment or transmission of a breeder's right shall be—

(a) made in the manner to be specified by the Board in writing; and

(b) accompanied with the prescribed fee.

(3) The Board may approve the assignment or transmission of the breeder's right if—

(a) it is in writing signed by or on behalf of the contracting parties; or

(b) the holder or the applicant for the registration of a new plant variety and grant of a breeder's right dies or becomes incapacitated.

(4) Before granting its approval for the assignment or transmission of a breeder's right, the Board shall publish in the Gazette the details of the application and provide a reasonable period of time for any objection to the application for the assignment or transmission.

(5) The assignment or transmission of a breeder's rights shall be recorded in the Register of New Plant Varieties and the fact of such assignment or transmission shall be published in the Gazette.

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