PROTECTION OF NEW PLANT VARIETIES ACT 2004

Protection of New Plant Varieties LAWS OF MALAYSIA Reprint Act 634 Protection of new plant varieties act 2004 Incorporating all amendments up to 1 January 2006 Published by The Commissioner of Law revision, Malaysia Under the Authority of the Revision of Laws Act 1968 in Collaboration with Percetakan Nasional Malaysia Bhd 2006   Protection of new plant varieties act 2004 Date of Royal Assent ... … … … 25 June 2004 Date of publication in the Gazette … 1 July 2004  LAWS OF MALAYSIA Act 634 PROTECTION OF NEW PLANT VARIETIES ACT 2004 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 2. Interpretation Part II PLANT VARIETIES BOARD 3. Establishment of the Board 4. Functions and powers of the Board 5. Membership of the Board 6. Alternate member 7. Meetings of the Board 8. Board may invite others to meetings 9. Provision of facilities by Ministry 10. Plant Varieties Fund 11. Expenditure to be charged on the Fund Part III PROCEDURE AND CONDITIONS FOR APPLICATION OF REGISTRATION OF NEW PLANT VARIETY AND GRANT OF BREEDER’S RIGHT 12. Application for registration of new plant variety and grant of breeder’s right  Laws of Malaysia Act 634 Section 13. Persons who may apply for registration of new plant variety and grant of breeder’s right 14. Conditions for registration of new plant variety and grant of breeder’s right 15. Prohibition of registration and grant of breeder’s right 16. Denomination of a new plant variety 17. Filing date 18. Right of priority 20. Request for substantive examination 19. Preliminary examination 21. Substantive examination 22. Application for registration of new plant variety and grant of breeder’s right to be published 23. Opposition to application for registration of a new plant variety and grant of breeder’s right 24. Reply by applicant 25. Filing of documentary evidence in support 26. Failure to file documentary evidence 27. Deposit of samples 28. 29. Registration of new plant variety and grant of breeder’s right Register Part IV RIGHTS, LIMITATIONS AND DUTIES OF A HOLDER 30. Scope of breeder’s right 31. Limitations of breeder’s right 32. Duration of breeder’s right 33. Extension of duration of breeder’s right 34. Availability of propagating material 35. Duties of a holder Part V COMPULSORY LICENCE 36. Compulsory licence Protection of New Plant Varieties  Section 37. Scope and conditions of compulsory licence 38. Termination of compulsory licence Part VI INVALIDATION, REVOCATION, SURRENDER AND ASSIGNMENT OR TRANSMISSION 39. Invalidation of breeder’s right 40. Date and effect of invalidation 41. Revocation of breeder’s right 42. Surrender of breeder’s right 43. Assignment or transmission of breeder’s right Part VII APPEALS 44. Appeals 45. Appeal Board 46. Decision of the Minister Part VIII INFRINGEMENT 47. Acts deemed to be infringement 48. Infringement proceedings 49. Injunction and award of damages Part IX OFFENCES 50. Offence with respect to furnishing any false or misleading particular, etc. 51. Offence with respect to contravention of terms and conditions and use of samples without permission 52. Offence by body corporate  Laws of Malaysia Part X ENFORCEMENT Section 53. Authorization of officers 54. Power of enforcement 55. Power of investigation 56. Additional powers Part XI MISCELLANEOUS 57. Institution of prosecution 58. Jurisdiction to try offences 60. Regulations 59. Protection of officers Act 634  Protection of New Plant Varieties LAWS OF MALAYSIA Act 634 *PROTECTION OF NEW PLANT VARIETIES ACT 2004 An Act to provide for the protection of the rights of breeders of new plant varieties, and the recognition and protection of contribution made by farmers, local communities and indigenous people towards the creation of new plant varieties; to encourage investment in and development of the breeding of new plant varieties in both public and private sectors; and to provide for related matters. [ ] ENACTED by the Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Protection of New Plant Varieties Act 2004. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Interpretation 2. In this Act, unless the context otherwise requires— “propagating material” means any material or plant, or any part of the plant, used for multiplication or reproduction; “breed” means to carry out activities conducive to the development of any plant variety; *NOTE—This Act is not yet in force.  Laws of Malaysia Act 634 “prescribed” means prescribed by regulations made under this Act; “breeder’s right” means the right given on the registration of a new plant variety under this Act; “Ministry” means the Ministry for the time being responsible for agriculture; “Fund” means the Plant Varieties Fund established under section 10; “Board” means the Plant Varieties Board established under section 3; “compulsory licence” means the authorization by the Board under section 36 to perform in Malaysia any act referred to in subsection 30(1) without the consent or agreement of the holder; “local community” means a group of individuals who have settled together and continuously inherit production processes and culture or a group of individuals settled together in a village or area and under an eco-cultural system; “discover and develop” means activities which lead to the desired phenotypic expression and affect the crop genotype and which may or may not entail deliberate or artificial creation of genetic variability; “Minister” means the Minister charged with the responsibility for plant varieties; “denomination” means the name or identification for a plant variety expressed in letters or a combination of letters and figures written in any language; “person” includes a body of persons, corporate or unincorporate; “authorized officer” means an officer authorized under subsection 53(1); Protection of New Plant Varieties  “breeder” means a person who has bred or has discovered and developed any plant variety; “holder” means the holder of a breeder’s right; “licensee” means any person, agency or company to whom a compulsory licence is granted by the Board under section 36; “Examiner” means any person, government department or organization appointed by the Board for the purpose of conducting a substantive examination under section 21; “farmer” means any person who— (a) cultivates crops by cultivating the land himself; (b) cultivates crops by directly supervising the cultivation of land through any other person; or (c) conserves and preserves, severally or jointly, with any person any traditional variety of crops or adds value to the traditional variety through the selection and identification of their useful properties; “small farmer” means a farmer whose farming operations do not exceed the size of holding as prescribed by the Minister; “indigenous people” means persons who fall within the definition of the “aborigine” or “native” as defined respectively in Clause (2) of Article 160 and Clause (6) of Article 161a of the Federal Constitution; “centre” means any place approved by the Board for the deposit of any sample of seeds or propagating material under section 27; “samples” include seeds and any other propagating material which are capable of regeneration; “plant” means any living organism in the plant kingdom but excludes any micro-organism; “variety” means a plant grouping within a single botanical taxonomy of the lowest known rank— (a) which can be defined by the expression of the characteristics resulting from a given genotype or a combination of genotypes; 10 Laws of Malaysia Act 634 (b) which can be distinguished from any other plant grouping by the expression of at least one of such characteristics; and (c) which can be considered as a unit with regard to its suitability for being propagated unchanged, and includes propagating material and harvested material of the plant variety; “essentially derived plant variety” means a plant variety which— (a) is predominantly derived from the initial plant variety, or from a plant variety that is itself predominantly derived from the initial plant variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial plant variety; (b) is clearly distinguishable from the initial plant variety; and (c) except for the differences which result from the act of derivation, conforms to the initial plant variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial plant variety; “registered plant variety” means a plant variety which has been registered as a new plant variety and for which a breeder’s right has been granted under this Act; “legal personal representative”, in relation to a deceased person, means a person to whom probate of the will of the deceased person or letters of administration of the estate of the deceased person have been granted whether in Malaysia or outside Malaysia. Part II PLANT VARIETIES BOARD Establishment of the Board 3. A board by the name of “Plant Varieties Board” is established. Protection of New Plant Varieties 11 Functions and powers of the Board 4. (1) The functions of the Board shall be— (a) to perform the duties and functions and exercise the powers as may be provided for in this Act; (b) to set appropriate systems for the examination of new plant varieties; (c) to consider and approve or reject applications for registration of new plant varieties and grant of breeder’s rights; (d) to impose fees or administrative charges to be paid under this Act; (e) to set terms and conditions pertaining to the samples of registered plant varieties deposited at centres approved by the Board under section 27; (f) to impose any terms and conditions for the research and experimental use or export of any registered plant variety developed from local genetic resources or by indigenous people; (g) to keep and maintain a record of other plant varieties which are not registered in the Register of New Plant Varieties; (h) to administer and control the Plant Varieties Fund; (i) to appoint any person, government department or organization to be an Examiner for the purposes of conducting a substantive examination under section 21; (j) to revoke, surrender, assign or transmit any breeder’s right granted under this Act; (k) to advise the Minister on all matters pertaining to this Act; and (l) to do such other things as it considers fit to enable it to perform its functions effectively or that are incidental to the performance of its functions. (2) The Board shall have all such powers as may be necessary for or in connection with the performance of its functions under subsection (1) or which are reasonably incidental to such performance. 12 Laws of Malaysia Act 634 Membership of the Board 5. (1) The Board shall consist of the following members: (a) the Director General of the Department of Agriculture, Peninsular Malaysia who shall be the Chairman; (b) the Director General of the Malaysian Agricultural Research and Development Institute; (c) the Director General of the Malaysian Rubber Board; (d) the Director General of the Malaysian Palm Oil Board; (e) the Director General of the Malaysian Cocoa Board; (f) the Director General of the Forest Research Institute of Malaysia; (g) the Director of Agriculture, Sabah; (h) the Director of Agriculture, Sarawak; (i) a representative from the Ministry of Agriculture and Agro-based Industry; (j) a representative from the Ministry of Plantation Industries and Commodities; (k) a representative from the Ministry of Domestic Trade and Consumer Affairs; and (l) a representative from the Ministry of Science, Technology and Innovations. (2) The Minister shall appoint a senior officer of the Depa