Lecture
The right to a breeding achievement is protected by law and is confirmed by a patent for the breeding achievement.
The patent certifies the exclusive right of the patent holder to use the breeding achievement.
The State Commission of the Russian Federation for the Testing and Protection of Breeding Achievements (hereinafter - the State Commission) shall, in accordance with this Law, implement a unified policy in the field of the legal protection of breeding achievements in the Russian Federation, accept applications for breeding achievements for consideration, conduct examinations and tests on them, maintain the State Register of Protected Breeding Achievements and the State Register of Breeding Achievements Approved for Use, issue patents and authors' certificates, publish official information concerning the protection of breeding achievements, issue rules and clarifications on the application of this Law, and perform other functions in accordance with the regulations governing it approved by the Government of the Russian Federation.
A breeding achievement for which the State Commission has issued a patent shall be registered in the State Register of Protected Breeding Achievements.
The scope of the legal protection afforded by a patent for a breeding achievement is determined by the totality of the essential characteristics recorded in the description of the breeding achievement.
The term of a patent for a breeding achievement is 30 years from the date of registration of that achievement in the State Register of Protected Breeding Achievements. For grape varieties, ornamental woody plants, fruit crops and forest species, including their rootstocks, the term of the patent is 35 years.
The criteria for the protectability of a breeding achievement are:
(a) novelty.
A variety or breed is considered new if, as at the date of filing of the application for the grant of a patent, the seeds or breeding material of that breeding achievement have not been sold or otherwise transferred to other persons by the breeder, his successor in title, or with their consent, for the purpose of exploiting the breeding achievement:
in the territory of the Russian Federation - earlier than one year before that date;
in the territory of another State - earlier than four years or, in the case of grapes, ornamental woody plants, fruit crops and forest species, - earlier than six years before that date;
(b) distinctness.
A breeding achievement must be clearly distinguishable from any other commonly known breeding achievement existing at the time the application is filed.
A commonly known breeding achievement may be a breeding achievement that is included in official catalogues or a reference collection, or that has a precise description in one of the publications.
The filing of an application for the grant of a patent or for approval for use also renders a breeding achievement commonly known as from the date of filing of the application, provided that a patent was granted for the breeding achievement or that the breeding achievement was approved for use;
(c) uniformity.
The plants of a variety and the animals of a breed must be sufficiently uniform in their characteristics, allowing for individual variations that may occur owing to the particular features of propagation;
(d) stability.
A breeding achievement is considered stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular propagation cycle, at the end of each propagation cycle.
The right to file an application for the grant of a patent belongs to the breeder or his successor in title. The application is filed with the State Commission.
Where a breeding achievement has been bred, created or discovered in the performance of an employment assignment or employment duties, the right to file an application for the grant of a patent belongs to the employer, unless the contract between the breeder and the employer provides otherwise.
An application may be filed by several applicants if they jointly bred, created or discovered the breeding achievement or are the successors in title of the authors.
An application may be filed through an intermediary who, by virtue of powers based on a power of attorney, conducts the affairs connected with obtaining the patent.
Employees of the State Commission and of its subdivisions in the republics within the Russian Federation, in the autonomous region, autonomous districts, territories and regions are not entitled, throughout the entire period of their employment in these institutions, to file applications for the grant of a patent for a breeding achievement.
An application for the grant of a patent must contain:
a request for the grant of a patent;
a questionnaire form for the breeding achievement;
a document confirming payment of the prescribed fee, or exempting from payment of the fee, or providing grounds for a reduction in its amount.
The requirements for these documents are established by the State Commission.
The application must relate to a single breeding achievement.
If the applicant is an employer, he must confirm the existence of a contract meeting the requirement of the second part of this article with the author of the breeding achievement.
Documents are submitted in Russian or in another language. If the documents are submitted in another language, a translation of them into Russian shall be attached to the application.
A breeding achievement must have a denomination proposed by the applicant and approved by the State Commission.
The denomination of a breeding achievement must make it possible to identify the breeding achievement, must be concise, and must differ from the denominations of existing breeding achievements of the same or a closely related botanical or zoological species. It must not consist solely of figures, must not be misleading as to the properties, origin or significance of the breeding achievement or the identity of the breeder, and must not be contrary to the principles of humanity and morality.
If the denomination proposed by the applicant does not meet the requirements of this article, the applicant is obliged to change the denomination within the period established by the State Commission.
Any person using a protected breeding achievement must use the denomination that is registered in the State Register of Protected Breeding Achievements.
Where there are valid reasons, the denomination of a breeding achievement may be changed with the consent of the State Commission.
The priority of a breeding achievement is established by the date of receipt by the State Commission of the application for the grant of a patent or the application for approval for use.
Testing of a breeding achievement for distinctness, uniformity and stability is carried out in accordance with the methods and within the time limits established by the State Commission.
The applicant is obliged to submit the required quantity of seeds or breeding material for testing to the address and within the time limit specified by the State Commission.
The exclusive right of the patent holder consists in the fact that any person must obtain a licence from the patent holder in order to perform the following acts with the seeds or breeding material of a protected breeding achievement:
(a) production and reproduction;
(b) conditioning to sowing standards for the purpose of subsequent propagation;
(c) offering for sale;
(d) sale and other forms of marketing;
(e) export from the territory of the Russian Federation;
(f) import into the territory of the Russian Federation;
(g) storage for the purposes listed above.
For the period from the date of receipt of the application by the State Commission until the date of grant of the patent, the applicant is afforded temporary legal protection of the breeding achievement.
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