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Provisions to adapt Italian legislation to the revised International Convention for the Protection of New Varieties of Plants of 1991 THE PRESIDENT OF THE REPUBLIC, Having regard to Articles 76 and 87 of the Constitution; Having regard to Section 3 of law no. 110 of 23 March 1998, ratifying and implementing the International Convention for the Protection of New Varieties of Plants adopted in Paris on 2 December 1961, and revised at Geneva on 10 November 1972, 23 October 1978 and on 19 March 1991; Having regard to law no. 620 of 14 October 1985, ratifying and implementing the revised International Convention of 2 December 1961 for the Protection of New Plant Varieties, revised on 10 November 1972, and signed in Geneva on 23 October 1978; Having regard to Presidential Decree no. 391 of 18 April 1994; Having regard to the resolution adopted by the Council of Ministers on 30 October 1998, adopting the proposal of the Prime Minister, and the Minister for Trade and Industry, acting jointly with the Ministers for Agricultural Policies, Foreign Affairs, Finance and the Treasury, Budget and Economic Planning; HEREBY PROMULGATES THE FOLLOWING LEGISLATIVE DECREE: Section 1 1. The right to a new plant variety is conferred by an exclusive right issued under the terms of this decree. 2. The provisions of Articles 2584 to 2591, inclusive, of the Civil Code, and the Royal Decree no. 1127 of 29 June 1937, as subsequently amended and completed, and the provisions of the regulation approved by Royal Decree no. 244 of 5 February 1940, as subsequently amended and completed, where they are not inconsistent with the provisions of this Decree, shall remain applicable to new plant varieties. Section 2 1. The rights arising as a result of creating new plant varieties, save the right to be recognized as their author, are transferable. 2. The right to be recognized as the author may be exploited after the death of the author by the person designated by the latter for this purpose; when such designation does not exist, or following the death of the designated person, this right may be exploited by the spouse and by the descendants to the second degree; in their absence, or after their death, by the parents and other descendants, and in their absence, or after the death of the latter, by their relatives up to and including the fourth degree. Section 3 1. For the purposes of this Decree "breeder" means: a) the person who bred, or discovered and developed a variety; b) the person who is the employer of the aforementioned person or who has commissioned the latter's work; c) the successor in title of the first or second aforementioned persons, as the case may be. 2. "Variety" means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, may be: a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes; b) distinguished from any other plant grouping by the expression of at least one of the said characteristics; c) considered as a unit with regard to its suitability for being propagated unchanged. Section 4 1. The breeder's right shall be granted where the variety is: a) new; b) distinct; c) homogeneous; d) stable. Section 5 1. The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety; a) in the territory of Italy in which the application has been filed earlier than one year before that date; b) in a territory other than Italy in which the application has been filed earlier than four years or, in the case of trees or vines, earlier than six years before the said date. Section 6 1. The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at that time of the filing of the application. 2. In particular, another variety shall be deemed to be a matter of common knowledge when: a) the filing of an application for the granting of a breeder's right or for the entering of another variety in an official register of varieties has been made in any other country, provided that the application leads to the granting of a breeder's right or to the entering of the said other variety in the official register of varieties; b) it is present in public collections; c) it is described in the literature. Section 7 1. The variety shall be deemed to be homogeneous if, subject to the variation that may be expected from the particular features of its sexual propagation and its vegetative multiplication, it is sufficiently homogeneous in its relevant characteristics for the purposes of protection. Section 8 1. The variety shall be deemed to be stable if its relevant characteristics for the purposes of protection remain unchanged after repeated propagation or multiplication, or in the case of a particular cycle of propagation or multiplication, at the end of each cycle. Section 9 1. The breeder may choose the State Member of the Union for the projection of new varieties B hereafter denominated as UPOV B with whose authority he wishes to file his first application for a breeder's right. Section 10 1. All natural or juridical persons domiciled or resident in the territory of one of the UPOV Member States shall be subject to the provisions of this Decree on the basis of reciprocity. 2. All natural or juridical persons not domiciled or resident in the territory of a UPOV Member State shall be subject to the provisions of this Decree on the basis of bilateral agreements on a reciprocal basis. Section 11 1. The breeder of a new plant variety or his successor in title may claim the priority of the first application filed previously in an UPOV Member State in order to obtain protection for the same variety. 2. The right of priority may only be claimed if the filing of the application for protection and the claim for priority are made within 12 months from the date on which the first application was filed. 3. The breeder shall have a period of two years following the expiration of the period of priority in which to furnish any necessary information, document or material required for the purpose of the examination under section 18. 4. Events occurring within the period provided for in subsection (2), such as the filing of another application or the publication or use of the variety that is the subject of the first application, shall not constitute a ground for rejecting the subsequent application. Such events shall also not give rise to any third-party right. Section 12 1. During the period between the filing or the publication of the application and the grant of a breeder's right, the breeder shall be entitled to equitable remuneration from any person who, during that period, has carried out acts which, once the right is granted, require the breeder's authorization. Section 13 1. The following acts in respect of the propagating material of the protected variety shall require the authorization of the breeder: a) production or reproduction; b) conditioning for the purpose of propagation or multiplication; c) sale, selling, or other marketing; d) exporting or importing; e) stocking for any of the purposes mentioned above. 2. Authorization of the breeder is required for all the acts mentioned in subsection (1) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety, unless the breeder has had reasonable opportunity to exercise his right in relation to that propagating material. The use shall be deemed not authorized, unless proof to the contrary is provided. 3. The provisions of subsection (1) and (2) shall also apply in relation to: (a) varieties which are essentially derived from the protect variety, where the protected variety is not itself an essentially derived variety; b) varieties which are not clearly distinguishable in accordance with Section 6 from the protected variety; (c) varieties whose production requires the repeated use of the protected variety. 4. For the purposes of subsection (3)(a), a variety shall be deemed to be essentially derived from another variety, defined as "the initial variety", when: (a) it is predominantly derived from the initial variety or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety; (b) it is clearly distinguishable from the initial variety and, except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety. 5. Essentially derived varieties may be obtained, for example, by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering. Section 14 1. The breeder's right shall not extend to acts done privately and for non-commercial purposes; acts done for experimental purposes; acts done for the purpose of breeding other varieties, except where the provisions of Section 13(3) apply, acts referred to in Section 13(1) and (2) in respect of such other varieties. Section 15 1. The breeder's right, granted under the terms of this Decree, shall be granted for twenty years from the date of the grant. For trees and vines, the period shall be 30 years from the date of the grant. 2. The effects of the exclusive rights shall commence on the date on which the application, complete with the descriptive elements, is made available to the public. 3. With respect to any persons to whom the application, complete with the descriptive elements, has been notified by the breeder, the effects of the breeder's right shall commence on the date of said notification. Section 16 1. The breeder's right shall not extend to acts concerning any material of the protected variety or of a variety covered by the provisions of Section 13(3) which has been sold or otherwise marketed by the breeder or with his consent in the national territory, or any material derived from the said material, unless such acts involve further propagation or multiplication of the variety in question, or involve an export of material of the variety, which enables the propagation of the variety into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. 2. For the purposes of subsection (1) the term "material" in relation to a variety means: a) propagating or multiplication material of any kind; b) harvested material, including whole plants or parts of plants; c) any product made directly from the harvested material. Section 17 1. The variety shall be designated by a denomination which will be its generic designation. 2. The denomination must enable the variety to be identified. It may not consist solely of figures, except where this is an established practice for designating certain varieties. It must not be liable to mislead or cause confusion concerning the characteristics, value or identity of the variety or the identity of the breeder. In particular, it must be different from every denomination which designates, in the territory of a UPOV Member State, an existing variety of the same plant species or of a closely related species, unless that other variety no longer exists and its denomination has not acquired particular importance. 3. Prior rights acquired by third parties are not affected. 4. The denomination must be the same as the denomination registered in any one of the UPOV Member States to designate the same variety. 5. The deposited denomination which meets the conditions of subsections 1, 2, 3 and 4 is registered. 6. The denomination which has been deposited and registered and any variations thereto shall be notified to the competent authorities of the UPOV Member States. 7. The registered denomination must be used for the variety even after the expiration of the breeder's right to the extent that, pursuant to the provisions of subsection (3), previously acquired rights do not prevent such use. 8. It is permitted to associate a trade mark, a trade name or a similar indication with a registered variety denomination, provided that the variety denomination is easily recognizable in every case. Section 18 1. The examination of the application for the grant of a breeder's right for new plant varieties is designed to ascertain the following: a) the formal regularity of the application and of the documents annexed thereto; b) the conformity of the denomination of the new plant variety with the provisions of Section 17; c) the conformity of the variety with the provisions of Section 4. This conformity must be ascertained by cultivating the variety, or by any other tests that may be necessary, or through the results obtained by cultivation tests or other tests already conducted. Section 19 1. The breeder's right shall be null and void when it is established that: a) the conditions laid down by Sections 5 and 6 were not complied with at the time of the grant of the breeder's right; b) where the grant of the breeder's right has been essentially based upon information and documents furnished by the breeder, the conditions laid down in Sections 7 and 8 were not complied with at the time of the grant of the breeder's right; c) the breeder's right has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled. 2. No breeder's right shall be declared null and void for reasons other than those referred to in subsection (1). Section 20 1. A breeder's right shall lapse if it is established that the conditions laid down in Sections 7 and 8 are no longer fulfilled. 2. A breeder's right may also be withdrawn by the competent authority after the latter has failed to comply with the request to: a) provide the authority, within 30 days, with the information, documents or material deemed necessary for verifying the maintenance of the variety; b) to pay any such fees that may be payable to keep his right in force; c) to propose, where the denomination of the variety has been cancelled after the grant of the right, another suitable denomination. 3. In the cases provided by subsection (2)(a) and (c), the lapsing of the breeder's right shall be announced by the IPTO acting on a proposal of the Minister for Agricultural Policy. 4. No breeder's right shall be withdrawn for reasons other than those referred to in subsections (1) and (2). Section 21 1. The breeder's right may be subject to a compulsory non-exclusive licence, only for reasons of public interest. Section 22 1. The administrative functions governing this Decree shall be performed by the Italian Patents and Trade Marks Office at the Ministry of Trade and Industry which shall use the services, in the phase of filing the application, of the Chambers of Commerce, Industry and Agriculture, pursuant to Section 20 of Legislative Decree No. 112 of 31 March 1998. 2. For the purposes of recognizing the requisites referred to in Section 18(1) (b) and (c), the Ministry for Agricultural Policy shall issue a binding opinion based upon the work of the Consulting commission instituted under Section 14 of Presidential Decree no. 974 of 12 August 1975. Section 23 1. Expropriation under Sections 60 et seq. of Royal Decree no. 1127 of 29 June 1939 shall be applied to new plant varieties, after receiving the opinion of the Ministry for Agricultural Policy. Section 24 1. A copy of the summons in respect of every civil suit and every appeal to the Commission referred to in Section 71 of Royal Decree no. 1127 of 29 June 1939 relating to new plant varieties shall be served not only on the Italian Trade Marks and Patents Office but also on the Ministry for Agricultural Policy by the plaintiff or appellant. 2. Where this has not been done, the Court or the aforementioned Commission shall, at any phase in the proceedings, but before a decision on the merits of the case has been issued, order such notice to be served. Section 25 1. The following amendments are made to the tariffs indicated in the table annexed to Presidential Decree no. 641 of 26 October 1972 Section 9 (Title IV) amended most recently by Finance Ministry Decree of 28 December 1995, published in the Official Gazette no. 303 of 30 December 1995: a) in paragraph (1) the following words are deleted: "and for new plant varieties" and the words "law no. 620 of 14 October 1985"; b) in paragraph (2) the following words are deleted: "and a special licence for patents for new plant varieties". 2. After Section 9 in the table annexed to the Ministerial Decree referred to in subsection (1), the following Section 9-bis is added: "Section 9-bis. 1. Right for new plant varieties: "a) the application fee, including the fee for publication and the fee for the provisional protection (prior to grant) of Lire 350,000; "b) the fee for maintaining the patent (from the grant of patent): 1st 150,000 "2. The fees for compulsory patent licences for new plant varieties are: a) for the application: 800,000 Lire; b) for the grant: 2,700,000 Lire. "3. The fees for the registration of the documents relating to new plant variety rights are: for each right: 120,000 Lire; for the power of attorney: 50,000 Lire. "4. The application fee for new plant varieties, including the fee for publication and provisional protection is not refundable". Section 26 1. For all the opinions and the necessary technical examinations required by Section 18 the fees established by decree of the Minister for Agricultural Policy shall be due, measured in terms of the actual cost of the service. These fees shall be paid into the State budget, to be reassigned, by decree of the Minister for the Treasury, the Budget and Economic Planning, to the forecasting unit of the Budgetary Department at the Ministry of Trade and Industry. Section 27 1. The cost of implementing Section 22 of this Decree, put at Lire 50 million yearly as from 1999, shall be paid from the increased revenues resulting from the application of Section 25. 2. The Ministry of the Treasury, Budget and Economic Planning is authorized to issue decrees to make the necessary changes to the Budget. Section 28 1. Notwithstanding the provisions of Section 24 of Presidential Decree no. 974 of 12 August 1975, the provisions of this decree shall be extended to cover every plant genus and species one year after its entry into effect. Section 29 1. Any applications to obtain a breeder's right filed prior to the date of entry into force of this decree shall be dealt with according to the provisions contained therein, while the existing provisions shall apply with regard to formal regularity. 2. The provisions of Section 13(3) and (4) apply to all applications filed following the date of entry into force of this decree. Section 30 1. The provisions of Section 15 apply to rights for new plant varieties granted by Presidential Decree no. 974 of 12 August 1975, which still remain in force on the date of entry into force of this decree. 2. Licensees and those who, on the date of entry into force of this decree, have made substantial and effective investments for the use of the new plant varieties covered by the breeder's right may obtain a free and non-exclusive compulsory licence for the longer period. This right does not apply to any persons abusively using rights which have not yet expired. Section 32 This decree shall enter into force on the ninetieth day following the date of its publication in the Official Gazette of the Italian Republic. 2. By the same date the Ministry of Trade and Industry shall, acting jointly with the Minister for Agricultural Policy, shall issue a decree adopting the regulation for its implementation. Done in Rome on 3 November 1998. Published in the official Gazette N° 303 of December 30,
1998
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