CHAPTER XI
Exceptions to Plant Variety Protection
ARTICLE 67. Exceptions to Plant Variety Protection. – The Certificate of Plant Variety Protection shall not extend to:
a) Acts done for non-commercial purposes;
b) Act done for experimental purposes;
c) Acts done for the purpose of breeding other varieties, except when Sections 39 and 40 of the Act apply; and
d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under the Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the conditions and issue the guidelines under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This exception shall also extend to the exchange and sale of seeds among and between said small farmers: Provided, That the small farmers may exchange or soil seeds for reproduction and replanting in their own land. The right granted to small farmers under this provision does not include the right to sell the protected variety under the trademark or trade name of the holder which is associated with the registered denomination. [Sec. 43]
ARTICLE 68. Exhaustion of Plant Variety Protection. – The Certificate of Plant Variety Protection shall not extend to acts concerning any material of the protected variety, or a variety covered by Articles 57 and 58, which has been sold or otherwise marketed by the breeder or with his consent in the Philippines, or any material derived from the said material, unless it.
a) Involves further, propagation of the variety in question; or
b) Involves the export of the variety, which enables the propagation of the variety, into a country that does not protect the variety of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. [Sec. 44]
CHAPTER XII
Compulsory Licensing
ARTICLE 69. Grounds for Compulsory Licensing. – The Board may grant a license to exploit a protected variety, even without the agreement of the holder, in favor of any person who has shown his capability to exploit the plant variety, when it is for the public interest to grant such compulsory licensing and:
a) The reasonable requirements of the public for any part of the variety are not met; or
b) There is an overseas market for the sale of any part of the variety and the same are not met by the holder; or
c) The plant variety developed relates to or is required in the production of medicine and/or any food preparation; [Sec. 57]
ARTICLE 70. Who may file petition for compulsory licensing; time for filing the petition. – Upon the payment of the required fee, any interested person may file a petition for compulsory licensing with the Board at any time, after two years after the grant of the Certificate of Plant Variety Protection when it is for the public interest to grant such compulsory licensing. [Sec. 57]
ARTICLE 71. Scope of Compulsory Licensing. – The Board, upon petition by any interested party and upon proof of any of the foregoing grounds, may issue a decision:
a) Allowing the petitioner to produce in commercial quantity and distribute the variety protected or any part thereof ; or
b) Requiring the holder to ensure the availability of the propagating materials of the variety protected; or
c) Requiring the petitioner to pay the holder with the license fees in the form of reasonable royalties; and
d) Other such additional remedies as the Board may determine to be consistent with appropriate circumstances. [Sec. 58]
ARTICLE 72. Form and Contents of Petition. – The petition for compulsory licensing must be in writing, verified by the petitioner and accompanied by payment of the required filing fee. It shall contain the name and address of the petitioner as well as those of the respondents, the number and date of issue of the Certificate of Plant Variety Protection in connection with which compulsory license is being sought, the name of the holder of the PVP Certificate, the denomination of the plant variety, the statutory grounds upon which compulsory license is sought, the ultimate facts constituting the petitioner’s cause of action, and the relief prayed for.
ARTICLE 73. Notice of Hearing. – Upon filing of a petition, the Board shall forthwith serve notice of the filing thereof upon the holder and all persons having licenses or any other right, title or interest in and to the Certificate of Plant Variety Protection and the plant variety covered thereby as appears on the record of the PVP Office, and of notice of the date of hearing thereon, on such persons and petitioner.
ARTICLE 74. Publication of Notice. – In every case, the Board shall cause the notice to be published once in a newspaper of general circulation and once in the PVP Gazette at the expense of the applicant.
ARTICLE 75. Grant of License. – If the Board finds that a grant of license under Article 65 has been made out, it shall, within three (3) months from the date the petition was filed, order the grant of an appropriate license.
ARTICLE 76. Terms and Condition of Compulsory License. – The Board shall fix the terms and conditions including the rate of royalties of the compulsory license subject to the following conditions:
a) The scope and duration of such license shall be limited to the purpose for which it was authorized;
b) The license shall be non-exclusive;
c) The license shall be non-assignable, except with the part of the enterprise;
d) The license may be terminated upon proper showing that circumstances which led to its grant have ceased to exist and are unlikely to recur: Provided, that adequate protection shall be afforded to the legitimate interest of the licensee;
e) The holder shall be paid adequate remuneration taking into account the economic value of the grant or authorization, except that in cases where the license was granted to remedy a practice which was determined after judicial or administrative process to be anti-competitive, the need to correct the anti-competitive practice may be taken into account in fixing the amount of remuneration.
ARTICLE 77. Amendment of Compulsory License. – Upon the request of the holder or licensee, the Board may amend the decision granting the compulsory license, upon proper showing of new facts or circumstances justifying such amendment.
ARTICLE 78. Duration of Compulsory License. – A compulsory license shall be effective until the ground(s) for its issuance has been terminated as determined by the Board motu proprio or upon the petition by parties and resolution by the Board. [Sec. 59]
ARTICLE 79. Cancellation of a Compulsory License. – Upon the request of the holder, the Board may cancel the compulsory license:
a) if the ground for the grant of the compulsory license no longer exists and is unlikely to recur;
b) if the licensee has neither begun to supply the overseas market nor made serious preparation therefore;
c) If the license has not complied with the prescribed terms of the license.
ARTICLE 80. Surrender of the License. – The licensee may surrender the license by a written declaration submitted to the Board.
ARTICLE 81. Publication of the Amendment, Surrender, or Cancellation of the License. – The Board shall cause the amendment, surrender, or cancellation of a license to be recorded in the appropriate register of the PVP Office, notify the holder, and cause notice thereof to be published, at the expense of the petitioner, in the PVP Gazette.
