CHAPTER XIII
Infringement of Plant Variety Protection
ARTICLE 82. What Constitutes Infringement. – Except as otherwise provided in the Act, any person who without being entitled to do so, performs any of the following acts:
a) Sell the novel variety, or offer it or expose it for sale, deliver it, ship it, consign it, exchange it, or solicit an offer to buy it, or any other transfer of title or possession of it;
b) Import the novel variety into, or export it from, the Philippines; or
c) Sexually multiply the novel variety as a step in marketing (for growing purposes) the variety; or
d) Use the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom; or
e) Use seed which had been marked “unauthorized propagation prohibited” or “unauthorized seed multiplication prohibited” or progeny thereof to propagate the novel variety; or
f) Dispense the novel variety to another, in a form which can be propagated, without notice as to being a protected variety under which it was received; or
g) Fails to use a variety denomination the use of which is obligatory under Section 15; or
h) Perform any of the foregoing acts even in instances in which the novel variety is multiplied other than sexually, except in pursuance of a valid Philippine plant patent; or
i) Instigate or actively induce performance of any of the foregoing acts, may be sued by the holder, who may also avail of all such relief as are available in any proceeding involving infringements of other proprietary rights. [Sec. 47]
ARTICLE 83. Where to Commence Action. – Any holder may petition the proper regional trial court for infringement of his plant variety protection. [Sec. 48]
ARTICLE 84. Presumption of Validity. – Certificates of Plant Variety Protection shall be presumed valid and the burden of proof of their invalidity shall rest on the party assailing them. [Sec. 49]
ARTICLE 85. Defenses Against Infringement Charges. – The following shall be valid defenses against infringement charges:
a) Non-infringement;
b) The plant variety does not possess at the time of its application criterion of novelty or distinctness;
c) The alleged infringement was performed under a right adverse to it, prior to the notice of infringement; and/or
d) Other defenses that are made available under this Act. [Sec. 50]
ARTICLE 86. Notice. – No damages shall be awarded unless there is actual or constructive notice made upon the alleged infringer. [Sec. 51]
ARTICLE 87. Damages. – The court may award actual, moral, exemplary damages and attorney’s fees according to a proven amount including a reasonable royalty for the use of the protected variety. [Sec. 52]
ARTICLE 88. Injunction. – The court may also enjoin the infringer(s) from further performing any act of infringement on the rights of the holder(s) as defined in the Act. [Sec. 53]
ARTICLE 89. Court to Order Confiscation of Infringing Materials. – Upon petition by the complainant, the court may order the confiscation of infringing materials, and:
a) Cause their distribution to charitable organization;
b) Cause the sale and provide the proceeds thereof to research organizations; or
c) Cause the return to the petitioner for further scientific use. [Sec. 54]
ARTICLE 90. Prescription. – No recovery of damages for any infringement case shall prosper when the cause of action has reached more than six (6) years from the time the alleged infringement case was committed. [Sec. 55]
ARTICLE 91. Criminal Penalty. – Any person who violates any of the rights of the holder provided for in this Act may also suffer the penalty of imprisonment of not less than three (3) years but not more than six (6) years and/or a fine of up to three (3) times the profit derived by virtue of the infringement but in no case should be less than One Hundred Thousand pesos (P100,000.00). [Sec. 56]
CHAPTER XIV
Cancellation and Nullity of Plant Variety Protection
ARTICLE 92. Grounds for Nullity. – The Certificate of Plant Variety Protection shall be declared void ab initio on any of the following grounds:
a) The grant of the Certificate of Plant Variety Protection was essentially based upon information and documents furnished by the applicant, wherein the conditions of distinctness, uniformity, stability, and newness were not complied with at the time of the grant of the certificate; or
b) The Certificate of Plant Variety Protection was granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled. The effect of the declaration of nullity is that as if the Certificate of Plant Variety Protection was not issued. [Sec. 61]
ARTICLE 93. Grounds for Cancellation. – The plant variety protection shall be cancelled on any of the following grounds:
a) The breeder does not provide the required information, documents, or materials necessary for verifying the maintenance of the variety; or
b) The breeder fails to pay the required fees to keep his or her rights in force or provides false information in his or her application; or
c) The breeder does not propose, within the time/period provided under the regulations, another suitable denomination if the denomination of the variety is cancelled after the grant of the Certificate of Plant Variety Protection; or
d) The conditions of uniformity and stability could not be maintained although these were present at the time of the issuance of the Certificate of Plant Variety Protection; or
e) The breeder entitled to the Certificate of Plant Variety Protection or the holder has relinquished his/her rights through a declaration in a public instrument filed with the registrar. [Sec. 62]
The effect of cancellation is that the plant variety protection ceases to be valid from the date the order of cancellation becomes final and executory.
ARTICLE 94. Who May File. – Any interested person may, upon payment of the required fee, petition to nullify a Certificate of Plant Variety Protection or cancel a plant variety protection on any of the grounds respectively specified in Articles 92 and 93.
The Registrar may motu proprio file such petitions: Provided, that no fee shall be required of the Registrar in his exercise of this authority.
ARTICLE 95. Requirements of the Petition. – The petition to nullify or cancel shall: (i) be in writing and verified by the petitioner or by any person in his behalf who knows the facts; (ii) specify the grounds on which it is based; (iii) and filed with the Board. Copies of documents mentioned in the petition shall be attached thereto, together with their translation in the English, if not in the said language.
ARTICLE 96. Venue. – Any petition to cancel a Certificate of Plant Variety Protection shall originally be under the jurisdiction of the Board. Decisions of the Board may be appealable with the Court of Appeals within fifteen (15) days from the receipt of notice of the Board’s final decision. [Sec. 63]
ARTICLE 97. Prescription. – The right to nullify a Certificate of Plant Variety Protection or cancel a plant variety protection shall be instituted at any time within the term of protection of such right [Sec. 64]
ARTICLE 98. Publication. – A notice of the filing of a petition to nullify a Certificate of Plant Variety Protection or cancel a plant variety protection, as the case may be, and the final order/decision on the same shall be published at the expense of the petitioner, as far as practicable, in the earliest issue of the Plant Variety Gazette following such notice or order/decision. [Sec. 65]
