TITLE VII
Rights of Holders
SECTION 36. Rights of Holders of Plant Variety Protection. – In respect of the propagating materials, holders of a Certificate of Plant Variety Protection shall have the right to authorize any of the following acts:
a) Production or reproduction;
b) Conditioning for the purpose of propagation;
c) Offering for sale;
d) Selling or other marketing;
e) Exporting;
f) Importing; and
g) Stocking for any purpose mentioned above.
SECTION 37. The holder may make his authorization subject to conditions and limitations.
SECTION 38. Acts in Respect of Harvested Materials. – Except for Sections 43 and 44 of this Title, the rights in the two (2) preceding sections shall also extend to the harvested materials which may be the entire plant or its other parts, if the production thereof resulted directly from the unauthorized use of the plant’s propagating materials that are covered by this Act, unless the holder has had the reasonable opportunity to exercise his right in relation to the said propagating materials.
SECTION 39. Coverage of Protection. – The rights of holder under Sections 36 and 38 of this Act shall also apply in relation to:
a) Varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety;
b) Varieties which are not clearly distinct from the protected variety; and
c) Varieties whose production requires the repeated use of the protected variety.
SECTION 40. Essentially Derived Varieties. – For the purpose of paragraph 39(a), a variety shall be deemed to be essentially derived from 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
c) 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.
SECTION 41. Manner of Developing Essentially Derived Varieties. – It shall also be understood that essentially derived varieties may be obtained through processes which may include, but not limited to, the selection of a natural or induced mutant, or of a somoclonal variant, the selection of a variant individual from plants of initial variety, backcrossing or transformation by genetic engineering. Genetic engineering shall be understood as the introduction of genes by laboratory techniques.
SECTION 42. Provisional Protection. – An applicant for a Certificate of Plant Variety Protection shall be entitled to equitable remuneration from any person who, during the period between the publication of the application for the certificate and the grant of that certificate, has carried out acts which, once the certificate is granted, require the holder’s authorization as conferred in this Act: Provided, That the applicant shall initiate the legal action against the alleged infringer within two (2) years from the date of the granting of his Certificate of Plant Variety Protection.
SECTION 43. Exceptions to Plant Variety Protection. – The Certificate of Plant Variety Protection shall not extend to:
a) Acts done for non-commercial purposes;
b) Acts done for experimental purposes;
c) Acts done for the purpose of breeding other varieties, except when Sections 39 and 40 apply; and
d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under this Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the condition under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This provision shall also extend to the exchange and sale of seeds among and between said small farmers: Provided, That the small farmers may exchange or sell seeds for reproduction and replanting in their own land.
SECTION 44. 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 the provisions of Sections 39 and 40 hereof, 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.
SECTION 45. Right of Attribution. – No Certificate of Plant Variety Protection shall be issued without naming the breeder(s) unless this right is protested in writing within one (1) year.
SECTION 46. Succession/Transmission. – The Certificate of Plant Variety Protection shall be considered as a property right and the transmission thereof shall be governed by the law on Property.
TITLE VIII
Infringement
SECTION 47. What Constitutes Infringement. – Except as otherwise provided in this Act, any person who without being entitled to do so, performs 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; or
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 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.
SECTION 48. Where to Commence Action. – Any holder may petition the proper regional trial court for infringement of his plant variety protection as defined in this Act.
SECTION 49. 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.
SECTION 50. 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.
SECTION 51. Notice. – No damages shall be awarded unless there is actual or constructive notice made upon the alleged infringer.
SECTION 52. 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.
SECTION 53. 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 this Act.
SECTION 54. 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.
SECTION 55. 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.
SECTION 56. 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).
TITLE IX
Compulsory License
SECTION 57. Grounds for the Grant of Compulsory Licensing. – Any interested person may file a petition for compulsory license with the Board at any time after two (2) years from the grant of the Certificate of Plant Variety Protection under this Act when it is for the public interest to grant such compulsory license, 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 required in the production of medicine and/or any food preparation.
SECTION 58. Scope of Compulsory License. – 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 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.
SECTION 59. Duration of the 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 petition by party or parties and resolution by the Board.
SECTION 60. Procedure for Grant. – The Board shall provide in the rules and regulations the manner and procedure for granting compulsory licenses.
