Plant Varieties Protection Act 2004

Plant Varieties
Protection Act 2004

2020 REVISED EDITION

This revised edition incorporates all amendments up to and including 1 December 2021 and comes into operation on 31 December 2021

An Act to provide for the protection of plant varieties.

[1 July 2004]

PART 1

PRELIMINARY

Short title

1.  This Act is the Plant Varieties Protection Act 2004.

Interpretation

2.  In this Act, unless the context otherwise requires —

“applicant”, in relation to any application, means the person by whom or on whose behalf the application is made;

“application” means an application for a grant of protection;

“breeder”, in relation to any plant variety, means —

(a) subject to paragraph (b), a person who bred, or discovered and developed, the plant variety;

(b) if the plant variety was bred, or discovered and developed, by a person in the course of performing the person’s duties or functions as an employee of another person, that other person; or

(c) the successor in title to the person in paragraph (a) or (b) (as the case may be);

“Convention” means the international agreement called the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as revised or amended from time to time;

“Court” means the General Division of the High Court;

“denomination” means the distinguishing name or identification for a plant variety;

“Examiner” means any person, organisation or entity (including an international plant variety office or organisation, or a plant variety office or an organisation of a country or territory other than Singapore) appointed by the Registrar for the purpose of referring any question or matter relating to the examination of a plant variety for a grant of protection;

[Act 7 of 2022 wef 26/05/2022]

“grant of protection” means a grant of protection made by the Registrar under section 21;

“grantee” means the holder of a grant of protection;

“harvested material” means any harvested material to which the rights of a grantee under section 28(1) are extended by virtue of section 28(7);

“Office” means the Intellectual Property Office of Singapore incorporated under the Intellectual Property Office of Singapore Act 2001;

“plant” includes all fungi and algae but does not include bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages;

“plant variety” means a plant grouping within a single botanical taxon of the lowest rank which, irrespective of whether the conditions for a grant of protection are fully met, can be —

(a) defined by the expression of the characteristics resulting from a given genotype or a combination of genotypes;

(b) distinguished from any other plant grouping by the expression of at least one of those characteristics; and

(c) considered as a unit with regard to its suitability for being propagated unchanged;

“procedural representative”, in relation to any plant variety, means a person who is resident or has an office in Singapore and who is appointed by the breeder of that variety to act on the breeder’s behalf in respect of the making of any application for, or any proceedings relating to, a grant of protection for that variety;

“propagating material”, in relation to a plant of a particular plant variety, means any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced;

“propagation”, in relation to a plant or any of its components, means the growth, culture or multiplication of that plant or component;

“protected variety” means a plant variety in respect of which a grant of protection is in force, and includes any essentially derived or other plant variety to which the grant of protection is extended by virtue of section 29(1);

“register” means the register of plant varieties maintained under section 39;

“Registrar” means the Registrar of Plant Varieties mentioned in section 5;

“Registry” means the Registry of Plant Varieties mentioned in section 7;

“relevant characteristics”, in relation to any plant variety, means the phenotypical and genotypical expressions of the variety that permit its identification;

“term”, in relation to a grant of protection, means the term of the grant of protection under section 24;

“UPOV member” means a state or an inter‑governmental party to the Convention which is a member of the International Union for the Protection of New Varieties of Plants constituted pursuant to the Convention.

[2/2007; 16/2014; 40/2019]

Act to bind Government

3.  This Act binds the Government but nothing in this Act renders the Government liable to be prosecuted for an offence.

Application of Act

4.  This Act applies to all plant genera and species.

[16/2014]

PART 2

ADMINISTRATION

Registrar of Plant Varieties and other officers

5.—(1)  There is to be a Registrar of Plant Varieties who has the chief control of the Registry of Plant Varieties.

(2)  There are to be one or more Deputy Registrars of Plant Varieties who is to, subject to the control of the Registrar, have all the powers and functions of the Registrar under this Act, other than the powers of the Registrar under section 6.

(3)  There are to be one or more Assistant Registrars of Plant Varieties.

(4)  The Registrar and all the other officers under this section must be appointed by the Minister.

Delegation by Registrar

6.—(1)  The Registrar may, in relation to a particular matter or class of matters, by writing under the hand of the Registrar, delegate all or any of his or her powers or functions under this Act (except this power of delegation) to an Assistant Registrar of Plant Varieties, any public officer, or any person with the relevant qualifications for or experience in the matter or class of matters, so that the delegated powers and functions may be exercised by the delegate with respect to the matter or class of matters specified in the instrument of delegation.

[16/2014]

(2)  A delegation under this section is revocable at will and no delegation prevents the exercise of a power or function by the Registrar or by any Deputy Registrar of Plant Varieties.

(3)  Where the delegate is a person with the relevant qualifications or experience mentioned in subsection (1), he or she is, when exercising the delegated powers or functions, deemed to be a public servant for the purposes of the Penal Code 1871.

[16/2014]

Registry of Plant Varieties

7.  For the purposes of this Act, there is an office which is known as the Registry of Plant Varieties.

Seal of Registry

8.  There is a seal of the Registry and impressions of the seal are to be judicially noticed.

Powers of Registrar

9.  The Registrar may, for the purposes of this Act —

(a) summon witnesses;

(b) receive evidence on oath, whether orally or otherwise; and

(c) require the production of documents or articles.

Disobedience to summons an offence

10.—(1)  A person who has been summoned to appear as a witness before the Registrar must not, without lawful excuse, fail to appear in obedience to the summons.

(2)  A person who has been required by the Registrar to produce a document or article must not, without lawful excuse, fail to produce the document or article.

(3)  Any person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months or to both.

Refusal to give evidence an offence

11.—(1)  A person who appears before the Registrar must not, without lawful excuse, refuse to be sworn or to make an affirmation, or to produce documents or articles, or to answer questions, which the person is lawfully required to produce or answer.

(2)  Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months or to both.

Costs awarded by Registrar

12.—(1)  The Registrar may award costs in respect of the matters, and in the amounts provided for in rules made under this Act, against any party to proceedings brought before him or her.

(2)  The rules may provide for the assessment of the costs, or any part of the costs, by the Registrar.

[Act 25 of 2021 wef 01/04/2022]

(3)  A party desirous to obtain costs or to have the costs assessed must apply to the Registrar in accordance with the rules.

[Act 25 of 2021 wef 01/04/2022]

(4)  If a party is ordered to pay the costs of another party, the costs may be recovered in a court of competent jurisdiction as a debt due by the first party to the other party.

PART 3

APPLICATION FOR GRANT OF PROTECTION

Application for grant of protection

13.—(1)  An application for a grant of protection for a plant variety must be made by the breeder of that plant variety in the prescribed manner to the Registrar.

(2)  The application must contain or be accompanied by the following:

(a) a description of the plant variety;

(b) the proposed denomination for the plant variety which qualifies for approval and registration under section 36;

(c) an address for service in relation to that application, being an address within Singapore;

(d) if a right of priority is claimed under section 14, full particulars of the relevant priority application.

(3)  The application must be accompanied by an application fee and any other fees that may be prescribed.

(4)  An application that complies with subsections (1), (2) and (3) at the time it is received at the Registry is, for the purposes of this Act, deemed to be made at that time.

(5)  An application that does not comply with subsection (1), (2) or (3) at the time it is received is nevertheless deemed to be made at that time if it is rectified within such time and in such manner as the Registrar may specify.

(6)  The Registrar must, if satisfied that an application complies with subsections (1), (2) and (3) —

(a) publish the application and the proposed denomination for the plant variety in the prescribed manner; and

(b) notify the applicant of the publication.

Priority resulting from foreign application

14.—(1)  If —

(a) the breeder of a plant variety has made an application in any UPOV member other than Singapore (called in this section the foreign application) for the equivalent of a grant of protection; and

(b) within 12 months after —

(i) the date on which the foreign application was made; or

(ii) where more than one foreign application has been made (whether in one UPOV member or more than one UPOV member), the date the earliest foreign application was made,

the breeder makes an application for the grant of protection in respect of the plant variety in Singapore,

the breeder may, when making the application under this Act, claim a right of priority, and sections 22 and 23 apply to the application for a grant of protection in Singapore as if it had been made on the date the foreign application (or the earliest foreign application) was made.

(2)  The breeder must, within the prescribed period after making the claim of a right of priority under subsection (1), submit to the Registrar a copy of any document constituting the foreign application, which must be certified as correct by the authority in the UPOV member to which the foreign application was made.

[Act 7 of 2022 wef 26/05/2022]

(3)  The breeder is allowed a period of 2 years after the end of the period mentioned in subsection (1)(b) or, where the foreign application (or the earliest foreign application) is rejected or withdrawn, a period of 2 years after the rejection or withdrawal, in which to furnish any necessary information, document or material required for the purpose of the examination under section 17 to the Registrar or an Examiner appointed by the Registrar for the purposes of this subsection (as the case may be) or an examination report under section 18 to the Registrar.

[16/2014]

Publication

15.  The Registrar must publish applications for grant of protection, and information on other prescribed matters, in the prescribed manner at the time and frequency determined by the Registrar.

[Act 7 of 2022 wef 26/05/2022]

Objections to denomination and grant of protection

16.—(1)  Any person may, within the prescribed period after the publication of a denomination, by written notice to the Registrar, object to the approval of that denomination.

(2)  Any person may, within the prescribed period after the publication of an application for a grant of protection for a plant variety, by written notice to the Registrar, object to the making of a grant in respect of that plant variety on the ground that the plant variety is not new within the meaning of section 22.

(3)  The Minister may make rules to provide for objection proceedings and for matters relating to objection proceedings.

(4)  If a person who neither resides nor carries on business in Singapore makes an objection under this section, the Registrar may require the person to give security for the costs of the proceedings and may, if security is not given, dismiss the proceedings.

Examination of plant variety

17.—(1)  Subject to section 18, the applicant must, within the prescribed period after making an application, give to the Registrar or any Examiner appointed by the Registrar for the purposes of this section —

(a) in such detail as the Registrar or the Examiner may require for examination under subsection (2), a description of —

(i) the origin and breeding of the plant variety concerned (called in this section the candidate variety);

(ii) the botanical features of the candidate variety; and

(iii) at least one plant variety that is, to the breeder’s knowledge, most similar to the candidate variety and at least one characteristic which distinguishes the candidate variety from such other variety or varieties; and

(b) propagating material of the candidate variety, but only if the Registrar or the Examiner requests for it.

[16/2014]

[Act 7 of 2022 wef 26/05/2022]

(2)  The Registrar or the Examiner must examine the candidate variety —

(a) to verify whether the candidate variety belongs to the stated botanical taxon;

(b) to establish whether the candidate variety is distinct, uniform and stable; and

(c) where the candidate variety is found to meet the requirements in paragraphs (a) and (b), to establish an official description of the variety.

[16/2014]

(3)  The Registrar or the Examiner may by written notice request the applicant to furnish any further information, document or propagating material of the candidate variety and of any similar plant variety in addition to any plant variety mentioned in subsection (1)(a)(iii).

[16/2014]

(4)  Where the Registrar or the Examiner has made a request for further information, documents or propagating material under subsection (3), the applicant must —

(a) furnish the information, document or propagating material within the period stated in the written notice; or

(b) where the information, document or propagating material is not available, notify the Registrar or the Examiner (as the case may be) of this fact within that period.

[16/2014]

(5)  The Registrar or the Examiner (as the case may be) may extend the period in subsection (4) in a particular case.

[Act 7 of 2022 wef 26/05/2022]

Corresponding examination

18.—(1)  Subject to subsection (2), the applicant may, instead of complying with the provisions in section 17, lodge with the Registrar in any manner that the Registrar may require and within the prescribed period, an examination report issued and certified by an Examiner in any UPOV member other than Singapore.

[16/2014]

(2)  The Registrar may reject an examination report lodged under subsection (1), in which case the applicant must comply with the provisions in section 17.

Withdrawal or lapse of application

19.—(1)  Any application may be withdrawn by the applicant at any time before a grant of protection is made in respect of it.

(2)  The withdrawal of an application does not affect the applicant’s liability for any fees that may have become payable up to the date of that withdrawal.

(3)  Where any information, document or material required to be given to the Registrar or an Examiner under the provisions of this Act is not supplied within the period stated in the written notice issued by the Registrar or the Examiner (as the case may be) requiring the information, document or material, the application concerned lapses upon the end of that period.

[16/2014]

Provisional protection

20.  Where a grant of protection for a plant variety has been made under section 21, the grantee has the right to take proceedings in respect of the protected variety under this Act as if the grant of protection had been made on the date the application for that grant of protection was published under section 15.

PART 4

GRANT AND REVOCATION OF PROTECTION

Making of grant of protection

21.—(1)  The Registrar must —

(a) except where an application has been withdrawn or has lapsed under section 19, make a grant of protection in respect of every application that is eligible for the making of a grant of protection; and

(b) decline to make a grant of protection in respect of every application that is not eligible for the making of a grant of protection.

(2)  An application must be treated as being eligible for the making of a grant of protection if, and only if —

(a) the applicant has complied with section 13 and section 17 or 18, as the case may be; and

(b) the Registrar —

(i) has approved, for the plant variety in respect of which the application was made, the denomination proposed by the applicant under section 36;

(ii) is satisfied that the applicant is the breeder of that plant variety; and

(iii) is satisfied that that plant variety is new, distinct, stable and uniform within the meaning of section 22.

Conditions for grant of protection

22.—(1)  For the purpose of sections 16(2), 21(2)(b)(iii) and 25(2)(a) —

(a) a plant variety is new if harvested or propagating material of the plant variety has not been sold or otherwise disposed of to another person, by or with the breeder’s consent for the purposes of exploitation of the plant variety —

(i) earlier than 12 months before the date the application is made, where the sale or disposal and the exploitation of the plant variety is in Singapore; and

(ii) earlier than 6 years before that date in the case of trees or vines, or earlier than 4 years before that date in any other case, where the sale or disposal and the exploitation of the plant variety is outside Singapore;

(b) a plant variety is distinct if it is clearly distinguishable from any other plant variety whose existence is a matter of common knowledge at the time of the making of the application;

(c) a plant variety is stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each cycle; and

(d) a plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.

(2)  For the purposes of subsection (1)(a), where, in order to increase the stock of a plant variety or for any testing of a plant variety, the breeder of the plant variety makes any arrangement under which —

(a) propagating material of that plant variety is to be sold to or used by some other person; and

(b) any unused portion of that propagating material, and all the material of any type produced from that propagating material, is —

(i) to be sold to the breeder by that other person; or

(ii) otherwise to become the breeder’s property,

no account is to be taken of any sale or disposal under that arrangement.

(3)  For the purposes of subsection (1)(a), a plant variety does not cease to be new by virtue only of the sale or disposal at any time of —

(a) material that is not propagating material or harvested material; or

(b) propagating material if sold or disposed of as a by-product or a surplus product of the creation of that plant variety, provided that —

(i) the material is sold or disposed of without variety identification for purposes of consumption; and

(ii) having been produced during the breeding, increase of stock, test, or trial of that plant variety, the material is not or no longer required for any of those activities.

(4)  Despite subsection (1)(a), where this Act did not apply to a plant genus or species before 30 July 2014, and an application for a grant of protection is made within one year after that date in respect of any plant variety belonging to that plant genus or species, that plant variety is deemed to be new if harvested or propagating material of that plant variety has not been sold, or otherwise disposed of, in Singapore to another person, by or with the breeder’s consent for the purposes of exploitation in Singapore of that plant variety —

(a) earlier than 6 years before the date that application is made, in the case of trees or vines; or

(b) earlier than 4 years before the date that application is made, in any other case.

[16/2014]

(5)  For the purpose of subsection (1)(b), the making of an application in any country for —

(a) a grant of protection in respect of a plant variety; or

(b) the entering of a plant variety in an official register of plant varieties,

is deemed to render that plant variety a matter of common knowledge from the date of application, provided that the application leads to a grant of protection in respect of that plant variety or to the entering of that plant variety in the official register of plant varieties, as the case may be.

Varieties bred or discovered and developed by 2 or more persons independently

23.  Where —

(a) before a grant of protection has been made in respect of any plant variety, 2 or more applications in respect of that plant variety have been made;

(b) the Registrar is satisfied that the applicants concerned are persons who bred, or discovered and developed, that plant variety independently, or are successors of such persons; and

(c) the Registrar is satisfied that, but for this section, each of those applicants would be entitled to a grant of protection in respect of that plant variety,

the Registrar must make a grant of protection to the applicant whose application was made first.

Term of grant of protection

24.—(1)  The Registrar must endorse on every grant of protection the date of the grant of protection.

(2)  Subject to sections 25 and 26, the term of a grant of protection is a period of 25 calendar years from the date of the grant of protection.

(3)  The grantee must during the term of the grant of protection pay an annual fee of a prescribed amount and furnish any information that the Registrar may require in the prescribed manner and within the prescribed period.

(4)  A late fee of a prescribed amount may be imposed by rules made under this Act for the payment of the annual fee within the prescribed period but after the anniversary of the date of grant of protection where the anniversary is the first day of the one year period for which the annual fee is payable, in prescribed circumstances.

[Act 7 of 2022 wef 26/05/2022]

Grounds of invalidity of grant of protection

25.—(1)  An application for a declaration of invalidity of any grant of protection on any ground mentioned in subsection (2) may be made by any person to the Court.

(2)  A grant of protection is to be declared invalid if the Court is satisfied that —

(a) the plant variety concerned is not new or distinct within the meaning of section 22;

(b) where the grant of protection was made on the basis of an examination report by an Examiner lodged under section 18, the plant variety was not, at the time the grant of protection was made, stable or uniform within the meaning of section 22(1)(c) or (d), respectively; or

(c) the grant of protection has been made to a person who is not entitled to it, unless it has since been transferred to the person who is so entitled.

[16/2014]

(3)  The Registrar must remove from the register any grant of protection which has been declared invalid by the Court under this section.

Cancellation of grant of protection

26.—(1)  An application for cancellation of any grant of protection may be made by any person —

(a) to the Registrar, on any ground mentioned in subsection (2); or

(b) to the Court, on the ground mentioned in subsection (3).

(2)  A grant of protection must be cancelled by the Registrar at any time during its term in the event that —

(a) the grantee, after having been requested by the Registrar to provide such information, documents or material as the Registrar thinks fit for verifying the maintenance of the plant variety, failed to do so within the period specified by the Registrar;

(b) in any particular year, the annual fee required under section 24(3) to be paid, or the late fee required under section 24(4) to be paid, has not been paid within the prescribed period; or

[Act 7 of 2022 wef 26/05/2022]

(c) the grantee, after having been requested by the Registrar to propose another suitable denomination under section 38, failed to do so within the prescribed period.

(3)  A grant of protection is to be cancelled by the Court at any time during its term in the event that it is established that the plant variety is no longer stable or uniform within the meaning of section 22(1)(c) or (d), respectively.

(4)  The Registrar must remove from the register any grant of protection which has been cancelled under this section.

Renunciation of grantee’s right

27.—(1)  A grantee may, in writing to the Registrar, renounce the grantee’s grant of protection.

(2)  The Registrar must remove from the register any grant of protection which has been renounced under subsection (1).