LAW ON THE PROTECTION OF THE NEW PLANT VARIETIES
(No. 255/1999)

I. General Provisions
II. Conditions for the Grant of a Breeder's Right
III. Entitlement to Protection
IV. Examination Procedure of the Application for the Grant of the Plant Patent
V. The Protection of the Variety
VI. The Rights of the Holder
VII. Lapse of the Protection
VIII. Exploitation of the Protected Variety
IX. Protection of the Rights Concerning the New Plant Varieties
X. Offences and Penalties
XI. Provisional Measures, Evidence and Fees
XII. Final and Transitional Provisions

CHAPTER I
General Provisions

1. Object of protection
Breeder's rights on the new plant varieties of all genera and species are recognized and protected in the territory of Romania , there being granted a plant patent by the State Office for Inventions and Trademarks, in the conditions stipulated by the present law.

2. Definitions
For the purposes of the present law:

a) variety means a plant grouping within a single botanical taxon of the lowest known rank, which grouping can be:

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

distinguished from any other plant grouping by the expression of at least one of the characteristics under para 1), and

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

The hybrid with the parental forms is also considered to be a variety;

b) protected variety means cultivated variety for which a plant patent was granted by the State Office for Inventions and Trademarks ;

c) propagating material means seeds, entire plants or various parts of plants which are capable of reproducing the whole plants;

d) breeder means:

1) the person who bred or discovered and developed a new variety

2) the person who is the employer of the person provided for in para 1) or who has commissioned the activity of creating or discovering new varieties according to the present law or to an agreement providing that the breeder' s rights belong to the former;

3) the successor in title of the person from para (1) or (2), as the case may be;

e) applicant means the person who has filed an application for the grant of a plant patent with the State Office for Inventions and Trademarks,

f) holder of a plant patent means the person who holds a breeder's right;

g) Office means the State Office for Inventions and Trademarks. h) growing tests mean trials conducted in the vegetation for establishing the distinctness, uniformity and stability of the new variety in comparison with a reference variety.

3. National Treatment
Any foreign natural or legal person having the place of residence or registered office outside the territory of Romania also benefit from the provisions of the present law in the conditions of the international conventions concerning the plant variety protection, to which Romania is a party.

4. Representation
Natural and legal persons applying for the protection of a new variety of plant can be represented, in the proceedings concerning the protection of the new varieties, before the Office, by an authorized representative having the place of residence or the registered office, respectively in Romania. Representation through the authorized representative is compulsory for the foreign persons.

CHAPTER II
CONDITIONS FOR THE GRANT OF A BREEDER'S RIGHT

5. Conditions for the grant of protection
The Office grants protection for a new plant variety and issues the plant patent if the variety is:

a) new;

b) distinct;

c) uniform;

d) stable; and

e) designated by a denomination in accordance with the provisions of Article 15.

6. Novelty

The variety is new if, on the date of filing the application for the grant of the protection, or on the date on which priority is claimed, the propagating material or harvested material of the variety has not been sold or otherwise disposed of to others for purposes of commercial exploitation of the new variety, by or with the consent of the breeder:

(a) in the territory of Romania , earlier than one year before the date of filing the application for a plant patent;

(b) in the territory of other States, earlier than six years before the filing ot the application for a plant patent for fruit-trees, grapevines and ornamental trees, and earlier than four years for the other species.

Novelty shall not be lost either for the variety:

(a) that forms the subject-matter of a contract for transfer of rights, if the commercial exploitation of the new variety did not take place prior to filing the application;

(b) that forms the subject-matter of an agreement between the breeder and another person, by virtue of which the breeder authorizes the multiplication of the propagating material under his control;

(c) that forms the subject-matter of an agreement between the breeder and a third party concerning the performance of a study or of a field test or laboratory trials, or of small-scale processing trials with the view to evaluating the variety;

(d) that was disposed of to others as propagating or harvested material as a result of the use for the purposes specified in Article 29 para (1) and not employed for subsequent propagation, these acts not being deemed as a commercial exploitation of the new variety within the meaning of the provisions of Article 29 para;

(e) that was disposed of as a consequence of the fact that the breeder has displayed the new variety at an officially recognized exhibition;

(f) that was disposed of to an official body, for statutory purposes or on the basis of a contract, with a view to producing, reproducing, multiplying, conditioning or storing, provided that the person who applied for the protection preserves the exclusive right of exploitation of the variety and no other previous disposal of for commercial purposes was made; if such a disposal of the variety was made for the production of a hybrid and this was marketed, the provisions of para (1) shall be applied;

(g) that was disposed of by a company or firm to another company or firm to which it is subordinated, or, if both companied or firms belong entirely to a third such company or firm, provided that no other disposal of had taken place.

7. Distinctness

The variety is distinct if it is clearly distinguishable by the expression of one or more relevant characteristics that result from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of filing the application with the Office, or where relevant, on the date of the claimed priority.

The distinctness of a variety is defined by the morphological and physiological characteristics, provided that these characteristics are capable of precise recognition and description.

Where a plant variety has been granted protection or has been the subject of a piant patent application or of an application for similar protection or has been entered into the official register of plant varieties of any country, providing that said application results in the grant of the breeder's right for that particular variety, said variety shall be deemed a matter of common knowledge at the date of filing the patent application.

8. Uniformity
The variety is uniform if, subject to the variation that may be expected from the particular features of its propagation cycle, it is sufficiently uniform in the expression of those relevant characteristics which are included in the examination for distinctness, as well as any other characteristics used for the variety description.

9. Stability
The variety is stable, if the expression of the relevant characteristics which are included in the examination for distinctness, as well as any other characteristics used for the variety description remain unchanged after repeated propagation, or in special cases, at the end of each propagation cycle.

CHAPTER III
ENTITLEMENT TO PROTECTION

10. Entitlement to Plant Patent

The entitlement to the plant patent vests in the breeder. Where this right was assigned in the conditions of Article 35, the right vests in the person to whom this right was assigned.

If two or more breeders bred or discovered and developed a new variety jointly, entitlement to protection shall be vested jointly.

The entitlement to be granted the plant patent shall also be vested Jointly in the breeder and any other person if the breeder and the other person have agreed to joint entitlement by a written declaration.

The breeder, who created a new variety during an employment relationship is entitled, if not otherwise provided for in his employment contract, to be recognized the breeder's right and to be given an equitable remuneration.

When establishing the amount of remuneration, the economic value of the variety as well as the income the company may obtain from the exploitation of the variety estimated on the whole plant patent validity.will be taken into account. The amount of the remuneration is established by contract concluded between the breeder/breeders and the company, and in case the parties fail to come to an agreement, by the law court.

Where by a judgement there has been established that another person than that mentioned in the plant patent is entitled to be granted the protection , the Office issues the plant patent to the person entitled and publishes the change in the Official Bulletin for Industrial Property.

CHAPTER IV
EXAMINATION PROCEDURE OF THE APPLICATION FOR THE GRANT OF THE PLANT PATENT

11. Filing of a Plant Patent Application
The application for the grant of the plant patent is filed with the Office by any natural or legal person entitled to be granted the plant patent, according to Article! 0, or by the authorized representative thereof in the conditions provided for by the Law.

12. The Content of the Application for the Grant of a Plant Patent

The application for the grant of a plant patent shall contain:

(a) a request for the grant of a plant patent and the identification data of the applicant, or applicants, as the case may be;

(b) a provisional designation of the variety ;

(c) identification of the botanical taxon, the Latin and common name;

(d) a technical questionaire of the new variety in a standardized form;

(e) claiming the priority deriving from an earlier application filed in another State, where appropriate.

The application for the grant of a plant patent shall be accompanied by the following documents:

(a) the proof of payment of the application filing fee;

(b) the documents confirming the priority, if claimed;

(c) the power of attorney when the applicant is represented by an authorized representative;

(d) a declaration given by the applicant on his own responsibility that the variety for which protection is claimed has not been commercially exploited, according to the provisions of Article 6 ;

(e) breeder's/breeders' name and a declaration given by the applicant, according to which, to the best of the applicant's knowledge, no other persons have been involved in breeding, or discovering and developing the variety;

(f) document of assignment of the right to be granted the plant patent, if the applicant is not the same with the breeder;

(g) any other documents and information which can give indications about the origin and testing of the new variety, or about any application filed in another country;

(h) the geographical origin of the variety.

The plant patent application shall refer only to one variety,

The whole documentation shall be presented in Romanian.

13. Regular Filing Date of the Plant Patent Application

The regular filing date of the plant patent application is considered to be the date of filing the application with the Office, provided that at least the requirements specified in Article 12 para (1) letter (a) - (d) are fulfilled, and the proof of the application filing fee payment is produced.

The regular filing date is also the date of filing the plant patent application according to para (1), and when for justified grounds, foreign natural or legal applicants submitted the documentation in a foreign language, on the condition that a translation into Romanian of the application be produced within three months from the date of the receipt of the documentation.

14. The Right of Priority

Filing an application for a plant patent confers a right of priority starting on the date of filing, as against a subsequent filing of an application for a variety which cannot be clearly distinguishable from the former, according to Article 7.

Any person who previously submitted a first application in a state party to an international convention, in the field of new plant variety protection, to which Romania is a party, enjoys a right of priority of twelve months from the date of filing the first application, if, within this period, requests with the Office the grant of a patent for the same variety, provided that the first application has been duly filed on the date of claiming the priority.

In order to prove the claimed priority from another state, the applicant shall submit to the Office, within three months from filing the application, a true copy of the documents of the first application, as well as the propagating material or other evidence proving the identity of the variety for both applications.

The claimed priority shall be recognized according to para (3), provided that the prescribed priority fee has been paid according to the Law .

Failure to observe the time limit provided for in para (2) or failure to pay the priority fee shall bring about the non recognition of the claimed priority.

Acts done within the time period provided for in paragraph (2), such as the filing of another application, publishing or use of the variety which is the subject-matter of the first application, do not constitute a ground for refusal of a subsequent application and do not give rise to any rights for third parties.

15. Variety denomination

The variety shall be designated by a generic denomination which must enable the identification thereof.

The variety denomination shall be specified in the granted plant patent and shall also be used after the expiry of the validity term of the plant patent.

The variety denomination shall differ from any other denomination which designates another existing variety belonging to the same plant species or a closely related species .

The variety denomination shall not consist only of figures, except where this is an established practice for the designation of certain plant varieties.

The variety denomination shall not mislead or cause confusions concerning the characteristics, value or the identity of the variety or of the breeder.

If an application for the grant of a plant patent is filed in Romania and simultaneously in other countries, the variety shall be registered under the same denomination in all the countries wherein such an application was filed, unless the Office considers the denomination unsuitable.

If, by virtue of a prior right, a denomination has already been used for another variety, or may cause confusion in the use of the denomination of another variety, the Office will request the applicant to submit another denomination for his variety.

In order to establish a correct denomination, the applicant may ask to the Office, subject to payment of the preliminary examination fee, a search concerning the variety denomination.

Any person who offers for sale or marketing propagating material of a protected variety shall be obliged to use the denomination of this variety even after the expiration of the period of protection.

When a protected variety is offered for sale or marketed, it may be affixed a trademark, or a trade name, or any other similar indication making possible the identification of the plant variety on the market.

The variety denomination shall be entered into the National Register of Plant Patents at the same time with the issuance of the piant patent.

Where at least one of the conditions provided for in paras (1) - (9) were not fulfilled, the Office shall decide the cancellation of the registered denomination.

16. Formal Examination of the Plant Patent Application

Within two months from the date of filing the application for the protection of a new variety, the Office checks whether the documentation filed by the applicant satisfies the formal requirements for the application, provided for in Article 10 paras (1) -(4) and Article 12.

If following the formal examination it is ascertained that the application meets the requirements provided for in paragraph (1), the Office enters the application into the National Register of the Plant Patent Applications . Entering the application into the National Register of the Plant Patent Applications is notified to the applicant.

The applications for the protection of the new varieties filed with the Office are published, within three months from the date of filing, in the Official Bulletin for Industrial Property, the Plant Patents Section.

When the application for the grant of a plant patent does not meet one of the provisions of Article 10, and Article 12, the Office decides, within an examination board, the rejection of the application.

17. Substantive Examination of the Plant Patent Application

The Office shall carry out the substantive examination of the plant patent application as to novelty and the variety denomination according to Articles 6, 15 and 16 within nine months of the application registration date.

The Office notifies the applicant or his successor in title the result of the substantive examination of the application; where the result is negative, a term of three months at the most is accorded for reply.

The applicant, for justified grounds, can ask the Office for a two- month extension of the term of reply.

If after the examination as to substance, the Office decides, that the application meets the requirements laid down in Articles 6, 10, 12 and 16. the variety shall undergo a technical examination by a competent national authority to which the Office will send the documentation within one month from the decision.

Where the application has not met cumulatively the requirements of Article 6, Article 10, Article 12, Article 16 and the applicant neither answers to the notification of the Office within the prescribed time period, nor applies for an extension, the Office shall reject the application.

18. Technical Examination of the New Variety

The variety shall undergo a technical examination in order

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

(b) to establish that the variety is distinct, uniform and stable pursuant to Articles 7-9.

(c) to establish the official description of the variety.

The technical examination of the new variety will be performed by a competent national authority, if the applicant fails to present, at the date of filing the application with the Office, growing tests carried out by another internationally recognized competent authority.

Where the growing tests for a new variety were not performed by the national authority or by an internationally recognized authority, the Office may take into account the technical report drawn up by another competent authority, with the applicant's consent, bought with the provisous that the prescribed fee were paid.

The competent national authority or the company delegated for performing the growing tests, carries out the necessary tests to verify whether the provisions of Articles 7-9 have been satisfied. The applicant shall make available to the authority conducting the tests. samples of the propagating material in the requested amount and shall notify to the Office the date of delivery.

Within two years from starting the growing tests, the national competent authority, on the basis of the results obtained, draws up a technical report comprising the test results, and the morphological and physiological characteristics of the tested variety, in comparison with the reference variety and the conclusions regarding the fulfilment of the requirements laid down in Articles 7-9.

Where the growing tests have been performed by a foreign competent authority or by the breeder, they may be subjected to an analysis by the national authority. The validity of the tests is confirmed by a notification sent to the Office, within six months from receiving the documentation. The validity of the tests shall be refused by the national authority in writing and on justified grounds.

The Office takes the decision of rejecting the application for a plant patent if the validity of the tests is refuted by the national authority.

The decision of the Office may be appealed against by the applicant at the Board of Appeal of the Office, within three months from the communication.

The Board of Appeal may decide:

(a) to accept the applicant's appeal and to grant the plant patent;

(b) to accept the applicant's appeal, and to return the application to the substantive examination and, request the repetition of the tests, where appropriate;

(c) to reject the applicant's appeal

19. Testing of the New Variety

The national authority, with a view to testing the new variety, may conduct its own growing tests or may accept the tests performed by the applicant.

The growing tests are conducted according to the methodology approved by the Ministry of Agriculture and the State Office for Inventions and Trademarks, based on the international guidelines for testing of the new plant varieties.

After having received the documentation and having performed the formal examination, the Office together with the national authority establishes, the site and the amount of material needed for organizing the trials and notifies to the applicant, inviting him to submit the requested propagating material. The Office and the national authority may request the applicant to submit all information, documents and materials necessary for the purpose of performing the technical examination in good conditions.

If, within the time limit set by the Office, the information, documents or requested materials have not been submitted to the applicant, the application will be rejected.

The applicant has the right to ask for the inspection of the crops, during the period of testing the new variety.

20. Decisions of the Office

The Office, relying on the technical report of the national authority or of an internationally recognized authority, shall decide whether the new variety meets cumulatively the requirements provided for by Articles 7 -9 and Article 16 and, where appropriate, shall grant the plant patent, or reject the application.

The decision to reject is taken by the Office only after the applicant was notified the grounds for rejection and was given at least a three -month period for submitting comments.

The decisions to grant plant patents, to which the description of the variety is attached, are published in the Official Bulletin for Industrial Property within three months from the decisions.

During the validity term of the plant patent the official description of the patented variety may be amended by the Office or the applicant, by mutual agreement, on the basis of the evolution of the agrobiological knowledge and methodology describing the variety, without affecting thereby the scope of protection and the characteristics of the new variety. Amendments brought to the official description are published in the Official Bulletin for Industrial Property.

The decisions of the Office may be appealed against by the applicant, on Justified grounds, said being lodged with the Board of Appeal of the Office according to Article 38 (1).

21. Provisional protection

During the period between the publication of the plant patent application under Article 16 para (3) and the grant of the plant patent, the applicant shall enjoy provisionally all rights conferred to the patent holder, as provided for in Article 27.

The infringement of rights provided for in para (1) by third parties entails for the infringers the obligation to pay the damages, according to the civil law, the payment of the damages being executory once the right has been granted.

Any person who, during the provisional protection commits, without the holder's authorization, the acts provided for in Article 27, shall be responsible under Article 40 para(1).

When the plant patent application is rejected, the applicant shall not benefit from the rights provided for in para (1).

22. Extension of the Time Limit

The time limit for the examination of the application for the plant patent, as well as for checking the growing tests may be extended by one year. subject to payment of the fees provided for in the Appendix, items 3 and 4.

23. Withdrawal of the Application

The plant patent application may be withdrawn by a written request submitted by the applicant to the Office, any time until a decision for the grant of the plant patent is taken.

24. Revocation of the Decision to Grant the Plant Patent

Within three months from publication any person may request to the Office the revocation of the decision to grant a plant patent, where at least one of the conditions provided for in Articles 6-10 and Article 15 was not satisfied; the request shall be made in writing and substantiated.

The request for revocation shall be examined by the Board of Appeal within three months from filing thereof with the Office.

If the Board of Appeal considers necessary, it may ask the national authority to repeat the growing tests for the variety or to use the services of an expert who shall take part in the reexamination of the new variety.

The decision of the Board of Appeal is communicated to the parties within fifteen days from pronouncing.

The decision of the Board of Appeal may be appealed against, according to the provisions of Article 38.

The final decisions are published in the Official Bulletin of Industrial Property, within thirty days.

25. Issuance of the Plant Patent and the Registration of the Plant Variety Denomination

The plant patent is issued by the director general of the Office, on the basis of the decision to grant the plant patent.

The plant patent and the denomination of the variety are entered into the National Register of Plant Patents which is open to the public and may be consulted by third parties, subject to payment of the inspection fee provided for by the Law.

Where the application is filed by more applicants, the plant patent is issued to the first applicant mentioned in the application and the other are issued a duplicate of the plant patent.

The breeder, when not the holder of the patent, is entitled to receive, upon request, a duplicate of the issued plant patent.

CHAPTER V
THE PROTECTION OF THE VARIETY

26. Duration of the Variety Protection

The duration of protection of the variety is 25 years beginning with the date of granting the protection for the new variety.

For new varieties of fruit-trees, grapevine and ornamental trees, the duration of the plant patent is of 30 years from the date of granting the protection.

CHAPTER VI
THE RIGHTS OF THE HOLDER

27. Exclusive Right of the Plant Patent Holder

The plant patent holder benefits from the exclusive right of exploitation of the new variety and of the right of preventing any person from performing, without his authorization, the following acts concerning the propagating and harvested material of the protected variety;

(a) production or reproduction;

(b) conditioning for the purpose of propagation;

(c) offering for sale;

(d) selling or other marketing;

(e) importing;

(f) exporting;

(g) stocking for one of the purposes mentioned in para (a) to (f).

The provisions from para (1) shall also apply to:

(a) varieties which are essentially derived from the protected variety, where the protected variety is not in itself an essentially derived variety;

(b) varieties which are not clearly distinguishable from the protected variety in accordance with Article 7;

(c) varieties whose production requires the repeated use of the protected variety;

According to para 2 (a) a variety shall be deemed to be "essentially derived" from another variety when:

(a) it is predominantly derived from the initial variety or from a variety that is itself predominantly derived from the initial variety;

(b) it is distinguishable, according to Article 7, from the initial variety which it is derived from;

(c) it conforms to the initial variety in the expression of the essential characteristics resulting from a genotype or combination of genotypes thereof, except for the differences resulting from the act of derivation.

28. Exceptions to the Exclusive Right of the Plant Patent Holder

The rights conferred by a plant patent, provided for in Article 27, shall not extend to the following acts:

(a) the use of the variety privately and for non-commercial purposes;

(b) the use of the variety for experimental purposes, as well as in the process of breeding, as starting material for producing other varieties.

The persons who use the protected variety for the purposes provided for in paragraph (1) are obliged to furnish the information requested by the plant patent holder.

29. Exhaustion of the Holder's Right

The holder's right shall not extend to the acts referring to any propagating or harvested material of the protected variety or of a variety covered by the provisions of Article 27 (2) and to those referring to parts of the plant of the protected variety or to any material derived from this variety which was sold or marketed by the holder or with his consent, unless such acts involve:

propagation of the protected variety;

exporting the material of the protected variety to a third country which does not protect the varieties of the genera or species to which the new variety belongs, except where the exported material is used for food consumption purposes.

CHAPTER VII
Lapse of the Protection

30. Nullity of the Plant Patent

Any person having a legitimate interest may file with the Office a request for annulment of the plant patent any time during the period of protection.

The Board of Appeal shall declare the plant patent null and void when it is established:

(a) that the variety was not new, within the meaning of Article 6, or distinct within the meaning of Article 7 at the date of filing the application, or, where appropriate at the date of claiming the priority;

(b) that the granting of the plant patent has been essentially based on trials carried out or on information and documents submitted by the breeder, and the variety was not uniform according to Article 8 or stable according to Article 9 on the date on which the plant patent was granted.

(c) that the person who has been granted the plant patent was not entitled thereto, except when the right was transmitted to the person entitled.

The decision of the Board of Appeal is communicated to the parties within 15 days from pronouncing and may be subjected to appeals provided for in Article 38.

The decision of nullity of the plant patent become final is entered into the National Register of the Protected Varieties and is published in the Official Bulletin for Industrial Property, the Plant Patent Section.

The decision of nullity of the plant patent comes in force from the date of filing with the Office of the application for the plant patent.

31. Forfeiture of Rights

The Office shall have the holder'rights forfeited when:

a) the holder does not meet the obligation of maintaining the protected variety, under Article 33 (1);

b) the holder does not answer to the request of the Office or of the national authority to supply information or material for the purpose of verifying the protected variety during the validity period of the plant patent;

c) the holder does not submit a proposal for an adequate designation of the plant variety in the prescribed time whenever the Office asks for a change of the designation because it no longer fulfils the conditions provided for in Article 15;

d) the holder fails to pay the annual fees for keeping the plant patent in force;

The Office shall not have the holder's rights forfeited prior to notifying him the non compliance with one of the obligations provided for in paragraph (1) (a) - (c). Forfeiture of rights shall be published in the Official Bulletin for Industrial Property and shall take effect on the date of entering into the National Register of Plant Patents.

The plant patent holder may request the Office to revalidate the plant patent on justified reasons, within six months from the date of publishing the forfeiture.

The decision of the Board of Appeal concerning the request for revalidation of the patent is communicated to the parties within 15 days from pronouncing and may be subject to appeals under Article 38. The revalidation of the plant patent is published in the Official Bulletin for Industrial Property.

The exploitation of the variety by the third parties, during the time period from the forfeiture of rights until revalidation of the patent does not constitute an infringement of the rights under Articles 25 and 27.

32. Renunciation to the Plant Patent

The holder may renounce to the plant patent any time during the protection period on the basis of a written declaration submitted to the Office.

The holder is obliged to communicate his intention of renunciation to the breeder. Upon the breeder's request the holder shall be obliged to transfer his right in the patent to him prior to filing the written statement for renunciation.

Renunciation takes effects from the date of filing with the Office. Renunciation is entered into the National Register of Plant Patents and is published in the Official Bulletin for Industrial Property.

Where the plant patent was the object of a license contract, renunciation is possible only with the consent of the licensee.

CHAPTER VIII
Exploitation of the Protected Variety

33. Maintenance of the Protected Variety

The plant patent holder shall be under an obligation to maintain the protected variety during the whole duration of the plant patent so that the variety keep all the characteristics presented in the official description, on the date of the grant of the plant patent.

In order to verify the distinctness, uniformity and stability of the new variety, the national authority may ask the holder to supply seeds, propagating material, documents or any other information required.

At the request of the Office, the plant patent holder shall provide, throughout the duration of the patent, the information and documents attesting the existence of the variety and the maintenance of its characteristics.

Where the holder does not comply with the request, the Office shall have his rights forfeited according to Article 31 (1) (a).

34. Transfer of Rights

The right to apply for a plant patent, the right in the plant patent, the rights deriving from the filing of the application for the plant patent with the Office, as well as the rights derived from the plant patent may be transferred to other natural or legal persons.

The transfer of rights is performed by assignment contract, by license contract or by legal or testamentary succession.

The rights to a new variety are transferred also in case of enforcement of a judgement on the plant patent holder, under the conditions of the Law.

The transfer of rights does not affect the rights acquired by the third parties before the date of transfer.

The assignment or the exclusive license shall be entered into the National Register of Plant Patent Applications, or the National Register of Plant Patents and becomes opposable to third parties from the date of registration.

35. Assignment Contract

The variety for which an application for the grant of a patent has been filed or for which a plant patent has been granted may be the subject-matter of an assignment contract.

36. License contract

A variety for which a patent was granted may form the subject-matter of a licence contract.

Where an exclusive license is granted, the licensee benefits from the exclusive right of exploitation of the new variety, within the limits stipulated in the license contract.

Whenever a non-exclusive license is granted, the plant patentholder keeps the right to grant licenses to third parties. The licensee has no right to transfer a right of exploitation of the variety to third parties.

The plant patent holder may publish his offer to grant the license for the exploitation of the protected variety in the Official Bulletin for Industrial Property.

The Office shall register the exclusive license contract in the National Register of Plant Varieties and publish it in the Official Bulletin for Industrial Property. The other license contracts may also be entered into the Register at the request of the interested party.

37. Compulsory License

At the request of any interested party the Office may grant a compulsory license after the expiration of a five-year period from the date of granting the plant patent when:

a) the holder does not exploit the protected variety or cannot justify his inaction;

b) the protected variety presents public interest.

The compulsory license is non-exclusive and is granted in the special conditions established, with regard to the duration, the exploitation of the variety and the amount of the compensation to which the plant patent holder is entitled.

The compulsory license confers on the licensee the right to receive the original propagating material from the plant patent holder.

The grant of a compulsory license does not prevent the plant patent holder from exploiting the variety or from granting licenses to third parties.

The compulsory license is granted by the Office, through the Board of Appeal, the members of which shall also include representatives of the Ministry of Agriculture and Food Industry.

If there has been ascertained that the licencee failed to fulfil the obligation to exploit the variety in the conditions stipulated, the compulsory license may be withdrawn, upon the plant patent holder's request, by the Office, through the board provided for in para (5).

The decisions of the Board of Appeal concerning the grant or the withdrawal of the compulsory license is communicated to the parties within 15 days from pronouncement and are subject to the appeal proceedings provided for in Article 38.

The Office registers the compulsory license in the National Register of the Plant Patents for protected Varieties and publishes it in the Official Bulletin for Industrial Property.

CHAPTER IX
PROTECTION OF RIGHTS CONCERNING THE NEW PLANT VARIETIES

38. Appeals against the Decisions of the Office

The decisions of the Office can be appealed against with the Office, by interested persons, within three months from communication.

The appeal, or, as the case may be, the request for revocation or cancellation of the plant patent shall be examined by the Board of Appeal within three months from the filing thereof. The composition of the Board shall be different from the composition of the Examination Board and shall consist of representatives of the Ministry of Agriculture and of the Office.

The decision of the Board of Appeal is communicated to the parties within 15 days from pronouncement and may be appealed against in the Law Court of Bucharest, within 30 days from communication.

The decision of the Law Court of Bucharest may be appealed against at the Court of Appeal of Bucharest , within 15 days from communication.

Upon request by the Court, the Office is obliged to submit the necessary documents and information for judging the cause.

39. Competence of the Law Courts

The litigations concerning the capacity of breeder, plant patent holder or the other rights derived from the plant patent, including the breeder's patrimonial rights from the assignment or license contract, or those litigations referring to failure to comply with the provisions of Article 33 para (1) and Article 34 are of the competence of the law courts.

CHAPTER X
OFFENCES AND PENALTIES

Section 1

40. Offences of Counterfeiting and Disclosure

Any of the acts specified in Art. 27 as well as any of the acts mentioned below, performed without the plant patent holder's authorization shall be deemed counterfeiting:

a) using another denomination than the registered denomination of the new variety, for the propagating material produced and sold;

b) using the registered denomination of a new variety for the propagating material produced and sold, which does not belong to this variety;

c) assigning the propagating material produced and sold a denomination close to the denomination of the protected variety, that may cause confusions;

d) selling the propagating material under the false indication that it belongs to the variety, for which a plant patent was granted, thus misleading the buyer;

e) forgery in the registration of a variety in the National Register of Plant Patents;

f) drawing up false reports, as well as the falsification of the documentation required by the present Law;

g) submitting documents containing false information.

The facts provided for in item (1) shall constitute an offense punishable with imprisonment for a term of 3 months to 3 years or with a fine of 3 million lei to 15 million lei, the amount thereof being updated according to inflation rate. The attempt shall be punished.

The disclosure of data and information representing a trade secret referring to a new variety, for which an application for the grant of the plant patent was filed, shall be punished according to the Criminal Law. The attempt shall be punished.

If any of the offences provided for in para (1) and (3) is committed by a clerk in the exercise of his duties, it shall be punished by imprisonment from 6 months to 5 years.

The penal action shall be started upon complaint by the injured party.

For the prejudices caused to the plant patent holder, said holder is entitled to claim damages according to the common law, and the counterfeited goods are seized according to the Criminal Law.

Section 2

41. Legal Action against Counterfeiting

A legal action against counterfeiting can only be initiated by the holder after the publication of the application for the grant of the plant patent.

When a license was granted and if not otherwise provided for in the contract, the licensee cannot sue for counterfeiting without the consent of the plant patent holder.

The holder of an exclusive license can initiate a legal action against counterfeiting, if the plant patent holder was informed about this and did not take any action within a time limit asked by the licensee.

When a legal action against counterfeiting was started by the plant patent holder, any of the licensees can intercede to demand that the prejudice caused by counterfeiting committed be repaired.

CHAPTER XI
Provisional Measures, Evidence and Fees

42. Provisional Measures, Evidence

The plant patent holder may request the Court:

a) to order provisional measures, when there is a risk of infringement of the rights deriving from the plant patent and if this infringement is likely to cause irreparable prejudice and if there is a risk of evidence being destroyed;

b) to order immediately after suing, measures meant to cease infringement of the rights deriving from the plant patent, committed by a third party, on the occasion of introducing in the commercial circuit some imported merchandise, which implies an infringement of these rights;

c) to order measures of seizing or destroying the propagating material specified in Article 40 (1) (b) - (d).

The Law Court may dispose that the infringer of the rights deriving from the plant patent should inform the holder about the identity of the third parties that took part in producing and distributing the propagating materials specified in Article 40 (1) (b) - (d).

The provisions of Articles 581 and 582 from the Code of Civil Law Proceedings shall be applicable to order the measures specified in item (1).

When provisional measures are ordered, the law court may oblige the plaintiff to pay a bail, in the amount it establishes.

The law court may ask the plaintiff to supply all the evidence of proof available, in order to prove that he is the holder of the right infringed upon or the infringement of which is unavoidable.

Where the evidence of proof supporting the claims of the plaintiff are under the control of the defendant, the law court may request the defendant to produce the evidence, provided that confidentiality of information be guaranteed, according to the law.

The law court shall order that the plaintiff pay the defendant all damages resulted from an abusive exercise of the procedural rights concerning the variety.

43. Fees

The fees for the procedures provided for by the present Law shall be paid into the bank account of the Office, in the amount and time limits stipulated in the Appendix which forms an integral part of this Law.

The natural and legal persons who are applicants or plant patent holders shall pay the fees in lei. The foreign natural and legal persons, who are applicants, plant patent holders or who were transferred a right of industrial property, shall pay the fees in hard currency. Where there are several Romanian or foreign applicants or holders, the fees owed jointly shall be paid in hard currency.

The applicants or holders of plant patents who were not transferred the rights or did not transfer their right in the conditions of the law, before the time of payment, shall pay the fees provided for in the Appendix, reduced by 50 % of each fee, if they are natural or legal persons, or autochthonous research or education institutes.

The reduction provided for in item (3) shall be applicable to each procedure separately, on the date of payment, if the conditions stipulated in the respective paragraph are satisfied and sustaining documents are supplied.

The fees for the plant patent applications and for the plant patents to be paid in the proceedings before the Office shall constitute income and shall be spent in extra-budgetary regime according to the Law.

From the fees paid to it, the Office shall pay the national or international technical authorities the amounts due for the performance of the growing tests, where appropriate.

44. Competence

The competence in the enforcement of the present Law vests in the Office and the Ministry of Agriculture and Food Industry.

The Office as a specialized body subordinated to the Government and sole authority within the territory of Romania for the grant of the protection in the field of industrial property. grants plant patents for the new varieties, pursuant to the present Law and in compliance with the international conventions to which Romania is a party, and has the following duties:

a) files, publishes and examines the applications for the grant of the plant patents for the new varieties;

b) keeps the National Register of the Plant Patent Applications and the National Register of the Plant Patents;

c) issues regularly the Official Bulletin for Industrial Property - the section for varieties protected by plant patents, which contains information concerning the plant patent applications, the denomination of new varieties and the proposals for denominations, as well as the new varieties for which plant patents were granted;

d) ensures exchange of publications with the similar foreign national administrations and with the specialized international organizations;

e) establishes, together with the Ministry of Agriculture and Food Industry, the characteristics laid down in the technical questionnaire, pursuant to the international guidelines for the protection of the new varieties;

f) certifies the authorized representatives for the procedures for the protection of the new varieties before the Office.

The Ministry of Agriculture and Food Industry, in exercising its prerogatives:

a) decides upon the methodology for testing the new varieties from a technical point of view;

b) cooperates with the Office, with the breeders' associations, with the association of the plant patents holders, with the association of the producers of seed and propagating material, with the Academy of Agricultural and Sylvicultural Sciences "Gheorghe lonescu §isesti", with the specialized research institutes and stations in order to establish the characteristics involved in the protection of the new varieties;

c) designates the representatives of the Ministry of Agriculture and Food Industry in the Board of Appeal.

The Office and the Ministry of Agriculture and Food Industry develop relations with the similar governmental organizations and international organizations specialized in the protection of new varieties of plants, to which Romania is a party.

45. Protection of the New Varieties Abroad

The Romanian natural and legal persons shall have the right to choose the State wherein they file their first application for the grant of a plant patent or for a similar title of protection.

CHAPTER XII
FINAL AND TRANSITIONAL PROVISIONS

46.

The applications for plant patents, filed with the Office under the conditions of the Patent Law no. 64/1991 and of the Government Decision no. 152/1992 for the approval of the regulations implementing the Patent Law no. 64/1991 for which no decision was taken to grant or refuse grant, are solved according to the provisions of this Law.

This Law shall enter into force within 90 days from the date of publication in the Official Gazette of Romania.

Upon the proposal of the Office, the Government shall approve, within 90 days from the publication of this Law in the Official Gazette of Romania, the regulations implementing this Law.