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You here:  Main Law on the Protection of Selection Achievements

Law on the Protection of Selection Achievements

Source: EC section, 05/23/2013 14:45:24

 

Law of the Republic of Kazakhstan dated July 13, 1999 № 422-I 
On the Protection of Selection Achievements

 

Chapter 1. General Provisions

Chapter 2. Patentability of selection achievement

Chapter 3. Examination of an application for a patent for a selection achievement

Chapter 4. Author and patent

Chapter 5. Using the selection achievement

Chapter 6. Termination of the Patent

Chapter 6-1. The Board of Appeal and patent attorneys

Chapter 7. FINAL PROVISIONS

(Articles 1-3)

(Articles 4-7)

(Articles 8-10)

(Article 11-17-1)

(Article 18-20-1)

(Articles 21-22)

(Article 22-1 – 22-6)

(Articles 23-29)

 

 

Chapter 1. General Provisions

Article 1. Relations regulated by this Law

This Law defines the legal, economic and organizational basis for activities in the field of selection achievements, regulates property and related personal non-property relations arising in connection with the creation, identification, breeding, legal protection and use of selection achievements.

Article 2. The basic concepts used in this Law

In this Law the following basic concepts:

1) the exclusive right – property right of the patent owner to use the selection achievement by any means at its discretion;

2) Appeal Board – a division of the authorized body of pre-trial disputes;

3) animal breeding – pure-bred, high quality, highly productive animals, responsible type, direction and level of productivity of the breed, having booked breeding animal or breeding certificate;

4) breeding products (material) – breeding and breeding animals and semen, embryos, hatching eggs, day-old chicks, eggs, larvae and young fish breeding uterine bee breeding bee colonies and bee packages received from breeding animals;

5) The State Commission for Variety Testing crops – an organization under the jurisdiction of the authorized body in the field of agriculture, carry out examination of plant varieties on patentability and serviceability;

6) Bulletin – an official periodical on the protection of breeding achievements;

7) the license agreement – a contract in which the patent owner (licensor) grants the other party (licensee) the right to temporarily use a selection achievement in a certain way;

8) The state commission – the State Commission for Variety Testing of crops and the State Commission on testing and testing rocks of the authorized body in the field of agro-industrial complex;

9) planting – planting material of any kind, including reproductive and vegetative propagating material (seeds, seedlings, plants and plant parts intended for their reproduction);

10) the applicant – a natural or legal person who has applied for a patent for the selection achievement;

11) the patent owner – the owner of the patent;

12) patent attorneys – citizens of the Republic of Kazakhstan, which in accordance with the laws of the Republic of Kazakhstan have the right to represent natural and legal persons to the competent authority and expert organizations;

13) selection achievement – a new plant variety, a new breed of the animal, resulting from human creativity, which granted a patent;

14) The author of a selection achievement (the breeder) (hereinafter – author) – an individual that created, or discovered and brought variety or breed;

15) State Register of selection achievements – the State Register of the Republic of Kazakhstan protected plant varieties and the State Register of the Republic of Kazakhstan protected animal species, which include the variety or breed for which patents are granted;

16) State Register of selection achievements allowed to be used – the State Register of the Republic of Kazakhstan of breeding achievements permitted for use, which includes a variety or breed, approved for use in the manufacture of household;

17) grade – a group of plants of one culture, similar in economic and biological properties and morphological characteristics, related by birth, transmit their characteristics by inheritance to future generations and different from any other plant grouping of the same botanical taxon at least one attribute. The protected categories of varieties are: clone, line, first generation hybrid, population;

18) commodity animal – the animal used for production of commercial products;

19) the breed – a group of farm animals one kind of common origin, developed under the influence of human creativity in certain economic and natural conditions, quantitatively sufficient for cultivation “in itself” and having the economic and tribal values, supported the selection, recruitment, establishment of their respective genotype technology conditions, as well as a certain specificity of morphological, physiological and economically beneficial properties that distinguish it from other breeds of the same species. The protected categories of rock are: type, cross the line;

20) State Commission on testing and testing of rocks – an advisory body of the authorized body in the field of agriculture, carrying out examination of livestock breeds on patentability and serviceability;

21) seeds – all forms of botanical seed: the actual seeds, fruits, stems, fruits of the complex, bulbs and tubers.

22) Breeding animal – an animal that corresponds to the type and direction of the productivity of rock obtained from animal-breeding products.

 

Article 3. Legal Protection of Selection Achievements

1. The right to the selection achievement protected by the legislation of the Republic of Kazakhstan and confirmed by a patent. The patent certifies the exclusive right of the patent owner to use the selection achievement, its priority and authorship of the breeder.

3. Examination and testing selection achievements on patentability and serviceability as an activity in the field of selection achievements made ​​by the authorized body in the field of agriculture, which is the State Register of relevant breeding achievements permitted for use in the production.

4. The extent of protection conferred by a patent for a selection achievement is determined by a set of characteristics included in the description of the variety or breed.

5. The term of a patent for plant varieties is 25 years old, animal breeds – 30 years for vines, woody ornamental, fruit and forest cultures, including their rootstocks, is 35 years from the filing date in the expert organization.

The validity of a patent shall be extended by the authorized body at the request of the patent holder, but for no more than 10 years.

Article 3-1. The authorized state body in the field of selection achievements

1. The authorized state body in the field of Selection Achievements (hereinafter – the authorized body) – a government body, defined by the Government of the Republic of Kazakhstan and performing state regulation in the field of selection achievements.

2. The competence of the authorized body include:

1) participate in the implementation of state policy in the field of legal protection of selection achievements;

2) issuance of patents for selection achievements;

2-1) approval of the application form for registration of the contract of assignment of a patent or the right to obtain a patent for a selection achievement;

2-2) approval of the application form for registration of the license contract or sub-license contract for the use of the selection achievement;

3) monitor the activities of individuals and legal entities using selection achievements;

4) drawing up protocols and consideration of cases on administrative offenses, the imposition of administrative penalties;

5) exercise other powers stipulated in this Law, other laws of the Republic of Kazakhstan, acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan.

Article 3-2. State monopoly in the field of selection achievements

1. Activities for accepting applications and conducting a preliminary examination of applications for selection achievements, the examination of contracts for the assignment of a patent or the right to obtain a patent for a selection achievement, the license (sublicense) agreements, conducting the State register of breeding achievements, publication of information on selection achievements, preparation for issue of security documents, including changes in the application materials, grant and state registers of protected plant varieties and animal breeds; an extract from the State Register of selection achievements; Renewal of the term of payment by the applicant to six months from the date of expiry of the deadline; issuing certificates of the author, applications and their duplicates; maintaining in force the extension of the grant and the publication of information on the issue, maintaining in force, extension of protection; receiving requests for open licenses; examination of supplementary agreements to the contracts; publication of information about the registration of contracts; search for patent documents (numbering and names); implementation and publication of printed and electronic publications; examination of the pledge agreement, refers to a state monopoly, and made an expert organization established by a decision of the Government of the Republic of Kazakhstan in the legal form of the republican state enterprise on the right of business.

2. The activities technologically related to the activities of expert organizations, include:

1) production of a copy of the application;

2) submission of certificates, statistical data on protection documents on selection achievements;

3) perezachet and confirmation of payments.

3. The prices for goods (works, services) produced and (or) sold subject to a state monopoly, established by the Government of the Republic of Kazakhstan.

 

 

Chapter 2. Patentability of selection achievement

 

Article 4 Conditions for patentability of a selection achievement

1. A patent is granted for a selection achievement, which has the novelty, distinctness, uniformity and stability.

2. Variety, breed considered new if on the date of filing the seeds or other propagating material, breeding material of this selection achievement are not sold or transferred to other persons by the author or his successor for the variety or breed in the area:

1) the Republic of Kazakhstan – earlier than one year before the filing date;

2) any other State – earlier than four years for annual crops and earlier than six years for perennial crops, rocks before the filing date.

Variety, breed, date on which the inclusion of relevant genera and species in the State Register of selection achievements registered in the State register of breeding achievements permitted for use, may be deemed patentable without presenting a variety or breed requirements of novelty.

The validity of the patent referred to in Article 3 of this Act, for such selection achievements is reduced for the period from the year of admission to the use of the year of grant. With respect to such selection achievements not apply provisional legal protection provided for in Article 9 of this Act.

3. Variety, breed meet the criteria of distinctness, if they are clearly distinguishable from any other variety or breed whose existence at the time the application is well known. Applying for a patent or application of a variety or breed in the official register new varieties, breeds in any country makes variety or breed generally known from the filing date, provided that the application leads patent was issued or the variety or breed were included in these registries .

Variety of common knowledge, rocks can also be installed into the cultivation, use and publication. Signs to help you determine the descriptive and features of the variety or breed should succumb to restore and accurate description.

4. Variety, breed considered homogeneous when considering the characteristics of their plant propagation of the variety or breed is uniform in the selectable characters.

5. Sort, breed meet the criterion of stability if their basic characteristics remain unchanged after each propagation, and in the case of reproduction of a particular cycle – at the end of each such cycle.

Article 5. Application for a patent for a selection achievement

1. An application for a patent is served in the expert organization.

An application may be filed as an electronic document, certified by digital signature.

The right to file an application for a patent belongs to the author or his successor.

If the selection achievement created, discovered or deduced in line of duty or duty, the right to file an application for a patent belongs to the employer unless the contract between the author and the employer does not provide otherwise.

An application may be filed by several applicants, if they jointly created or discovered and brought out a selection achievement or are the successors of the authors.

An application may be filed through a representative, who by virtue of office, based on a power of attorney does business related to obtaining a patent.

eleven. Employees of the State Commission for Variety Testing of crops during the period of the commission does not have the right to apply for a patent of the Republic of Kazakhstan for a selection achievement, except breeding to create, identify and remove the selection achievement, carried out prior to the implementation of labor functions in the state commission .

2. Individuals residing outside of the Republic of Kazakhstan or foreign entities doing business to obtain patents and keeping them in force, filed an objection to the Appeals Board and take part in their examination through the patent attorneys registered in the authorized body.

Individuals permanently residing in the Republic of Kazakhstan but temporarily residing abroad may conduct business related to patents, without a patent attorney when specifying an address for correspondence in the Republic of Kazakhstan.

The authority of a patent attorney shall be certified by a power of attorney issued by the applicant or patentee.

3. An application for a patent for a selection achievement is issued to each plant variety or breed of animal and should contain:

1) application for grant of a patent;

2) the form of the selection achievement;

3) the power of attorney in the case of office work through a representative.

An application for a patent for a selection achievement accompanied by proof of payment of the application in the prescribed amount, and a document certifying the reduction of its size that can be submitted together with the application or within two months from the date of receipt of the application. With appropriate payment, this period may be extended, but not more than two months.

In case of failure of payment documents in due time the application is considered filed.

4. An application for a patent is submitted to the state or Russian language.

5. The requirements for application documents and proceedings are determined by the authority.Other documents and materials required for the examination of the claimed variety or breed, are available upon request of the State Commission.

The procedure for examining an application for substantive examination is determined by the Government of the Republic of Kazakhstan.

 

Article 6. Name of the selection achievement

1. Name of the selection achievement should allow to identify the selection achievement, to be brief, differ from the names of existing selection achievements of the same or similar botanical or zoological species. It should not consist solely of figures, misleading with respect to the properties, origin, significance of the selection achievement or the identity of the breeder, should not contradict the principles of humanity and morality.

Validation of the proposed denomination of the selection achievement carried out by state commissions, within two months from the date of receipt of the application materials from the expert organization.

2. If the application for a selection achievement for the same variety or breed is supplied to the Republic of Kazakhstan and other countries, the name of the same variety or breed shall be identical, except for the cases when the name of the variety or breed does not meet the requirements of paragraph 1 of this article.

3. If the name of the variety or breed does not meet the requirements set forth in paragraphs 1 and 2 of this article, at the request of the expert organization the applicant must, within two months to propose a new name.

If within that period, the applicant does not propose a new name corresponding to the specified requirements, or does not contest the failure to approve the name of the selection achievement in the Appeals Board, competent authority shall refuse to register the selection achievement.

4. Any person using the selection achievement shall be obliged to indicate the name of the variety or breed under which they are registered in the State register of breeding achievements, even after the expiry of the patent.

Article 7. Priority of selection achievement

1. The priority of the variety or breed is established by the filing date of the application in the expert organization.

If at the same time expert organization received two or more applications for a patent for the same selection achievement, a priority set by the earlier date of sending the application. If these applications have the same date, the patent shall be granted for the application having an earlier registration number assigned to the expert organization, if an agreement between the applicant does not provide otherwise.

2. Priority may be determined by the filing date of the first application in a member country of the International Convention on the Protection of Selection Achievements (convention priority). The applicant has a right of convention priority of the first application within 12 months from the date of its filing.

An applicant wishing to exercise the right of convention priority should be in the order directed to the expert organization, specify the priority date of the first application and, within three months from the date of filing the subsequent application to provide a copy of the first application certified by the authority with which that application was filed.

Under these conditions, the applicant may not submit additional documentation and material required for testing within three years from the date of filing of the first application.

Chapter 3. Examination of an application for a patent for a selection

attainment

Article 8. Preliminary examination

1. At the end of two months from the date of filing the expert organization shall carry out a preliminary examination. In the course of the preliminary examination established the priority date of the application, checks for the necessary documents and the implementation of the requirements set for them. Preliminary examination of patent applications is carried out in two months.

If necessary, the applicant may make corrections to the application within two months from the date of its filing.

2. Additional material submitted the application for variety or breed and contain features that were not listed in the primary materials of the application and changing the substance of the variety or breed, are not taken into account when considering the application.

3. Upon receipt of positive preliminary examination, the competent authority a decision on the further consideration of the application. Copies of the application and the form of the selection achievement directed the State Commission.

4. If the preliminary examination established that the application does not meet the requirements, the decision to refuse its further consideration and the applicant shall be notified within one month.

5. The applicant may apply to the competent authority objection to a decision to refuse further consideration of the application within two months from the date of receipt of the decision. The objection shall be considered by the Board of Appeal within two months from the date of its receipt.

The decision of the Board of Appeal can be appealed in court by the applicant within six months from the date of receipt of the decision.

6. For information on applications, which as a result of the preliminary examination favorable decision, published in the Gazette after 18 months from the date of receipt of the application. Expert organization at the request of the applicant may publish the application materials before the deadline.

7. Author variety or breed has the right to refuse publication of his name in the application.

Article 9. Temporary legal protection of selection achievement

1. Temporary legal protection is given to the protection of the claimed selection achievement since the date of the publication of an application prior to the date of grant.

2. Upon receipt of a patent the patent holder is entitled to receive compensation from the person who committed without the permission of the applicant during the period of the provisional legal protection of the selection achievement actions specified in paragraph 1 of Article 14 of this Law.

3. During the period of the provisional legal protection of selection achievements allowed the applicant to sale or other transfer of seeds, breeding material only for scientific purposes and in cases where the sale or other transfer related to the assignment of the right to the selection achievement or the production of seeds, breeding material commissioned by the applicant to the to create their stock.

In case of violation of the applicant or with the consent of the other person specified requirements provisional legal protection shall be deemed unaccrued.

Article 10. Examination of a selection achievement application for patentability

1. Any interested person within six months from the date of publication of the notice concerning the application may be sent to the state commission claim for the claimed selection achievement.

On receipt of a valid claim the State Commission shall notify the applicant outlining the merits of the claim. In case of disagreement with the claim, the claimant shall have the right, within three months from the date of receipt of the notification sent to the state commission reasoned objection.

The authorized body on the basis of the conclusion of the state commission takes a decision and inform the person concerned.

If a variety or breed did not meet the criteria of novelty, a decision to refuse to grant a patent.

2. Test the variety or breed of distinctness, uniformity and stability performed by state commissions on accepted procedures in a timely manner.

State shall notify the Commission expert organization on specific dates of the tests for patentability within one month from the date of application materials expert organization.

The applicant shall submit to the examination required number of seeds or breeding material.

3. The State Commission shall have the right to use the results of tests carried out by other organizations of the Republic of Kazakhstan and other states that are parties to relevant treaties and data submitted by the applicant.

4. In accordance variety or breed requirements of patentability State Commission is the official description of the variety or breed under which the competent authority decides to grant a patent.

5. If the examination found that the variety or breed did not meet the requirements of patentability, the authorized body on the basis of the conclusion of the state commission takes a decision to refuse to grant a patent, the applicant is notified in writing within one month.

The applicant may apply to the competent authority objection to a decision to refuse to grant a patent within three months from the date of its receipt. The objection shall be considered by the Appeal Board within three months from the date of its receipt.

The decision of the Board of Appeal can be appealed in court by the applicant within six months from the date of receipt of the decision.

6. The applicant may familiarize yourself with all the competing examiner. Copies of the requested materials authorized body sends him within one month from the date of receipt of the request.

 

Chapter 4. Author and patent

Article 11. The author of a selection achievement

1. The author of the selection achievement shall be a physical person whose creative work is created, discovered or inferred.

2. If the selection achievement created a collective creative work of several persons, they are considered by its authors (co-authors). The procedure for using the rights belonging to the co-authors shall be determined by agreement between them.

3. Do not recognized the authors of the person to the author (or authors) technical, organizational assistance and contribute to the preparation and registration of variety or breed.

Article 12. Rights of the author of a selection achievement

1. The right of the author shall be an inalienable personal right and shall be protected in perpetuity.

2. The author of the selection achievement entered in the State register of breeding achievements, not the patent, the authorized body to issue an official certificate confirming his authorship.

3. The author has the right to give his own name his selection achievement.

4. The author has the right to receive remuneration for the use of the patent holder established, identified or inferred their selection achievement during the term of the patent. Amount and terms of payment of remuneration determined by agreement between the patent holder and the author.

The amount of remuneration to the author shall not be less than five percent of the amount of annual income received by the patent owner for the use of the selection achievement, including proceeds from the sale of the license.

The remuneration paid to the author within six months after the expiry of each year in which the selection achievement was used, if the agreement of the author with the patent holder provides otherwise.

If a variety or breed created, discovered or bred by several authors, remuneration shall be distributed in accordance with the agreement between them.

Article 13. The patentee selection achievement

The patent is issued:

1) the author (s);

2) his heir (heirs);

3) physical and (or) legal entities (with their consent) that are listed author (s) or its (their) legal successor in the application for a selection achievement or in an application filed with the competent authority before a decision to grant a patent for a selection achievement ;

4) the employer, if the selection achievement is created by an employee in the performance of official duties, unless the contract between the author and the employer does not provide otherwise.

If there are several persons in whose name the patent is sought, they shall be issued a patent.

Article 14. Rights and duties of the patentee

1. The patent owner has the exclusive right to use the selection achievement, if such use does not violate the rights of other patent owners. Resolution of the patent holder is required for the following actions with respect to the selection achievement:

1) production or reproduction (multiplication);

2) bringing to sowing conditions for seed multiplication;

3) offering for sale;

4) the sale or other forms of marketing;

5) the export from the territory of the Republic of Kazakhstan;

6) into the territory of the Republic of Kazakhstan;

7) storage for the above purposes.

2. The right of the patent owner shall also apply to the plant material, animal commodities that have been produced from the seeds of the breeding animals introduced into circulation without the permission of the patent holder.

3. The provisions of paragraph 1 of this Article shall apply in respect of seed varieties and breeding material breed breeding achievements are:

1) essentially inherit the characteristics of selection achievements, if the selection achievements do not inherit the features of another selection achievement;

2) are not clearly distinguishable from the selection achievement;

4) the reproduction requires the repeated use of the selection achievement.

Selection achievements essentially inheriting the features of another (source) selection achievement, an achievement of breeding is recognized that in the apparent difference from the original:

1) inherits the most essential features of the original selection achievement or a selection achievement which itself inherits the essential features of the original selection achievement, while retaining the essential characteristics that result from the genotype or combination of genotypes of the original selection achievement;

2) corresponds to the genotype or combination of genotypes of the initial selection achievement, except for deviations caused by the use of techniques such as individual selection from the initial variety or breed, selection of an induced mutant or somaclonal, bekkrossirovaniya and genetic engineering.

5. The patent owner shall:

1) enter into circulation variety or breed accepted for use in manufacture;

2) maintain a variety or breed during the term of the patent for the safety features referred to in the official description established by the State Commission for the protection of the variety or breed;

3) annually to pay for the maintenance of the patent.

Article 15. Responsibility for violation of the rights of the patent holder

1. A natural or legal person using the plant variety or breed of animal in violation of this Act shall be guilty of violating the rights of the patent holder.

2. A natural or legal person is considered to be infringing the patent holder if:

1) discloses without permission of the patent holder constituting a trade secret information about the type, the species to which the application is submitted;

2) sets manufactured and sold protected plant varieties, animal breeds tribal name, which is different from the registered;

3) sets manufactured and sold protected plant varieties, animal breeds pedigree name, confusingly similar to the name of the selection achievement;

4) assigns produced and (or) sold seeds and pedigree material the name of the selection achievement, which in fact are not such;

5) submit documents containing false information about the selection achievement.

3. A person who violates the rights of the patentee, the patent owner shall pay compensation for the use of the selection achievement, and reimburse other damages resulting from any violation of this Act, in accordance with the law.

4. The holder of exclusive or nonexclusive license may be required to the infringer of the patent by written permission of the patent holder or his attorney.

5. The claim for damages is determined from the date the loss and for the period of patent infringement.

Article 16. Inheritance rights

The right to apply for and obtain a patent for a selection achievement, the exclusive right to use the selection achievement, as well as to remuneration and income from its use transferred by inheritanceor succession.

Article 17. Acts Not Infringing the exclusive right of the patent owner

No infringement of the rights of the patent owner for the use of the selection achievement steps:

1) committed for personal and non-commercial purposes;

2) acts done for experimental purposes;

3) on the use of selection achievements as a starting material for breeding other varieties and breeds, except in cases provided for in paragraphs 1 and 2 of Article 14 of this Law.

 

Article 17-1. The right of prior

1. A person who, before the priority date of the selection achievement in good faith to use the Republic of Kazakhstan established regardless of the identity of the author of a selection achievement of a plant variety or breed of animal or made necessary preparations, it retains the right to free use without expanding the scope of such use (the right of prior use) .

The right of prior use may be transferred to another person together with the production, which involved the use of the identity of a plant variety or breed of animal or were made the necessary preparations.

2. A person, start using the selection achievement after the priority date, but before the date of the publication of information about the grant of a patent, shall at the request of the patent owner to stop further use. However, such a person is not required to compensate the patentee losses incurred as a result of such use.

 

Chapter 5. Using the selection achievement

Article 18. The license contract

1. Any person who is not the patent owner the right to use the selection achievement only with the permission of the patent holder on the basis of a license agreement.

2. The license agreement may provide for the provision of the licensee:

1) the right to use a selection achievement The licensor retains the possibility of its use and the right to issue licenses to other persons (simple, nonexclusive license);

2) the right to use a selection achievement The licensor retains the possibility of its use, but without the right to grant licenses to other persons (exclusive license);

3) the right to use the selection achievement without saving the licensor of its use and without the right to grant licenses to third parties (the full license).

If the license agreement does not specify the form of the license, it is assumed a simple, non-exclusive.

3. The contract for the licensee to another person (the sublicensee) a non-exclusive license to use the selection achievement (sublicensing agreement) can be made only in cases stipulated by the license agreement.

Responsibility to the licensor for the actions of sub-licensee shall, unless the licensing contract provides otherwise.

4. The license and sub-license agreements are concluded in writing and shall be registered in the authorized body. Failure to comply with the written form or the requirement of registration shall entail the invalidity of the contract.

Registration of license agreements based on the results of examination materials, conducted by expert organization.

By the order of registration of sub-contracts, the provisions of the registration of license agreements, unless otherwise provided by the legislation of the Republic of Kazakhstan.

To register a license agreement in expert organizations represent application form.

Attached to the application:

1) the originals of the contract in quadruplicate, equipped with a cover sheet. Each copy of the contract sewn, sealed with a paper seal, which is a record of the number of laced and numbered sheets, stamped seal of the signatures of both parties and any authorized persons of both parties.

Feed materials for registration should be carried out not later than six months from the date of signing the contract.

Instead of the originals of the contract may be submitted notarized copy of the agreement;

2) power of attorney if the application through a patent attorney or other representative;

3) a document confirming payment of the state fee. National applicants, in addition to the above-mentioned documents are the solution controls the licensor (sub-licensor) (general meeting of founders or shareholders) on the conclusion of the contract and of the authority to sign the contract in the case of the head of the organization submitting the application on behalf of a legal entity.

The application and other necessary documents are presented in the Kazakh and Russian languages.Foreign names and the names of legal entities must be indicated in the Kazakh and Russian transliteration. If the documents are in another language, the application shall be accompanied by notarized translation into Kazakh and Russian languages.

The application must relate to a single license agreement.

Individuals living outside the Republic of Kazakhstan and foreign legal entities to submit materials to the authorized body of the contract on its own behalf, exercise the rights relating to the registration of the contract by registered patent attorneys of the Republic of Kazakhstan.

Citizens of the Republic of Kazakhstan, temporarily residing abroad, exercise the rights relating to the registration of the contract, without a patent attorney if you specify an address for correspondence in the territory of the Republic of Kazakhstan.

5. Expert organization after the submission of the applicant list of documents for registration within fifteen working days of receipt of the application carries out a preliminary examination of the documents received in order to verify the presence of the necessary documents and compliance with the requirements established for them, in the case of lack of materials attached to the application of the contract document proof of payment of the examination, the applicant will be invoiced for payment. In this case, the specified time is calculated from the date of receipt of payment to the expert organization.

On acceptance for consideration of the license agreement within twenty days held substantive examination, during which the study is conducted of the license agreement in accordance with the current legislation of the Republic of Kazakhstan.

6. Reasons impeding the registration of the license agreement that can be eliminated:

1) is not made payment for the maintenance of the patent;

2) the presence in the contract provisions contrary to the civil legislation of the Republic of Kazakhstan and international treaties ratified by the Republic of Kazakhstan.

7. In case of violation of the requirements for registration of documents or the grounds mentioned inparagraph 6 of this Article shall impede the registration of the contract, but that can be corrected, expert organization sends a request to the applicant with a proposal within three months from the date of its dispatch to submit the corrected or missing documents or make the necessary changes and additions. In this case, referred to in paragraph 5 of this article date of the examination shall be calculated from the date of submission of the missing or corrected documents.

8. The expert organization, make a determination to refuse the registration of the license agreement in the presence of the following grounds:

1) termination of a patent for a selection achievement for which the contract is concluded;

2) failure to provide a timely response to the request of the expert organization within three months;

3) the lack of response to the request of the expert organization of all necessary information and documents;

4) lack of authority of the licensee’s license agreement on the conclusion of sublicense agreement and the lack of a license agreement, registered with the authorized body.

Within two working days after the conclusion of expert organization sends this opinion to the authorized body with the reasons for refusal.

9. In case of positive result of the examination the expert organization within five working days, send to the competent authority concluded there were no grounds preventing the registration of the license agreement.

The decision on registration or refusal of registration of the license agreement is accepted by the authorized body within five working days from receipt of the conclusion of the expert organization.

10. Following a decision on the registration of a license agreement authorized body:

1) prepares an annex to the document on the protection of industrial property, in respect of which the contract is concluded;

2) mark on the front page of the contract registration stamp showing the date of registration and its registration number;

3) submit information about the contract in the register of registered contracts;

4) send two copies of the application and the registered contract to the protected document to the correspondence address given in the application;

5) directs the master copy of the contract with the conclusion in the expert organization for publishing information about the registration of the contract.

The third and fourth copies of the contract are stored in the authorized body and expert organization, respectively, and are controlled copy.

Expert organization for registered contracts publish in the Gazette information on registered contracts, in particular the number and date of registration of the contract, the name and full details of the parties of the contract, the subject of the contract, the term of the contract, the contract territory.

Statement on changes or additions to the registered license agreement, sub-license agreement applied to the authorized body, and the provisions on the registration of license contracts.

Any person may obtain an extract from the register of registered license contracts, sublicensing contracts relating to data on registered contracts open to publication.

Introduction of third parties with the text of the treaty, as well as obtaining extracts from it are allowed only with the written consent of the parties to the contract.

In the case of issuance authority makes the decision to refuse registration of a license agreement on the basis of the opinion of the expert organization of documents considered agreement with the decision to refuse the registration back to the address indicated in the statement.

11. The license contract and sublicense contract shall enter into force on the date of their registration in the authorized body.

12. In situations of national emergency government of the Republic of Kazakhstan has the right to authorize the use of selection achievement without the consent of the patent holder, but his immediate notice and payment of the reasonable compensation. Disputes about the amount of compensation shall be settled by the court.

 

Article 19. Open license

The patent owner may apply to the competent authority an application for granting the right to obtain a license to use the selection achievement (open license).

A person wishing to obtain the said license, shall conclude an agreement with the patent holder on payments, with its obligatory registration in the authorized body. Disputes on terms of the contract considered by the court.

Statement by the patentee to grant the right to an open license remains valid for three years from the date of publication in the Gazette of information on the open license. Within this period payment for maintenance of the patent shall be reduced by fifty percent from the year following the year of the publication of information about the open license.

Article 20. Compulsory License

1. When not in use the selection achievement patent owner and his refusal to enter into a license agreement on reasonable commercial terms, any person may apply to the court to grant him a compulsory license if a selection achievement has not been used continuously after the publication of data on granting a patent for a selection achievement in Within three years from the date of publication of data on granting a patent. If the patent owner fails to prove that non-use of the selection achievement is due to valid reasons, the court shall grant the above license to the definition of terms, amount and procedure of payment. The amount of payment must not be lower than the market price of the license, defined in accordance with established practice.

Any compulsory license shall be granted primarily for the supply of the domestic market of the Republic of Kazakhstan.

The right to use the selection achievement may be transferred to a person who has been granted a compulsory license to another person only together with the enterprise in which it used the selection achievement.

A compulsory license shall be revoked by the court in the event of termination of the circumstances that may have contributed to its issuance.

2. The patent owner that can not use the selection achievement, without violating the rights of another holder of a patent for a selection achievement, refused to conclude a license agreement on reasonable commercial terms, it has the right to apply to the court to grant him a compulsory license to use the selection achievement on the territory of the Republic of Kazakhstan.

In providing the above license the court shall determine the limits of the use of the selection achievement, the patent for which belongs to another person, the timing, size and order of payment.The amount of payment must not be lower than the market price of the license, defined in accordance with established practice.

The right to use the selection achievement, obtained pursuant to this paragraph may be transferred only with the assignment of a patent for the selection achievement, for which this right is granted.

 

 

Article 20-1. The assignment of a patent or the right to obtain a patent for a selection achievement

1. An assignment of a patent or the right to obtain a patent for a selection achievement issued only contract of assignment.

The assignment agreement may be concluded at any time during the term of the exclusive right in a selection achievement for which the contract is concluded.

The assignment agreement shall be in writing and shall be registered in the authorized body.

Register assignment contract based on the results of its examination of the materials carried out by an expert organization.

2. For registration of the contract of assignment to the expert organizations represent application form.

Attached to the application:

1) the originals of the contract of assignment in four copies, which are subject to uniform industrial property, equipped with a cover sheet. Each copy of the contract sewn, sealed with a paper seal, which is a record of the number of laced and numbered sheets, stamped signature and seal of the authorized persons of both parties or applicant.

Instead of original assignment agreement may be submitted notarized copy of the agreement or a notarized extract of the contract reflects the transfer of the right;

2) power of attorney if the application through a patent attorney or other representative;

3) a document confirming payment of the state fee.

National applicants, in addition to the above-mentioned documents provide the solution controls the owner of the security document or exclusive rights, the general meeting of shareholders or founders on the issue of signing the contract and the authority to sign a contract director.

The application and other necessary documents are presented in the Kazakh and Russian languages.Foreign names and the names of legal entities must be indicated in the Kazakh and Russian transliteration. If the documents are in another language, the application shall be accompanied by notarized translation into Kazakh and Russian languages.

The application must relate to one contract of assignment.

3. Upon registration of a patent assignment agreement and the right to obtain a patent for selection achievements, the provisions provided for by paragraphs 5-10 of Article 18 of this Law.

Assignment Agreement shall enter into force on the date of its registration in the authorized body.

 

 

Chapter 6. Termination of the Patent

Article 21. Recognition of a patent invalid

1. The patent for the entire period of validity may be challenged and invalidated by the objection against his extradition, if it is established that:

1) it was issued on the basis of unconfirmed data on the uniformity and stability of the selection achievement by the applicant;

2) the date of issuance of the patent a selection achievement does not meet the criteria of novelty and distinctness;

3) the person referred to in the patent as the patent holder had no legal grounds for obtaining a patent.

2. The notice of opposition filed on the grounds specified in subparagraphs 1) and 2) of paragraph 1 of this Article shall be submitted to the authorized body. The objection shall be considered by the Appeal Board within six months from the date of its receipt, if you do not need additional tests. The person submitting the objection, the patent holder is obliged to introduce the objection.

The decision of the Board of Appeal can be appealed in court the person submitting the objection or patent owner within six months from the date of receipt of the decision. Regulations on the Appeals Board shall be approved by the competent authority.

Article 22. Cancellation and early termination of the patent

1. A patent for a selection achievement shall be canceled by the authorized body in the following cases:

1) annulment in accordance with Article 21 of this Law;

2) non-compliance more varieties, breeds performance uniformity and stability;

3) failure to provide the patent holder at the request of the expert body within 12 months of the necessary information, seeds, breeding material and documents to verify the safety of the variety or breed, or the lack of conditions for inspection grade rocks in place for this purpose;

4) cancellation of the name of the selection achievement after grant of the patent, if the patent owner does not propose another, more suitable name.

2. The patent shall be terminated early:

1) based on an application filed by the patentee to the authorized body from the date of publication in the Gazette of information on the early termination of a patent;

2) for non-payment in due time maintaining the patent in force from the date of expiry of the term of payment.

 

 

Chapter 6-1. The Board of Appeal and patent attorneys

 

Article 22-1. Appeal Board

1. The Board of Appeal is a division of the authorized body of pre-trial disputes over the objections submitted in accordance with paragraph 5 of Article 8, paragraph 5 of Article 10, paragraph 2 of Article 21 of this Law.

2. The Board of Appeal can be submitted the following objections:

1) the decisions of the authorized body to refuse further consideration of the application for a patent for the selection achievement;

2) to refuse to grant a patent for a selection achievement;

3) against the grant of a patent for a selection achievement.

The objection referred to in subparagraphs 1) and 2) of this section, served by the applicant or its successor, either directly or through a representative.

The objection referred to in subparagraph 3) of this section, served by any interested person, either directly or through a representative.

Objection is served to the authorized body in the Kazakh and Russian languages ​​directly or sent by mail.Attached to the objection materials submitted in the Kazakh and Russian languages. If the supplied materials are in another language, the objection shall be accompanied by notarized translation into Kazakh and Russian languages.

If an objection is filed by fax or e-mail, it must be confirmed by an original hard copy no later than one month from the date of receipt of such objections.

The objection is filed within the time limits established by this Law.

He missed the deadline for objections by the applicant specified in subparagraphs 1) and 2) of this paragraph may be reduced if there is a valid reason and submission of the payment restore the missed deadline. An application for relief may be filed by the applicant not later than twelve months from the date of expiry of the missed deadline. Such an application is submitted simultaneously with the appeal with the Appeal Board.

3. In the event of an objection by a patent attorney or other representative of the power of attorney is served in the Kazakh and Russian languages, if the authorization is supplied to other (foreign) language, the power of attorney must be translated into Kazakh and Russian languages, the translation of the power of attorney attested by a notary. The materials objections accompanied by the original or a notarized power of attorney, he submitted together with a copy of the Secretary of the Board of Appeal to confirm notarization.

4. Apply the objection should be considered at a session of the Board of Appeal within the time limit prescribed by this Law. Time limit may be extended at the request of the person who filed an objection and the patent holder, but for no more than six months from the date of expiry of the deadline for the consideration of objections.

5. A person who has filed an objection, the patent holder has the right to challenge in court the decision of the Board of Appeal within six months from the date of issuance of such decision.

 

Article 22-2. Grounds for refusal to consider objections to the Appeals Board

In making an objection to the consideration shall be refused if:

1) The objection is not subject to review by the Appeals Board;

2) the objection is not signed or signed by a person who does not have the authority to sign it;

3) The objection filed out of time and the possibility of extending the deadline and restore lost;

4) the applicant within a period not address the deficiencies relating to the requirements for the design, content and procedure for filing objections.

In the presence of these circumstances the person who submitted the objection shall be notified that the resulting objection can not be accepted for review and considered not.

The person who filed an objection, or his representative may file an objection to withdraw the announcement of the decision panel of the appeal board.

 

Article 22-3. Consideration of objections to the board meeting of the Board of Appeal

1. Consideration of the objections made at the board meeting of the Board of Appeal composed of at least five of its members. Before the start of the dispute shall be kept confidential personal composition of the board Appeal Board.

To report to the board meeting to the Board of Appeal may be attended by representatives of scientific institutions and specialists of the corresponding profile.

2. The Board of Appeal shall be entitled to postpone the council meeting is held in the following cases:

1) the impossibility of examining the objections at the meeting due to absence of any of the persons entitled to participate in the opposition;

2) the need for the parties to submit the missing, additional documents (evidence) for a decision on the merits;

3) at the request of the parties.

3. Persons participating in the opposition, have the right to:

1) get acquainted with the materials of the case, make extracts from them, order and receive copies of them;

2) submit evidence;

3) participate in the examination of evidence;

4) to ask questions to the participants of the appeals process;

5) to submit petitions;

6) to give oral and written explanations of the members of the board of the Board of Appeal;

7) to submit their arguments and ideas on all issues arising in the course of consideration of objections issues;

8) oppose motions, arguments and considerations of other persons involved in the case.

4. In resolving the dispute on the merits Board Appeals Board shall decide.

The decision adopted by a simple majority vote of the board of the Board of Appeal. At equality of votes, the chairman of the board meeting of the Appeals Board shall be decisive.

As a result of the objections are made the following decisions:

1) to satisfy the objections;

2) to partially satisfy the objections;

3) to postpone consideration of the objection;

4) to dismiss the objection.

5. Within ten working days from the date of the judgment panel of the appeal board shall prepare and send the parties to the decision of the Board of Appeal. The decision of the Board of Appeal set out in writing and shall consist of an introduction, descriptive motivation and conclusion.

The decision of the appeal board shall be signed by all members of the board of the Board of Appeal.

 

Article 22-4. Patent attorneys

1. Patent attorneys have the right to be a capable citizen of the Republic of Kazakhstan permanently residing on its territory, with higher education and work experience in the field of intellectual property at least four years, vetted and registered by the authorized body in the field of intellectual property.

For the certification of candidates for patent attorneys authorized body is formed Attestation Commission from the staff of the authorized body and expert organization. The minimum number of members of the certification commission of not less than five employees.

Certification candidates for patent attorneys held by the authorized body at least once a year upon receipt of applications from candidates for patent attorneys.

According to the results of certification Certification Commission decides on the certification or refusal to certify a candidate. The form of decision attestation commission shall be approved by the competent authority.

Solution Certification Commission may be appealed in court within three months from the date of issuance of such decision.

Successful candidates in the certification exam at the patent attorney, issued a certificate of a patent attorney, the form which sets the authorized body.

For the attestation of patent attorney candidates and issue certificates state duty, to decide the tax legislation of the Republic of Kazakhstan.

2. It is not permitted for certification of patent attorney candidates face:

1) which in accordance with the laws of the Republic of Kazakhstan prohibited from engaging in business activities;

2) who are employees of the authorized body and its subordinate organizations, as well as their close relatives, husband (wife);

3) having an unserved or not taken as prescribed by law a conviction for committing a crime;

4) excluded from the register of patent attorneys in accordance with this Law.

3. The activities of a patent attorney is suspended protocol decision of certifying commission:

1) based on the application of the patent attorney submitted to the certification commission;

2) the period of reference to persons who, in accordance with the laws of the Republic of Kazakhstan prohibited from engaging in business activities, including the staff of the authorized body and its subordinate organizations;

3) in order to clarify the circumstances provided for in subparagraphs 2) and 6) of paragraph 1 and paragraph 5 of Article 22-6 of this Law.

In the case referred to in subparagraph 3) of this paragraph, the activity of patent agent is suspended until the decision by the Certification Commission within three months.

Activities patent attorney resumes protocol decision of certifying commission in the case that the grounds that gave the suspension of its activities.

4. The information that a patent attorney received from the principal in connection with the performance of his assignments, is acknowledged as confidential in compliance with requirements of legislative acts of the Republic of Kazakhstan to the protection of official and commercial secrets.

 

Article 22-5. Rights and duties of patent attorney

1. A patent attorney is entitled to exercise in the interest of the applicant (natural or legal person), the employer has concluded an employment contract with him, or a person who has concluded with him or his employer civil contract, the following activities:

1) Advising on the protection of intellectual property rights, acquisition or transfer of intellectual property rights;

2) the implementation of work on the design and preparation of applications for selection achievements in the name and on behalf of the client, the principal, the employer;

3) interaction with the authorized body and (or) expert organization on the protection of selection achievements, including the maintenance of correspondence, preparation and transmittal of objections to examination decisions, participation in meetings of the Expert Council under the expert organization;

4) assist in the preparation, review and subsequent shipment to the examination of license (sublicense) agreements and (or) contracts of assignment.

2. The powers of attorney shall be certified by a patent attorney.

3. In the case of submission of a copy of the power of attorney the patent attorney to conduct business related to the filing of applications for selection achievements, and (or) receipt of documents of title, and under protest to the Appeal Board within three months from the date of the said application or a patent attorney is obliged to objections submit the original power of attorney, respectively, in the expert organization and authorized body. After confirmation of the authenticity of the original power of attorney shall be returned.

If a power of attorney drawn up in a foreign language, it must necessarily be represented by its translation into Kazakh and Russian languages, certified by a notary.

4. The patent attorney shall not accept a commission in cases where the case represented or advised the persons whose interests are contrary to the interests of the person requesting the conduct of the case or decides otherwise participate in the consideration and, if involved in the hearing officer person who is a close relative of a patent attorney, husband (wife) and his (her) relatives.

 

Article 22-6. Revocation and cancellation of the certificate of a patent attorney

1. A patent attorney is excluded from the register of patent attorneys of the decision of certifying commission:

1) on the basis of personal application submitted to the certification commission;

2) upon termination of citizenship of the Republic of Kazakhstan or at the exit for permanent residence outside of the Republic of Kazakhstan;

3) in the case of a break in the professional activity of the patent attorney for more than five years;

4) upon entry into force of a judgment of conviction, which patent attorney convicted of a crime;

5) upon the death of the patent attorney or the recognition of his missing or declared dead;

6) in the event that a patent attorney incapable or partially capable.

2. In the case of a patent attorney exclusion from the register on the grounds specified in paragraphs 4), 5) and 6) of paragraph 1 of this Article, the certificate annulled the decision of the Certification Commission. Information about the cancellation of the certificate shall be entered in the register of patent attorneys.

3. In the cases specified in subparagraphs 1), 2) and 3) of paragraph 1 of this Article, the certificate of a patent attorney is revoked the decision of the Certification Commission on the application of the patent agent or third parties with this base.

Patent Attorney, is excluded from the register on the grounds of subparagraphs 1) and 2) of paragraph 1 of this article may be re-registered as a patent attorney without re-qualification exam, provided the termination reason, be exclusion from the register and the application to the Certifying commission Within three years from the date of publication of the decision on exclusion from the registry.Attestation committee on the documents submitted establishes the fact of termination of the grounds referred to in subparagraphs 1) and 2) of paragraph 1 of this article.

4. A patent attorney who is excluded from the register of patent attorneys, lose the right to operate a patent attorney from the date of making the information about it, and a certificate of registration as a patent attorney is revoked or canceled.

5. In the case of bad faith performance of a patent attorney his duties established by this Law, the authorized body of the Appeals Commission, whose composition consists of an odd number of employees of the authority.

The Appeals Board is a collegial body and deals with complaints of physical and legal entities representing the actions of their rights and legitimate interests of the patent attorneys, committed in violation of applicable law.

Persons who filed complaints against the patent attorney and patent attorneys, in respect of which such complaints are filed, the right to participate at the meeting of the Appeal Commission.

Upon review of the complaint Appeal Commission recommends that the competent authority to send a lawsuit to annul the certificate of a patent attorney, or take one of the following decisions:

1) to postpone consideration of complaints of lack of evidence, or to ascertain the circumstances that contribute to the adoption of objective decisions;

2) to dismiss the complaint.

The decision of the appeal commission taken by a simple majority vote and registered in the minutes.The decision of the Appeal Commission can be appealed in court.

Regulations on the Appeals Commission shall be approved by the competent authority.

 

 

Chapter 7. FINAL PROVISIONS

Article 23. Resolution of disputes relating to the application of this Act

Disputes related to violation of the law on patents issued on the varieties and breeds are considered in court, in particular:

1) authorship to the variety or breed;

2) the establishment of the patentee;

3) infringement of the exclusive right to use and other property rights of the patent holder;

4) the conclusion and execution of license agreements for the use of the selection achievement;

5) the payment of compensation under this Act;

6) payment of remuneration to the author in accordance with the contract;

7) on the grant of a patent;

8) issuance of a compulsory license;

9) other disputes related to the protection of the rights arising from the patent.

Article 24. The use of selection achievements in production

1. The State Register of Breeding Achievements Approved for use include the authorized body in the field of development of agriculture breeding achievements:

1) by species – according to the results of state testing for economic utility, conducted by the State Commission for Testing and validation of rocks;

2) Variety – the results of state testing for economic utility, conducted by the State Commission for Variety Testing of crops, or according to the applicant.

2. Ongoing seeds and breeding material must be accompanied by the relevant documents certifying their varietal, breed, origin and quality.

The document issued on seed varieties and breeding material breed accepted for use in the respective region.

Article 25. Payment of legally significant actions

For the commission of the competent authority for the issuance of a patent action, registering contracts state duty in accordance with the tax laws of the Republic of Kazakhstan.

The State Commission for Variety Testing crops charges a fee for the test crop varieties for patentability in accordance with the legislation of the Republic of Kazakhstan.

 

Article 26. Publications

1. The Bulletin publishes information relating to the registration of the selection achievement:

1) of patent applications that have passed preliminary examination with a positive result, indicating the date of priority of the selection achievement, name (s) of the applicant, the name of the selection achievement, surname and initials of the author, unless the latter refused to be mentioned as such;

2) the decisions taken on the application for grant of a patent;

3) changes in the name of the selection achievements;

4) to declare the patent invalid, and their cancellation;

5) other information relating to the protection of breeding achievements.

2. Following the publication of information about the application, any person may have access to its materials.

Article 27. Patenting of selection achievements in foreign countries

The applicant is entitled to submit the first application for protection of a selection achievement with the competent authority of another State with which the Republic of Kazakhstan related bilateral or multilateral international treaties on the protection of breeding achievements.

The applicant may apply to the competent authorities of other countries, without waiting for the issuance of his title of protection by the competent authority of the State in which the first application was filed.

The costs associated with the protection of rights in selection achievements outside the Republic of Kazakhstan, the applicant bears.

Article 28. Rights of foreigners, stateless persons and foreign legal entities

1. Foreigners and foreign legal persons shall enjoy the rights provided by this Law and other legislative and normative legal acts of the Republic of Kazakhstan in the field of selection achievements, along with the natural and legal persons of the Republic of Kazakhstan on the basis of international treaties of the Republic of Kazakhstan and on the principles of reciprocity.

2. Stateless persons residing in the Republic of Kazakhstan enjoy the rights provided by this Act and other acts relating to legal protection of selection achievements on a par with physical and legal persons of the Republic of Kazakhstan, unless otherwise provided in this Act and other regulations.

Article 29. International Treaties

If an international treaty ratified by the Republic of Kazakhstan stipulates other rules than those contained in this Act, the rules of the international treaty.

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