General information on procedures concerning plant variety protection

General information on procedures concerning plant variety protection

started after 1 January 2003 on the basis of Law No. XXXIII of 1995 on the Protection of Inventions by Patents as amended by Law No. XXXIX of 2002

1. Examination on filing the application for plant variety protection

Following the filing of an application for plant variety protection, the Hungarian Patent Office (HPO) examines whether the application satisfies the requirements for according a date of filing (indication that plant variety protection is sought, information identifying the applicant, provisional description of the variety, provisional variety denomination, common name and Latin name of the species), the filing fee has been paid, as well as in case of foreign applications the provisional description of the variety has been filed in the Hungarian language.

1.1. Date of filing

The HPO notifies the applicant of the accorded date of filing. If a date of filing cannot be accorded, the HPO invites the applicant to rectify the irregularities within thirty days. If the applicant complies with the invitation within the specified time limit, the date of receipt of the rectification shall be accorded as the date of filing. In the event of failure to rectify the irregularities, the application shall be considered withdrawn.

1.2. Filing fee

Information on the filing fee is contained in point 1 of the Schedule of Fees annexed to this Guide. The fee shall be payable to the account of the HPO, with the indication of the reference number and the allocation. Payments without a reference number shall not be valid. If the filing fee has not been paid within two months after the filing date, the application shall be considered withdrawn. The HPO may accord an exemption from the filing fee if the natural person right-holder cannot pay it due to his financial standing with regard to his wage, income, etc.

1.3 Documents in Hungarian language

Where the provisional description of the variety has been prepared in a foreign language or the name of the species has not been filed in Hungarian, the Hungarian translation shall be filed within four months after the date of filing. in the event of failure to file the said translation, the application shall be considered withdrawn.

2. Communication of certain data

If, either on filing or as result of a rectification, an application for plant variety protection complies with the requirements prescribed for according a date of filing, the HPO publishes in its official journal (Gazette of Patents and Trademarks) the following data of the application: the name and address of the applicant and the representative (if any), the reference number of the application, the variety denomination, the common name and the Latin name of the species, the filing date and the date of priority where the latter is different, the country or international organization and filing number of the previous application.

3. Examination as to formal requirements

If an application for plant variety protection satisfies the requirements prescribed for according a date of filing, the filing fee has been paid, and the provisional description and the name of the variety have been filed in Hungarian language, the HPO examines the application, whether it satisfies the prescribed formal requirements. In the case of irregularities revealed during examination as to formal requirements, the HPO invites the applicant by a decision to rectify the irregularities and continues the procedure on the basis of the rectification. Where the applicant does not reply to the invitation to rectify the irregularities within the fixed time limit, the application for plant variety protection shall be considered withdrawn.

4. Publication

After the expiry of 18 months from the date of priority the HPO publishes the application for plant variety protection in the Gazette of Patents and Trademarks. In addition to the data published on communication of certain data, the name and address of the breeder and the photo of the variety are also published. For the term of plant variety protection annual fees shall be paid (see point 6 of the Schedule of Fees). Publication gives rise to the obligation to pay this fee. The applicant shall be notified of the date of publication and the amount of the annual fee before publication. The documents of the published application that may be inspected are available to the public, the HPO provides any person with copies thereof on payment of a fee. Provisional protection having retroactive effect to the date of application begins with the publication of the application. It shall become definitive if plant variety protection is granted to the applicant.

5. Substantive examination

5.1. Examination of the variety denomination

After a date of filing has been accorded for an application for plant variety protection, the filing fee has been paid and the provisional description and the name of the variety have been filed in Hungarian, the HPO examines whether the variety has been given a variety denomination suitable for identification. The HPO draws up a search report on the variety’s suitability for identification. If the variety denomination does not meet the prescribed requirements, the HPO invites the applicant to file a new variety denomination. Where the applicant does not reply to the invitation within the fixed time limit, he shall be considered to have withdrawn the application or to have relinquished provisional protection.

5.2. Examination of distinctness, uniformity and stability (DUS examination)

The HPO shall assess distinctness, uniformity and stability of the plant variety on the basis of the results of experimental testing (DUS examination) carried out by the examination authority. The applicant may file the results of experimental testing with the HPO within four years from the date of priority or within three months from the notification of the results of experimental testing, whichever expires later. The results of experimental testing carried out by a competent foreign authority may be taken into consideration with the consent of such authority. The costs of experimental testing shall be borne by the applicant.

5.3 Examination of novelty of the variety

The HPO shall assess novelty of the plant variety on the basis of the declaration of the applicant. The declaration has to contain that the propagating or harvested material of the variety has not been sold or otherwise disposed of to others by, or anyone else with the consent of, the breeder or his successor in title, for purposes of exploitation of the variety

a) in the country earlier than one year before the date of priority,

b) abroad earlier than four years or, in the case of trees or of vines, earlier than six years before the date of priority.

6. Division

An application for plant variety protection may seek protection for one plant variety only. If the applicant has claimed protection for more than one plant variety in one application, the HPO shall invite him to divide the application. The request for division is subject to the payment of a fee (see point 3 of the Schedule of Fees).

7. Time limits, extension of time limits, restitutio in integrum

The time limits prescribed by the law (see points 1.1, 1.2, 1.3 and 5.2 of this Guide) shall not be extended. Failure to comply with them shall involve legal consequences without notice. Where the law does not prescribe any time limit, an extension of the time limit set by the invitation of the HPO can be requested before the expiration thereof. This request is subject to the payment of a fee (see point 2 of the Schedule of Fees). In matters of plant variety protection - unless excluded by the law - a request for restitutio in integrum may be submitted within 15 days of the unobserved time limit or of the last day of the unobserved period. Where the failure to comply became known to the party subsequently or the cause thereof was removed subsequently, the time limit shall be reckoned from the date on which the failure to comply became known or the cause thereof was removed. A request for restitutio in integrum is only admissible within six months of the time limit not complied with or the last day of the period not complied with.

8. Grant of plant variety protection

If the application for plant variety protection and the variety to which it relates meet all the requirements of the examination, the HPO shall grant plant variety protection for the subject matter of the application. After the grant of plant variety protection, the HPO issues a certificate to which the definitive description of the variety shall be attached.

9. Term of plant variety protection

Definitive plant variety protection shall have a term of 25 years or, in the case of vines and trees, a term of 30 years, from the date of the grant of the protection.

10. Maintenance of plant variety protection (annual fee)

  1. The amount of annual fees payable during the term of plant variety protection and the mode of their payment are contained in point 6 of the Schedule of Fees. The fees shall be payable to the account of the HPO, with the indication of the reference number and the registration number. Payments without a reference number or a registration number shall not be valid.
  2. The annual fee for the first year is due on the filing date and the fees for the subsequent years shall be payable in advance on the anniversaries of the filing date. The annual fees which become due before publication shall be payable within a period of grace of six months from the date of publication and the other annual fees shall be payable within a period of grace of six months from the due date. The annual fees shall be payable without a surcharge in the first three months of the six-month grace period, in the fourth, fifth and sixth months of that period with a surcharge of 50 per cent. The right-holder shall provide for the payment regularly and in due time even without special notice of the HPO.
  3. If the plant variety application is divided, the annual fees shall be payable for each application resulting from the division beginning from the first year.
  4. The payment of the annual fees may be effected within three months preceding the starting date of the grace period.
  5. The HPO may grant a deferment of the payment of the annual fees due for the first to the fifth years if the natural person right-holder cannot pay them due to his financial standing with regard to wage, income, etc. The fees subject to the deferment shall be paid together with the annual fees for the sixth year.
  6. Annual fees paid more than three months before the starting date of the period of grace, as well as the fees paid in a smaller amount than prescribed in the case of the lapse of plant variety protection shall be refunded by the HPO on request.
  7. Failure to duly pay the annual fees shall give rise to the lapse of protection.

11. Restoration of plant variety protection

Restoration of plant variety protection lapsed by reason of failure to pay annual fees may be requested within three months following the expiry of the six-month period of grace. Within that period, the double of the annual fee due for the year in question shall be paid (see point 7 of the Schedule of Fees). In the case of the refusal of the request for restoration, the fee for the request shall be refunded by the HPO on request.

12. Lapse of provisional plant variety protection

Provisional plant variety protection lapses with retroactive effect to the date of filing

a) if the application for plant variety protection is definitely rejected;

b) if the annual fees have not been paid by the end of the period of grace;

c) if the applicant has relinquished provisional protection.

13. Lapse of definitive plant variety protection

Definitive plant variety protection lapses:

  1. when the period of protection expires, on the day following the date of expiration;
  2. if the annual fees have not been paid by the end of the period of grace, on the day following the due date;
  3. if the right-holder relinquishes the protection, on the day following receipt of the relinquishment or at an earlier date specified by the person relinquishing protection;
  4. if plant variety protection is revoked, with retroactive effect to the filing date of the application;
  5. if plant variety protection is cancelled, with retroactive effect to the date of instituting proceedings for cancellation or to the date at which the conditions for cancellation have already existed, whichever is earlier;
  6. in the case of the cancellation of the variety denomination the registration of another variety denomination suitable for identification has not been requested or the maintenance of the variety has not been verified, with retroactive effect to the date of instituting proceedings for cancellation.