New Plant Varieties
Legal Basis
– Part IV of the Civil Code of the Russian Federation, effective since January 1, 2008, amended as of June 13, 2023.
Membership in International Conventions
– International Convention for the Protection of New Varieties of Plants (UPOV), 1991 Act, since April 24, 1998.
Filing
Applicant: the breeder or his assignee (any physical person or legal entity). The name of the breeder must be mentioned when he is not the applicant.
Foreigners: must act through a Russian patent attorney; they enjoy the same rights as nationals, by virtue of applicable International Treaties.
Conditions for protection: a patent is granted for a variety, which is new, distinguishable, homogeneous and stable. It must be described by a registered variety name.
Novelty: a plant is new if seeds or breeder material have not been sold or disposed of by or with the consent of the applicant for more than one year prior to the application, or more than four years (six for some varieties) anywhere else in the world, prior to the application in the Russian Federation.
Distinctiveness: the variety must be obviously distinguishable from any other existing commonly known variety existing by the application filing date. A variety is commonly known if it has already been entered in an official Register or has been specifically described in prior art publications. Filing a patent application makes breeding achievement commonly known from the application filing date, provided that a patent was granted for said breeding achievement.
Uniformity: plants of the same variety and animals of the same breed should be similar enough by their features, taking account of some deviations that may occur as a result of peculiarities of breeding.
Stability: a variety is deemed to be stable if the basic characteristics thereof remain the same after repeated breeding or in case of a special cycle of breeding at the end of each breeding cycle.
Filing requirements for an application (to be sent to resident agent):
1. Power of attorney, unlegalized;
2. Application form stating name and address of applicant and original breeder, the facts of the assignation if the applicant is not the breeder, stating the name of the variety, and if claiming a priority, filing date and serial number of the prior application (certified copy of provisional application should be submitted within six months from the filing date);
3. Complete description of the variety with mention of the manner in which the variety has been obtained and its specific characteristics;
4. Solemn declaration by the applicant that to his knowledge, marketing has not taken place and to the contrary, about the date, the country and the name of the variety when it was up for sale or sold;
5. Breeding achievement form;
6. Assignment document if the assignation took place.
Examination Procedure
Preliminary examination: is carried out during the month from the filing date and comprises establishing the priority date, checking all necessary documents for availability and conformity with established requirements.
Publication: after having successfully passed the formal examination, the information concerning the application is published and becomes accessible to the public to inform on decisions made on the patent application, amendments to names of the breeding achievements, invalidation of breeding achievement patents.
Amendment of application: possible (during the preliminary examination the applicant is allowed to amend, modify, and correct the application documents).
Provisional protection: provided for; it extends over the period from the filing date to the date of granting a patent.
Objection as to novelty: any third party may, within six months after publication, lodge an objection with the State Commission for Testing and Protection of Varieties; the applicant is notified by the State Commission and may submit a reasonable opposition within three months from the date of receiving the Notification. Then the State Commission may pronounce a Decision of Refusal.
Examination for novelty: within a six-month period after the date of publishing the information on the patent application, any interested party is allowed to lodge to the federal executive power authority on breeding achievements a request on examining the claimed breeding achievement for novelty. As soon as such request for examination is received, the authority is supposed to notify the applicant accordingly on the essence of the interested party’s request for examination. The applicant is allowed, within a three-month period after the receipt of said notification, to submit the grounded objection to the authority in response to the interested party’s request for examination. Based on the submitted documents, the authority makes a decision and informs accordingly the interested party. If the breeding achievement is lacking novelty, it is decided to refuse granting a patent for breeding achievement. As to examination for distinctiveness, homogeneity and stability, it takes place by means of techniques and within time limits prescribed by the authority responsible for normative legal regulation in the field of agriculture. The applicant should provide for tests the necessary quantity of seeds, breeding material and pay the examination fee by the date specified by the authority. If the certified copy of the provisional application has been submitted, the applicant becomes free of providing further documents and materials for testing during three years from the filing date.
Appeal: an appeal against judgments made by the State Commission can be lodged with a court.
Granting, Protection
Patent grant procedure: if the variety meets the requirements of patentability, the State Commission issues the Decision of Allowance, drafts a description of the variety, and enters a record of the breeding achievement into the State Register of protectable breeding achievements.
Patent holder commitments: maintenance of a variety or a breed for the entire patent validity period so as to retain features listed in the description of the plant variety or animal breed as of the date of entry of the breeding achievement record into the State Register of protectable breeding achievements. Upon request from the federal executive power authority for breeding achievements, a patent holder is to send at his own expense seeds and breeding material for control tests and ensure the possibility of on-site inspections.
Duration: thirty years from the date of registration in the State Register of protected breeding achievements; for vines and trees: thirty-five years.
Annuities: the proprietor has to pay an annual fee for each year of the term of protection for the variety.
Licenses: possible and must be registered before the State Commission.
Use of the variety name: necessary.
Publication: Official Gazette issued by the State Commission.
Opposition against a granted patent: any natural person or legal entity may, during the entire term of its effect, file an opposition against the grant of the patent with the State Commission on the grounds of failure to comply with the criteria of patentability or of unlawful specification of a patent holder. Opposition against the grant of a patent must be examined within six months from the filing date thereof. The person who filed the opposition and also the patent owner may participate in its examination.
Infringements: the law stipulates that no one may use a variety without the proprietor’s consent. If infringement is suspected, the proprietor can bring the matter before the court.
Invalidation: a patent is invalidated by the State Commission for the following reasons: a patent was issued based on unproven information on uniformity and stability of the breeding achievement provided by the applicant; the breeding achievement was not novel and distinguishable as of the patent issuance date; or a party specified as a patent holder had no lawful grounds for obtaining a patent. A breeding achievement patent found invalid is subject to cancellation from the date of filing the patent application.