New Plant Varieties
– Law of Ukraine on Protection of Rights to Plant Varieties of April 21, 1993, amended by the Revision Act No. 1460-I of December 8, 2015, which entered into force on June 30, 2016.
Membership in International Conventions
– International Convention for the Protection of New Varieties of Plants (UPOV), Act of 1978, as of June 6, 1995, and Act of 1991, as of January 19, 2007.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), as of December 22, 2003.
– WTO’s TRIPS Agreement, since May 16, 2008.
Kinds of plants: all species and genera of plants are admitted to legal protection by Plant Breeders’ Rights.
Applicant: a breeder or his successor in title or employer, who is a Ukrainian citizen/legal entity or a citizen of any Convention country, or a person/entity residing or having his/its business in such country.
Foreigners: must appoint a representative, in particular a patent attorney in Ukraine.
Priority: may be claimed based on an application filed in a Convention country within the preceding twelve months.
Conditions for protection: a patent is granted on a variety, which is new and meets the requirements of distinctiveness, uniformity and stability.
Distinctiveness: a variety meets the requirement of distinctiveness if it is distinguishable from any other variety commonly known at the date of filing an application. A variety is commonly known if it has been used, entered in an official Register, if the description thereof is given in one of the publications or applications, it is registered in any country or deposited in a publicly available collection.
Uniformity: a variety is considered to be uniform if, in view of the way of breeding, all plants of this variety remain sufficiently similar in their main characteristics provided in the specification.
Stability: a variety is stable if its essential characteristics do not change after subsequent propagations or at the end of propagation cycles as compared to those mentioned by the applicant in the specification.
Novelty: the variety is new if it was not sold or in any other way alienated by an applicant (breeder) or another authorized person to a third party in the territory of Ukraine one year prior to the filing date, and in the territory of any other state four years prior to the filing date (six years for trees, shrubs and grapes).
Filing requirements for an application (to be sent to resident patent attorney, who will file to PVO):
1. Power of attorney (legalization/apostillation is required);
2. Application form (2 copies) (may be signed by a representative) indicative of the applicant and his address, a breeder (author) of the variety, name of the variety, and if claiming a priority, data for the prior application, information on applications for the same variety filed in other States;
3. Technical questionnaire (two copies) (including information on the origin of the variety, particulary breeding methods and parent forms);
4. Indices for ascertainment of suitability of variety to be used in Ukraine (if an intention to obtain proprietary intellectual property right to use the variety is indicated in the application) (two copies);
5. Document certifying payment of the application filing fee;
6. Copy of the first application for claiming priority (if an applicant claims priority according to the date of the first application filing in other States);
7. Ukrainian translation of the first application;
8. Photos of the plant variety or plant organs;
9. Example of the variety planting material;
Recordal: filed applications are registered in the Register of Applications.
The examination is carried out by the Ukrainian Institute of Plant Variety Examination as a competent examining authority.
Formal examination: the Institute carries out formal examination to ascertain whether the application meets the prescribed formal requirements. A notification on the allocation of the filing date has to be forwarded to the applicant within ten days following the filing date along with a request for providing planting stock for the purpose of examination. The planting stock imported for the purpose of trials is exempt from customs duties, as well as the requirements for providing respective licenses/certificates for customs clearance or for the State and sanitary examination. Quarantine control of such plants is free. The first notification of the results of formal examination must be forwarded to the applicant not later than within three months after the filing date. The applicant has two months for remedies in case where the application does not meet those requirements.
Publication: if the application has undergone the formal examination, it is published in the Official Bulletin.
Objection: any person may file an objection against registration of the variety to the State Service for Protection of Rights to Plant Varieties on the grounds of non-conformity of the variety with the requirements of patentability. Such objection may be filed within three months after the date on which the application particulars were published in the Register of Applications.
Provisional protection: provided for; it extends over the period from the date of publication of an application to the day following the date of the State registration or the date of entering information about withdrawal of the application or refusal of registration in the Register of Applications.
Examination: the examination for grant of plant breeders’ rights is carried out by cultivating the variety with the competent authority or an authorized expert institution, or based on the DUS test results from any other Contracting State provided by the applicant. In first instance, the Institute or an authorized expert institution requests the applicant to supply appropriate propagation material and pay the examination fees. Additionally, the State trial for suitability of the variety to be used in Ukraine is carried out. In case of examination by a third party expert institution, the latter shall report the results to the competent examining authority. The Ministry of Agrarian Policy and Food of Ukraine is authorized to issue a respective decision on the variety (the certificate of authorship of the plant variety, the patent for the plant variety, the certificate of the State registration of the plant variety). When considering suitability of the proposed name of the variety in relation to registered trademarks and appellations of origin, the Ministry for Development of Economy, Trade and Agriculture of Ukraine is involved. The applicant may use a selection code as the proposed variety denomination.
Appeal: an applicant may appeal against any decision of the Ministry of Agrarian Policy and Food of Ukraine or the Ukrainian Institute of Plant Variety Examination with regard to the application before the court.
Beginning of protection: the protection starts with the registration of a variety at the State Register of Plant Varieties.
Duration: duration of a patent for a vine, tree and shrub variety is thirty-five years. This term starts from the date of registration and ends on the last calendar day of the thirty-fifth year immediately following the year of registration. Duration of patents for the other plant varieties is thirty years, respectively.
Annual fees: the registered owner of the variety must pay the official annual fee for every year of the patent term beginning from the calendar year in which the registration occurs.
Voluntary licenses – Assignment: a plant breeders’ rights owner has the right to assign to any natural person or legal entity his entire rights or grant the right to use his variety under the terms of a license agreement. The assignment deed and license agreement must be registered. Both deeds become valid for third persons from the date of the registration.
Compulsory licenses: possible; compulsory licenses are granted by the Cabinet of Ministers and the court. In case of non-use of a variety by the plant breeders’ rights owner within the first three years following the grant, or if the plant breeders’ rights owner refuses to grant a license, any person who wishes to use the variety may apply to the court for the grant of the compulsory non-exclusive license. Compulsory licenses may also be granted in the events of war or state of emergency for the term of up to four years.
Use of the variety name: compulsory.
Modification of Protection after Registration
Nullification: plant breeders’ rights may be declared invalid in full or in part by the court. The grounds for invalidation may be non-conformity of the variety with the DUS requirements by the date of filing the application or in case where the rights were granted to a person who was not entitled to obtain the plant breeders’ rights.
Infringement and penalties: administrative and penal sanctions are provided for, such as imposition of fines on an infringer, hard labor or imprisonment.