Substantive Examination of the PVP Application
ARTICLE 36. Issuance of Test Guidelines. – The Board shall issue species – specific test guidelines for use in examining the distinctness, uniformity and stability of the plant samples subject of the application. These guidelines shall prescribe the propagating material requirements, procedures for the conduct of tests, methods and observations, set of descriptors or table of characteristics and such other information as the Board may deem necessary. In the absence of any test guidelines for a specific species, complete applications shall nevertheless be accepted and accorded a filing date by the PVP Office. However, substantive examination shall be deferred until after the issuance of the relevant guidelines.
ARTICLE 37. Substantive Examination of Application. – Examinations of applications shall include a review of all available documents, publications, or other materials relating to varieties of the species involved in the application.
ARTICLE 38. Requirements for the Grant of Plant Variety Protection. – Plant variety protection shall be granted for varieties that are:
(c) Uniform; and
(d) Stable. [Sec. 4]
ARTICLE 39. Newness. – A variety shall be deemed new if the propagating or harvested material, which may be the entire plant or its other parts, of the variety has not been sold, offered for sale or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of this variety in the following instances:
a) In the Philippines for more than one (1) year before the date of filing of an application for plant variety protection; or
b) In other countries or territories in which the application has been filed, for more that four (4) years or, in the case of vines or trees, more than six (6) years before the date of filing of an application for plant variety protection.
However, the requirement of novelty provided for in the Act shall not apply to varieties sold, offered for sale or disposed of to others for a period of five (5) years before July 19, 2002; Provided, that the application for PVP shall be filed within one (1) year from July 19, 2002. [Sec. 5]
ARTICLE 40. Distinctness. – A variety shall be deemed distinct if it is clearly distinguishable from any commonly known variety at the time of the filing of the application. The filing of an application for the granting of plant variety protection or for the entering of a new variety in an official register of variety in the Philippines or in any country, shall render the said variety a matter of public knowledge from the date of the said application; Provided, that the application leads to the granting of a Certificate of Plant Variety Protection or the entering of the said other variety in the official register of variety as the case may be.[Sec. 6]
ARTICLE 41. Uniformity. – A variety shall be deemed uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics. Distinctiveness of a variety shall require that it be sufficiently uniform in all its relevant characteristics enabling it to be distinguishable from other varieties of the same species. [Sec. 7]
ARTICLE 42. Stability. – A variety shall be deemed stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle. [Sec. 8]
ARTICLE 43. Manner of Conducting Tests. – The Board may carry out the necessary tests, cause the conduct of tests, or consider the results of other tests or trials that have already been done within and outside the country. For this purpose, the Board shall require the applicant to furnish all the necessary information, documents or materials, other than those listed in Articles 26, 27 and 28, within such period as it may prescribe.
ARTICLE 44. DUS Testing Centers. – Test to determine the distinctness, uniformity and stability of the plant samples subject of the application shall be performed only in DUS Testing Centers that have been duly accredited by the Board. The Board shall designate appropriate state colleges and universities, bona fide research institutions, or appropriate non-governmental research centers as testing centers for the distinctness, uniformity and stability of varieties to assist the Examiner in determining whether the variety meets the conditions for granting plant variety protection under the Act. [Sec. 69, para. 2]
ARTICLE 45. Plant Variety Registry. – All plant varieties accorded plant variety protection shall be recorded in the Plant Variety Registry. The Plant Variety Registry shall have a separate list for traditional varieties, landraces and commercial varieties not eligible for plant variety protection.
ARTICLE 46. Rejection of an Application. – An application shall be rejected where:
a) the variety is determined to be not new, distinct, uniform, or stable;
b) it is filed by a person who is not entitled to plant variety protection.
When an application is rejected, the Board, through the Registrar, shall immediately inform the applicant of the reasons for rejection of the application, and when applicable, identify and provide the documents used as the basis for rejection. [Sec. 35]
ARTICLE 47. Reasons for Rejection. – The following documents may be used to support the rejection:
a) When the reason for rejection involves the citation of a complex material, the particular part of the material relied upon by the Examiner shall be identified. The relevance of each reason, if not obvious, shall be clearly explained to the applicant.
b) If prior domestic certificates are cited as a reason for rejection, their numbers and dates and the names of the owners shall be stated in the notice of rejection;
c) If prior foreign certificates or rights are cited as a reason for rejection, their nationality or country, numbers and dates, and the names of the owners shall be stated, and such other data shall be furnished, as may be necessary to enable the applicant to identify the relevant certificates or rights;
d) If printed or electronic publications are cited as reason for rejection, the author (if any), title, date, pages or plates, websites and places of publication, or place where a copy of the publication can be found shall be provided to the applicant;
e) When the rejection is based on facts known to the Examiner, and upon request by the applicant, the rejection shall be supported by the affidavit of the examiner.
ARTICLE 48. Request for Reconsideration of a Rejected Application. – Within two (2) months from receipt of the rejection notice, the applicant may file an amended application or a request for reconsideration to the Board. The request for reconsideration shall explain in detail the alleged errors in the Examiner’s action. The applicant shall respond to each reason that the Examiner cited as basis for rejection. The Board may reverse its initial finding or issue a final rejection within two months from the date of filing of the amended application or request for reconsideration: Provided, that a decision on any request for reconsideration on the ground of faulty form or procedure may be held in abeyance by the Registrar until the question of the variety being new, distinct, uniform, and stable is settled. [Sec. 35(a)]
ARTICLE 49. Reconsideration and Final Action. – If the Board reverses its initial finding, the application shall be deemed as filed on the date of the original filing. However, if, despite the amendment of the application or request for reconsideration, the application is still denied by the Board, the Registrar shall notify the applicant of the reason or reasons for denial in the same manner as prescribed in Article 47. SEIDAC The decision of the Board is final except for fraud or manifest error on the part of the Board, in which case, the applicant may appeal it to the proper court within two months from the date of receipt of denial. [Sec. 35(a)]
ARTICLE 50. Designation of Variety. – The variety shall be designated by a denomination which shall be its genetic description. It must:
(a) be different from any denomination that designates an existing variety of the same plant species or closely related species; [Sec. 9]
(b) enable the variety to be identified. It may not consist solely of figures, except when it is an established practice for designating such a variety; [Sec. 11];
(c) not mislead or cause confusion concerning the characteristic value or identity of the variety or identity of the breeder; [Sec. 12]
(d) not be already registered to another breeder or is being used by a third party in relation to the sale or offering for sale of a particular variety prior to the filing date or priority date of an application for a Certificate for Plant Variety Protection; [Sec. 10] and
(e) not be contrary to public order or morality.
ARTICLE 51. Refusal of Denomination. – If the denomination does not satisfy the requirements listed in Article 50, its registration shall be refused and the applicant shall be required to propose another denomination within thirty (30) days from receipt of notice of disallowance from the Registrar. The denomination shall be registered together with the grant of the plant variety protection, and no plant variety shall be registered without a variety denomination approved by the Board. [Sec. 13]
ARTICLE 52. Right of Priority over Denomination. – In case two or more applicants apply for the registration of the same denomination, the applicant who has the earliest filing date or priority date shall have the right to register the same to the exclusion of the other applicant. [Sec. 10]
ARTICLE 53. Denomination Used in an Application Previously Filed Abroad. – An application filed in the Philippines, the subject matter of which is the same as that of an application previously filed abroad, shall use the same denomination as the latter. However, if such denomination does not conform to the conditions listed in Art. 50, the applicant shall be required to submit a new denomination. [Sec. 14]
ARTICLE 54. Obligation to Use Denomination. – Any person who offers for sale or markets in the Philippines the propagating material of a protected variety shall use the denomination of that variety even after the expiration of the breeder’s right to use it except when a third person has acquired a prior right to the use of the denomination. [Sec. 15]
ARTICLE 55. Use of Marks. – When a protected variety is offered for sale or marketed, it may be associated with a trademark, trade name or other similar indication with a registered denomination. Such indication shall not be used without the denomination, which must at all times be easily recognizable.