Scope of breeder’s right

(1) (a) Subject to sections 18 and 19 of this Act, the following acts in respect of the propagating material of a protected variety shall require the authorization of the holder of the breeder’s right granted in respect of the variety, (i) production or reproduction (multiplication); (ii) conditioning for the purpose of propagation; (iii) offering for sale; (iv) selling or other marketing; (v) exporting; (vi) importing; and 14 (vii) stocking for any of the purposes referred to in sub-paragraphs (i) to (vi) of this subsection. (b) The holder may make his authorisation subject to conditions and limitations. (2) Subject to sections 18 and 19 of this Act, the acts referred to in subsection (1) (a) (i) to (vii) of this section, in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of the propagating material of the protected variety shall require the authorisation of the holder, unless the holder has had reasonable opportunity, before the harvested material is obtained, to exercise his right in relation to the unauthorized use of the propagating material. (3) (a) The provisions of subsections (1) and (2) of this section, shall also apply in relation to varieties, (i) which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; (ii) which are not clearly distinguishable in accordance with section 7 of this Act from the protected variety; and (iii) whose production requires the repeated use of the protected variety. (b) For the purposes of subparagraph (a) (i) of this subsection, a variety shall be deemed to be essentially derived from another variety (“the initial variety”) where, (i) it is predominantly derived from the initial variety, or from a variety that is Protection of New Plant Varieties [CAP. 25515 itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotypes of the initial variety; (ii) it is clearly distinguishable from the initial variety; and (iii) except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety. (c) Essentially derived varieties may be obtained for example by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering.