Various modifications can be made to a plant breeders' rights application or granted plant breeders' rights, such as a transfer, the assignment of a license or the establishment of a security in rem.
In order to secure the validity and enforceability of certain modifications of an application or a granted plant variety right, you must notify the Belgian Intellectual Property Office of the modification for the modification to be implemented in the register of plant varieties and to be published in the Bulletin of Plant Breeders' Rights and Catalogues of Varieties.
The modifications to be notified mainly concern:
- any modification to plant breeders' rights or an application for plant breeders' rights (for example, any change of the holder, applicant or proxy, any establishment of a security in rem, or a right in rem with regard to a plant breeders' rights title and the cancellation of the security or the right in rem, all disputes relating to civil rights, as well as the final decision on this claim or any other termination of the claim);
- any transfer of a plant breeders' rights application or granted plant breeders' rights;
- any contractual license concerning a plant breeders' rights application or granted plant breeders' rights.
Any notice of a modification requires a fee to be paid. In case of a transfer or a contractual license, certain formal requirements need to be fulfilled.
Transfer
The application for plant breeders' rights and the plant breeders' rights itself can be transferred to one or more rightholders or assigns.
The transfer among the living of an application or of plant breeders' rights must be made in writing under penalty of nullity. It does not affect the rights acquired by third parties before the date of the transfer.
All transfers must be notified to the Belgian Intellectual Property Office (IPObel) in accordance with further rules and the relevant fee must be paid.
- The notification must mention the following:
- the names, first names and full address of the parties;
- the date on which the application for plant breeders' rights was filed, the variety denomination, the number and the date on which plant breeders' rights were granted or of the application for plant breeders' rights;
- a statement as to whether or not the transfer creates a co-ownership situation.
- You must attach the following documents to the notification:
- either a copy of the deed of transfer, or of the official document attesting to the transfer of rights;
- either an extract from that deed or from the document proving the transfer;
- or a certificate of transfer signed by the parties.
Transfers have effect with regard to the IPObel, and only become enforceable against third parties from the date on which the Belgian Intellectual Property Office receives a valid notification, subject to its entry in the register.
However, before being listed in the register, a transfer is enforceable against third parties who acquired rights after the assignment date of the transfer, but who were aware of this transfer at the time when they acquired these rights.
Contractual license
A plant breeders' rights application or plant breeders' rights may be the subject of contractual licenses, entirely or partially. Those licenses may be exclusive or non-exclusive.
Licenses must be granted in writing under penalty of nullity.
All contractual licenses must be notified to the Belgian Intellectual Property Office (IPObel) according to further rules and the corresponding fee must be paid.
The notification must mention the following:
- the names, first names and full address of the parties;
- the date on which the application for plant breeders' rights was filed, the variety denomination, the number and the date on which plant breeders' rights were granted or of the application for plant breeders' rights;
- a statement whether the license is an exclusive or non-exclusive license;
- the date of entry into force of the license, its duration, and the territory to which the license applies.
Licenses have effect with regard to the IPObel, and only become enforceable against third parties from the date on which the Belgian Intellectual Property Office receives a valid notification, subject to its entry in the register.
However, before being listed in the register, a license is enforceable against third parties who acquired rights after the date of granting of the license, but who were aware of this license at the time when they acquired these rights.
The applicant or holder can invoke the rights arising from the application or from the plant breeders' rights against a licensee who violates any of the conditions or restrictions attached to his license.
