N.B. Please ensure that your responses to the questions above cover each category of subject matter specified in Article 27.3(b), namely micro-organisms, essentially biological processes for the production of plants or animals, microbiological processes, non-biological processes, plant varieties and other inventions concerning plants or animals.
Section 7(2)6 of the Patents Act stipulates that "biotechnological inventions that can be used solely for one particular plan to animal variety" shall not be protected with patents.
See the answer to question 1 above.
[Answer A.1: Section 7(2)6 of the Patents Act stipulates that "biotechnological inventions that can be used solely for one particular plan to animal variety" shall not be protected with patents.]
Section 6(2)8 of the Patents Act indicates that plant and animal varieties are not regarded as the subject of an invention.
According to Sections 7(1)1 and 7(2)4 of the Patents Act, patent protection shall not apply to: - inventions contrary to ordre public and morality; and - processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to the health care of human beings or animals, and also animals resulting from the use of such processes.
The concept of "plant variety" is defined by Section 2 of the Plant Varieties Act: "§2. Variety and essentially derived variety. (1) "Variety" means a plant grouping within a single botanical taxon of the lowest known rank which is defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, is distinguished from other plant groupings by the expression of at least one of the said characteristics and is considered as a unit with regard to its suitability for being propagated unchanged. Such plant grouping is deemed to be a variety irrespective of whether the conditions for the grant of a plant variety right are fulfilled or not. (2) A plant grouping consists of entire plants or parts of plants (hereinafter variety constituents) which are capable of producing entire plants with the same characteristics. (3) A variety is deemed to be essentially derived from another variety if it is predominantly derived from the initial variety or a variety that is itself predominantly derived from the initial variety, it is clearly distinguishable from the initial variety, and, except for the differences which result from the act of derivation, 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. (4) Essentially derived varieties may be obtained by the selection of a mutant or a variant individual of the initial variety, by back-crossing, transformation by genetic engineering, somatic cloning, or other such method." The concept of an animal breed is defined in Section 2(9) of the Farm Animal Breed Act: ""Breed" means a group of animals of the same species, with similar parentage, conformation and economic utility, whose number is sufficient for breeding purposes."
Yes, as far as biological material can be the subject of an invention (Section 6(1) of the Patents Act).
It is not possible to obtain a patent on an essentially biological process for the production of a plant or animal. Under Section 7(2)5 of the Patents Act, processes are unpatentable which are biological in essence and are used for deriving biological materials, producing plant or animal varieties, except microbiological processes for deriving micro-organisms. An essentially biological process for the derivation of a biological material or production of plant or animal varieties is defined in Section 7(3) as a process which consists entirely of natural phenomena, including crossing and selection.
Yes (artificial re creation and clones are permitted).
Yes. The Plant Varieties Act provides for a sui generis form of protection for new plant varieties.
Estonian legislation is based on the 1991 Act of the UPOV Convention.
No. Section 40 of the Plant Variety Rights Act stipulates: "A protected variety may be used without a licence issued by the holder of the plant variety right: 1) in scientific research and in official trials conducted for the purposes of comparison; 2) as parental material for the purpose of breeding new varieties; 3) privately, and for non-profit purposes."
Yes, if the exploited variety is essentially derived from the protected initial variety or from a variety that is itself predominantly derived from that initial variety.
No, but at the request of the right holder or his representative the farmer must provide information about the quantities of the seed harvested. A licence fee has to be paid if the protected variety is grown for personal purposes on a territory bigger than 10 ha.
Yes (see the response to question 10(c)).
[Answer B.10(c): No, but at the request of the right holder or his representative the farmer must provide information about the quantities of the seed harvested. A licence fee has to be paid if the protected variety is grown for personal purposes on a territory bigger than 10 ha.]
Yes, protection can be obtained for a plant variety that was known to the public or was publicly available prior to the application for sui generis protection for that plant variety. In the case of availability of a plant variety in Estonia, the time-limit is one year. In the case of availability in the territory of another state, the time-limit is four years and in the case of trees and grapevines, the time-period is not longer than six years.
The issue is currently under consultation with the UPOV.
© World Trade Organization 2023
ver 18.104.22.16829 (26/08/2022 10:49 AM)