Breeders' Q&A: How to Obtain PBR in Kazakhstan. Application, Procedures, Fees
Note on terminology: this article uses the original Kazakh legal terminology. Henceforth, this article will refer to Plant Breeders Rights as “patents on breeding achievement”. These are not to be confused with patents.
Although not a UPOV member yet, Kazakhstan provides for the protection of Plant Breeders’ Rights. Currently, UPOV lists Kazakhstan as a state that has initiated the procedure for acceding to the UPOV Convention. To obtain an exclusive Plant Variety Right in the territory of Kazakhstan, breeders can apply for a patent on breeding achievement.
Q1. How is the priority calculated?
The priority can be established by the date of filing of the first application in a UPOV member state (the so-called “convention priority”). The priority date is the date of the first application filed for the same variety in one of the UPOV member states within 12 months.
Q2. What authority is in charge?
Applications for patents on breeding achievement are submitted to the Patent Office of the Republic of Kazakhstan (KAZPATENT).
Q3. Do breeders need to appoint a legal representative?
Yes, foreign individuals and companies need to appoint a legal representative for all patent-related procedures, including those carried out before the Board of Appeals. Such legal representatives have to be registered with competent authorities.
Q4. What are the protection terms?
35 years for grape varieties, tree ornamental, fruit, and forest crops, including their rootstocks.
25 years for all other plant varieties.
Q5. When does the protection start?
The protection starts on the date of filing.
Q6. What documents are required for an application?
Applicants should submit:
a) an application for a patent on breeding achievement (three copies)
b) a breeding achievement questionnaire (two copies)
c) a power of attorney (one copy).
The documents don’t have to be legalized. Electronic copies suffice for the application. Applicants have to fill in and submit the KAZPATENT native application forms, however, in addition, an electronic copy of, e.g., the CPVO Technical Questionnaire can be attached as a reference.
Q7. Does KAZPATENT accept DUS reports by foreign PVP offices? If a foreign DUS report is used, is it still necessary to submit plant material for testing?
KAZPATENT accepts DUS reports by foreign PVP offices, however only as additional information.
Nevertheless, KAZPATENT may still require a plant material submission in some specific species. In grape, it is not necessary to submit seed.
In the application stage, KAZPATENT does not require plant material submission. Applicants should provide only the documents described in Q6 above along with a document confirming the payment for the preliminary examination. However, plant material is always required when applying for entry in the National Catalogue (the State Register of Breeding Achievements Recommended for Use in the Republic of Kazakhstan).
Q8. What steps does the application procedure at KAZPATENT entail?
a. Preliminary examination – within two months after the filing, KAZPATENT will establish the priority date, check the filed documents, and the fulfillment of the registration requirements.
b. Publication of the application – if the preliminary examination has a positive outcome, the application will be published in the bulletin within a month from the date of the decision. Copies of the application and the breeding achievement questionnaire are sent to the State Commission under the Ministry of Agriculture.
c. Provisional Legal Protection and Third-Party Claims – the provisional protection starts after the publication of the application. Third-party claims can be filed to the State Commission during the period of six months after the publication date.
d. Examination for patentability - this step of the application process usually takes one to three years to complete. During this stage, the State Commission conducts the DUS examination of the plant material submitted by the applicant. The State Commission may accept DUS test results carried out by another local organization, a foreign competent authority where a cooperation agreement is in place, or even the data provided by the applicant. If the variety meets the conditions of patentability, the State Commission will draw an opinion with the description of the variety.
e. Grant of the patent - Based on the conclusion of the State Commission, the KAZPATENT, within ten working days, decides on the grant. Applicants must submit documents confirming the payment for the patent grant and its publication within three months from the date of the grant notification.
Q9. How much are the application, grant, and annual fees?
The annual maintenance fee for a patent on breeding achievement starts at EUR 22 (first three years) and increases gradually to EUR 229 (from the 21st annuity on).
Other official fees:
Filing a conventional selection achievement application - EUR 22
Claiming priority, including the later transmission of the priority document - EUR 43
Correction/late filing fees - EUR 13
These are state fees that do not include the fees for filing and representation.
Q10. Is it possible to renew/prolong a patent on a breeding achievement?
Yes, after the patent expiration, the patent holder can file for an extension of the protection by a maximum of 10 years. It has to be filed prior to the expiration.