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Chapter 4 Maintenance of Rights
Article 33
In order to perform follow-up testing to determine whether the variety protected by a variety right still maintains its original characteristics, the central competent authority may require the holder of the variety right to provide an adequate quantity of plant seeds of such variety or other necessary information.
Article 34
The central competent authority may appoint its subordinate agencies or entrust other agencies or institutions to conduct the examination and follow-up testing of variety characteristics set forth in Article 20 and the preceding Article. The regulations governing such appointment or entrustment shall be prescribed by the central competent authority.
Article 35
If the denomination of the variety fails to meet the requirements of Article 13, the central competent authority may require the holder of the variety right to propose a suitable denomination within a specified time period.
Article 36
A variety right shall become extinguished under any of the following circumstances:
1. When the variety right expires, it shall be extinguished on the day following the expiration date;
2. When the variety right holder abandons the right, the variety right shall be extinguished from the date that the central competent authority receives a written declaration from the variety right holder; in the case a date of the abandonment is specified in the written declaration, the variety right shall be extinguished from that specific date; or
3. When the holder of the variety right fails to pay the annual fee within a time period for remedial payment, the variety right shall be extinguished on the date following the final date of the annual payment term.
In the case of the death of the holder of a variety right without a person claiming to be an heir, the ownership of the variety right shall be transferred to the national treasury in accordance with the requirements of Article 1185 of the Civil Code.
Article 37
The central competent authority shall revoke a variety right, either upon request or ex officio, under any of the following circumstances:
1. The variety protected by a variety right fails to meet the requirements of Article 12; or
2. The variety right is obtained by a person who is not entitled to the right to apply for the variety right.
The central competent authority shall annul a variety right, either upon request or ex officio, under any of the following circumstances:
1. After the variety right is obtained, such variety protected by the variety right no longer meets the requirements of uniformity or stability under Article 12;
2. The holder of a variety right fails to fulfill his or her obligations in accordance with the requirements of Article 33 without justifiable reasons; or
3. The holder of a variety right fails to propose a suitable denomination under Article 35 without justifiable reasons.
Upon the revocation or annulment of a variety right, the variety right certificate shall be returned within a specified time limit. If such certificate fails to be returned upon demand, such certificate shall be recorded and published as invalid.
Article 38
Any person who believes that a variety right falls within any of the circumstances set forth in Paragraphs 1 or 2 of thepreceding Article may submit to the central competent authority a request for revocation or annulment of such variety right together with a written statement explaining the reasons for the request and any supporting evidence, provided that only the holder of the right to apply for such variety right may request revocation under Subparagraph 2 of Paragraph 1 of the preceding Article.
If a variety right is revoked in accordance with Paragraph 1 of the preceding Article, such variety right shall be deemed to be nonexistent from the beginning.
Article 39
The central competent authority shall publish any amendments to, compulsory license or license to, creation of pledges on, and expiration, revocation, or annulment of, a variety right.
Article 40
The holder of the variety right or his or her exclusive licensee may request the removal of the infringement and the prevention of any likely infringement. In case an infringement of the variety right occurs due to an intentional act or negligence, the right holder may claim damages suffered therefrom.
When making a request pursuant to the preceding Paragraph, the right holder or his or her exclusive licensee may request for destruction or other necessary disposal of the infringing articles or the materials or implements used for the infringement. Where the breeder’s right to be indicated as such is infringed, the breeder may request for necessary disposition(s) to have his/her name indicated or to restore the impaired reputation.
The rights to request as set forth in this Article shall become extinguished if not exercised within 2 years from the time the patentee becomes aware of the infringement and the person liable for the infringement. This right shall also become extinguished if it is not exercised within ten (10) years after the time of the infringement.
Article 41
The infringement claimed pursuant to the preceding Article may be calculated according to any of the following methods:
1. The method as set forth in Article 216 of the Civil Code; if no method of proof can be produced to prove the damages suffered, the variety right holder or exclusive licensee may claim damages based on the difference between the profit earned through the variety right exploitation after the infringement and the profit normally expected through the exploitation of the same variety right; or
2. The profit earned by the infringer as a result of the variety right infringement; when the infringer is unable to provide proof of costs and/or necessary expenses, the entire income derived from the infringer's sales of the infringing articles shall be deemed to be the infringer's profits.
In addition to the requirements set forth in the preceding Paragraph, the holder of the variety right or his or her exclusive licensee may claim separately for an appropriate amount of remuneration corresponding to losses to his or her respective business reputation as a result of the infringement.
Article 42
Prior to the final decision on the revocation or annulment of a variety right, the adjudication on all civil proceedings concerning such variety right may be suspended.
Article 43
An unrecognized foreign juridical person or organization may initiate civil proceedings in respect of the matters governed by this Act provided that the nationals or organizations of the R.O.C. are entitled to the same rights under treaties, agreements, or national laws or customary practices of the applicant's home country. The above provision also shall apply to variety right protection agreements that are concluded by and between the organizations or institutions of the R.O.C. and those of the foreign country and that are approved by the central competent authority.