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Chapter IV Maintenance of Rights
Article 33
In order to perform follow-up testing to determine whether the plant variety protected by a plant variety right still maintains its original characteristics, the central competent authority may require the holder of the plant 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 plant 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 plant variety fails to meet the requirements of Article 13, the central competent authority may require the holder of the plant variety right to propose a suitable denomination within a specified time period.
Article 36
A plant variety right shall expire under any of the following circumstances:
1. in the case of the final date of the term of a plant variety right, on the day immediately following the final date of the term;
2. in the case of voluntary abandonment of the plant variety right, on the date that the central competent authority receives a written declaration from the holder of a plant variety right to such effect, unless another date of abandonment is specified in writing; then in that case, on such date; or
3. in the case the holder of a plant variety right fails to pay the annual fee within a time period for remedial payment, on the date immediately following the final date of the annual payment term.
In the case of death of the holder of a plant variety right without a person claiming to be an heir, the plant variety right shall pass to the ownership of the national treasury in accordance with the requirements of Article 1185 of the Civil Code.
Article 37
The central competent authority shall nullify a plant variety right, either upon request or ex officio, under either of following circumstances:
1. the plant variety protected by a plant variety right fails to meet the requirements of Article 12, or
2. the plant variety right was obtained by a person who is not entitled to the right to apply for the plant variety right.
The central competent authority may cancel a plant variety right, either upon request or ex officio, under any of the following circumstances:
1. after the right is obtained, such plant variety protected by the plant variety right no longer meets the requirements of uniformity or stability under Article 12;
2. the holder of a plant variety right fails to fulfill his or her obligations in accordance with the requirements of Article 33 without good cause, or
3. the holder of a plant variety right fails to propose a suitable denomination under Article 35 without good cause.
Upon nullification or cancellation of a plant variety right, theplant 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 plant variety right falls within any of the circumstances set forth under Paragraph 1 or Paragraph 2 of the preceding Article may submit to the central competent authority a request for nullification or cancellation of such plant 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 plant variety right may request nullification under Subparagraph 2 of Paragraph 1 of the preceding Article.
If a plant variety right is nullified in accordance with Paragraph 1 of the preceding Article, such plant variety right shall be deemed to be nonexistent from its beginning.
Article 39
The central competent authority shall publish any amendments to, compulsory license or license to, creation of pledges on, and expiration, nullification, or cancellation of, a plant variety right.
Article 40
In the event of an infringement on a plant variety right, the holder of the plant variety right or his or her exclusive licensee may demand the removal of the infringement and the prevention of any threat of infringement. In addition, the holder of the plant variety right or his or her exclusive licensee may claim damages against any persons who intentionally or negligently infringe on the plant variety right.
When a holder of the plant variety right or an exclusive licensee of the plant variety right seeks remedies in accordance with the requirements of the preceding Paragraph, he or she may request the destruction of any products infringing on the plant variety right or any material or equipment involved in the commission of the infringement, or request other necessary measures.
In the case of an infringement of the right to have the breeder's name indicated, the breeder may request that his or her name be indicated as the breeder, or may request other measures necessary for restoring his or her reputation.
The rights to seek remedies provided for in this Article shall lapse if not exercised within two years of the date on which the claimant becomes aware of the infringing act and the identity of the person required to give remuneration, or if longer than ten years have elapsed from the time the infringing acts.
Article 41
When claiming damages in accordance with the requirements of the preceding Article, either of the options under the following Subparagraphs may be used to calculate the amount of damages:
1. In accordance with the requirements of Article 216 of the Civil Code, if no evidentiary methods can be provided to prove the damage, the holder of a plant variety right or his or her exclusive licensee may use the difference between the profits actually made by the right holder after the infringement on the plant variety from profits normally expected from exercise of such variety or its dependent variety.
2. Profits that the infringer actually earned as a result of the infringing activities; where the infringer is unable to produce proof of costs and/or necessary expenses, the entire income derived from the infringer's sales of the infringing articles may be deemed to be the infringer's profits.
In addition to the requirements set forth in the preceding Paragraph, the holder of the plant 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 nullification or cancellation actions of a plant variety right, the adjudication on all civil proceedings concerning such plant variety right shall be suspended.
Article 43
An unrecognized foreign juristic person or organization may institute civil proceedings in respect of the matters governed by this Act provided that the juristic person or organizations of the R.O.C. are entitled to the same rights under treaties, agreements, national laws, or customary practices of the applicant's home country. The above provision also shall apply to plant 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.