ADVOKS GLOBAL · KENYA
Seeds and Plant Varieties Act
23. Licences
Edition: 2022-12-31 · In force
23. Licences
(1)The holder of plant breeder’s rights has the obligation to stock the market with propagating material at reasonable prices and he may do this by himself or he may grant such licences as are necessary to stock the market with propagating material on reasonable terms and conditions.(2)The obligation referred to in subsection (1) of this section shall include the obligation of the holder of plant breeder’s rights to furnish the licensee with the propagating material he needs at a reasonable price if he is to make proper use of the licence.(3)If the Cabinet Secretary, upon the application of any person, is of the opinion that the stocking of the market with the propagating material is not adequately ensured, he shall communicate this to the holder of the plant breeder’s rights, stating the reasons for his opinion and shall enable him to remedy the situation and, if the holder fails to do so, grant any such rights as respects the plant variety in the form of a compulsory licence to interested parties.(5)In entertaining applications for settling the terms of compulsory licences, the Cabinet Secretary shall endeavour to secure that the plant variety is available to the public at reasonable prices, that it is distributed as widely as possible, that it is maintained in quality, and that there is reasonable remuneration for the holder of the plant breeder’s rights concerned.(6)A compulsory licence may include terms obliging the holder of the plant breeder’s rights to make reproductive material available to the licensee.(7)Where—(a)the holder of the plant breeder’s right to which an application under subsection (3) of this section relates is, or is represented by, a society or other organization which has as its main object, or one of its main objects, the negotiation or granting or licences to exercise plant breeder’s rights, either as the holder of the rights or as agent for holders; and(b)an organization, whether claiming to be representative of persons requiring licences or not, or a person whether requiring a licence or not, applies to the Cabinet Secretary for an opportunity of making representations concerning the application, and the Cabinet Secretary is satisfied that such organization or person has a substantial interest in the application and that the application involves issues which may affect other applicants for compulsory licences under this section; and(c)if the applicant under paragraph (b) of this subsection of this subsection is an organization, the Cabinet Secretary is satisfied that it is reasonably representative of the class of persons which it claims to represent,the Cabinet Secretary shall afford to the organization or person applying under paragraph (b) of this subsection an opportunity of making representations to him and of being heard by the Cabinet Secretary or by a person appointed by the Minster for that purpose.(8)The Cabinet Secretary, before granting a compulsory licence shall satisfy himself that the applicant is financially and otherwise in a position, and intends, to exploit the rights to be conferred upon him in a competent and businesslike manner, and that the grant of such licence will not compromise the maintenance of the reproductive material concerned.(9)Without prejudice to the remedies available to the holder of a compulsory licence by the taking of proceedings in any court, the Cabinet Secretary may, if it is represented to him by any person that the holder of the plant breeder’s rights concerned has failed to meet any obligation imposed upon him by such licence, and if he is satisfied that the representations are correct, cancel the grant of such plant breeder’s rights.(10)The Cabinet Secretary may at any time, on application made by any person concerned, extend or limit, or vary in any other respect, or revoke, a compulsory licence.(11)A compulsory licence may be granted whether or not the holder of the plant breeder’s rights concerned has previously granted licences to the applicant for the compulsory licence or to any other person, and shall not be an exclusive licence.(12)If and so far as any agreement purports to bind any person not to apply for a compulsory licence it shall be void.