Selection achievement consists of the result of a selection work of plant varieties or animal breeds. This result of selection is patentable if it is useful for society. The right to fill the application for the granting of the patent belongs to the author of this selection work.
There are two stages of the application’s examination, namely the preliminary examination and the examination for patentability. The preliminary examination is carried out within two months by the National Institute of Intellectual Property of the Ministry of Justice of the Republic of Kazakhstan (NIIP). This expert organization checks if requirements are fulfilled, and then takes the decision to send the application to the State Commission of the Ministry of Agriculture of the Republic of Kazakhstan (State Commission).
Article 4.1 of the Law of the Republic of Kazakhstan On Protection of Selection Achievements, 13 July 1999 (The Law) sets the condition of protection of the selection achievement which is provided if it is new, distinct, uniform and stable. Variety or breed meets these four criteria in the following cases:
1) Novelty – on the date of filing application, the variety or breed is not sold and transferred to other persons by the author for using it;
2) Distinguishability – the variety or breed obviously differs from any other variety or breed, which exist at the moment of filing the application is commonly known;
3) Uniformity – the variety or breed is homogeneous according to selected characteristics;
4) Stability – the main characteristics of the variety or breed remain unchanged after each propagation.
These conditions correspond to the international standard definition of the plant variety protection, determined in the International Union for the Protection of New Varieties of Plants system (UPOV), even if the Republic of Kazakhstan is not a member of the UPOV.
After the State Commission’s analyzing, the NIIP decides to grant the patent. In case of acceptance, the patent holder pays fees, the certificate is issued, then published. According to Article 3.1 of the Law, the patent certifies the exclusive right of the patent holder to use the selection achievement, its priority and the authorship of the variety or breed. The selection achievement is protected for twenty five years regarding plant varieties and thirty years concerning animal breeds from the date of the filing the application.
Pursuant to Article 21 of the Law, during the term of the protection, a patent may be contested and recognized invalid in case of objection against its grant, if it is established that:
1) A patent was granted on the basis of not confirmed data on homogeneity and stability of selection achievement represented by the applicant;
2) On the date of granting a patent, selection achievement was not in conformance with the criteria of novelty and distinguishability;
3) The person mentioned in the patent as a patent holder did not have legal grounds tp have the patent granted.