ORDER OF THE MINISTER OF JUSTICE OF THE REPUBLIC OF KAZAKHSTAN

of August 29, 2018 No. 1349

About approval of Rules of conducting examination of requests for selection achievements, objects of industrial property, trademarks, service marks, geographical instructions, names of places of goods origin, about registration of topology of integrated chips

According to the subitem 2) Item 2 of article 3-1 of the Law of the Republic of Kazakhstan "About protection of selection achievements", the subitem 2) Item 2 of article 4 of the Law of the Republic of Kazakhstan "The patent law of the Republic of Kazakhstan", the subitem 2) Item 2 of article 3 of the Law of the Republic of Kazakhstan "About trademarks, service marks, geographical instructions and names of places of goods origin", the subitem 2) article 4 of the Law of the Republic of Kazakhstan "About legal protection of topology of integrated chips" PRIKAZYVAYU:

1. Approve enclosed:

1) Rules of conducting preliminary expert examination of requests for selection achievements according to appendix 1 to this order;

2) Rules of conducting examination of requests for objects of industrial property according to appendix 2 to this order;

3) Rules of conducting examination of requests for trademarks, service marks, geographical instructions and names of places of goods origin according to appendix 3 to this order;

4) Rules of conducting examination of requests about registration of topology of integrated chips according to appendix 4 to this order.

2. To provide to department on intellectual property rights of the Ministry of Justice of the Republic of Kazakhstan in the procedure established by the legislation of the Republic of Kazakhstan:

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) within ten calendar days from the date of state registration of this order its direction in the Kazakh and Russian languages in the Republican state company on the right of economic maintaining "The republican center of legal information" for official publication and inclusion in Reference control bank of regulatory legal acts of the Republic of Kazakhstan;

3) placement of this order on official Internet resource of the Ministry of Justice of the Republic of Kazakhstan.

4. To impose control of execution of this order on the supervising vice-Minister of Justice of the Republic of Kazakhstan.

5. This order becomes effective after ten calendar days after day of its first official publication.

Appendix 1

to the Order of the Minister of Justice of the Republic of Kazakhstan of August 29, 2018 No. 1349

Rules of conducting preliminary expert examination of requests for selection achievements

Chapter 1. General provisions

1. These rules of conducting preliminary expert examination of requests for selection achievements (further - Rules) are developed according to the paragraph the second the subitem 2) of Item 2 of article 3-1 of the Law of the Republic of Kazakhstan of July 13, 1999 "About protection of selection achievements" (further - the Law) and determine procedure for conducting preliminary expert examination by requests for selection achievements (further - the request) which includes check of execution of the submitted documents and preliminary expert examination.

2. In these rules the following concepts are used:

1) the author of selection achievement (selector) (further - the author) - the physical person which created revealed or removed grade, breed;

2) selection achievement - the new grade of plant, new breed of animal which are result of creative activities of the person on which the patent is granted;

3) State commissions (further - State commissions) - State commission on sortoispytaniye of crops and State commission on testing and approbation of breeds of authorized body in the field of development of agro-industrial complex;

4) the conventional request - the application submitted according to the International convention on protection of selection achievements of December 2, 1961;

5) the applicant - physical person or legal entity which submitted the application for patent grant for selection achievement;

6) the patentee - the owner of the patent;

7) State register of selection achievements - The state register of the Republic of Kazakhstan of the protected plant varieties and the State register of the Republic of Kazakhstan of the protected breeds of animals which include grades, breeds on which patents are granted;

8) the bulletin - the official periodical concerning protection of selection achievements;

9) authorized body - Ministry of Justice of the Republic of Kazakhstan;

10) the expert organization - the organization according to article 3-2 of the Law created according to the decision of the Government of the Republic of Kazakhstan in form of business of the republican state company on the right of economic maintaining subordinated in the activities to authorized body;

11) World Intellectual Property Organization (further - VOIS) - the international organization providing and regulating international policy and cooperation in the sphere of intellectual property.

Chapter 2. Application for selection achievement

3. The application for patent grant according to Item 1 of article 5 of the Law is submitted by the author of selection achievement or its legal successor.

If selection achievement is created, revealed or removed in case of accomplishment of office task or service duties, the application for patent grant for selection achievement is submitted by the employer if the contract between the author and the employer does not provide other.

4. The application is submitted by person having rights to the security document (further - the applicant), through office of the expert organization, the official site of the expert organization www.kazpatent.kz (further - the website of the expert organization) or the web portal of "the electronic government" www.egov.kz (further - the Portal).

According to Item 3 of article 5 of the Law the request, is drawn up on each plant variety, breed of animals and contains:

1) the petition (further - the Statement);

2) questionnaire of selection achievement;

3) the power of attorney in case of record keeping through the representative.

The document confirming payment of application in the established size and the document confirming the bases for reduction of its size is submitted together with the request or within two months from receipt date of the request.

In case of non-presentation of documents on payment at the scheduled time the request is recognized not given.

The statement in duplicate (when giving via the website of the expert organization or the Portal - one copy) is submitted in form according to appendices 1 (livestock production), 2 (crop production) to these rules.

5. The physical persons living outside the Republic of Kazakhstan or foreign legal entities perform the rights of the applicant, patentee, and also the right of the interested person through patent agents.

If, along with specified persons applicant according to the request is the physical person living in the Republic of Kazakhstan or the legal entity having the location in the territory of the Republic of Kazakhstan business management on receipt of the patent not through the patent agent is possible on condition of specifying of the address for correspondence within the Republic of Kazakhstan.

The physical persons who are constantly living in the Republic of Kazakhstan, but temporarily being beyond its limits can perform the rights of the applicant, patentee, and also the right of the interested person without patent agent when specifying the address for correspondence within the Republic of Kazakhstan.

Chapter 3. Requirements to documents of the request for selection achievement

6. The statement and other documents of the request are submitted on Kazakh or Russian.

The questionnaire of selection achievement contains data on classification of grade, breed for identification of selection achievement.

7. Botanical determinations register roman type printing letters.

8. In case of application through the patent agent the application is signed by the patent agent.

Signatures in graphs of the statement are deciphered with indication of surnames and initials of the signing person.

Each additional leaf of appendix to the statement on which these or those data relating to the statement are provided is signed according to the procedure, stated above.

In the statement and appendix to it corrections and erasures are not allowed. In case of availability of the specified shortcomings correctly issued application or appendix to it is requested.

9. The questionnaire of selection achievement contains:

name of sort and type;

the offered name of selection achievement and selection number;

origin of selection achievement with indication of method of creation and initial (parent) forms;

features of maintenance and reproduction of selection achievement;

the signs of selection achievement characterizing distinctive features;

names of similar selection achievements and signs on which the declared selection achievement differs from similar;

special conditions for testing of selection achievement for distinguishability, uniformity and stability (in the presence).

10. The questionnaire of selection achievement is signed by the applicant (applicants) according to the procedure, determined by Item 8 of these rules.

The table of signs of selection achievements for the corresponding childbirth and types in which the applicant describes plant variety or breed of animals on degree and index of expressiveness of signs is attached to the questionnaire.

Chapter 4. Procedure for consideration of the request for selection achievement

11. The request is registered the expert organization from prostanovky date of their receipt and assignment of registration number.

The applicant is notified on adoption of the request within five working days by the direction to the applicant by mail of one copy of the application with the details (registration number and receipt date) which are put down by the expert organization

12. The registered documents of the request are checked for availability of the document confirming application payment. In the absence of such document and the document confirming availability of the bases for reduction of its size in case of payment in the amount of, smaller established the applicant within five working days from the date of registration of the request is notified on need of the representation which is absent (absent) the document(s) and (or) the document on surcharge to the established size which, (which) are represented within two months from receipt date of the request.

13. When patenting in foreign countries of selection achievement, (when the application is submitted to the expert organization) at the request of the applicant the expert organization makes the verified copy of the first request.

14. Within one month from the date of application and with results of check of correctness of the name of selection achievement the expert organization carries out on it preliminary expert examination. During conducting preliminary expert examination priority date of the request is established, availability of necessary documents and their compliance to the requirements established to them is checked.

Preliminary expert examination of the request is carried out in two-month time.

When conducting preliminary expert examination of the request it is checked:

availability of documents which shall contain in the request or is applied to it, and also their content;

observance of application process in cases, stipulated in Item 2 articles 5 of the Law, including availability and correctness of execution of the power of attorney certifying powers of the representative;

respect for legitimacy and procedure for purchase in the request of earlier priority, than date of its giving.

15. In case of purchase of conventional priority according to Item 2 of article 7 of the Law it is checked:

observance by the applicant of term for purchase of conventional priority (in case of application);

availability and adherence to deadline of submission of the verified copy of the first application submitted along with application or within three months from the date of application to the expert organization and its translation on state or Russian.

In case of accomplishment of these conditions additional documentation and material, necessary for testing, within three years from the date of submission of the first request is not requested.

In case of failure to carry out at least of one condition, the priority of grade, breed is established by date of application in the expert organization.

16. The additional documents which arrived to the request and containing signs which were not given in source documents of the request and changing essence of the declared grade, breeds are not taken into account by consideration of the request what the applicant is notified during conducting preliminary expert examination on.

17. If in the course of preliminary expert examination of the request it is determined that the name of selection achievement does not conform to the established requirements of the Law and (or) the request is drawn up with violation of requirements to its documents, to the applicant the inquiry with indication of the found shortcomings and the offer to provide the new name of selection achievement and (or) the absent or corrected documents within two months from the date of its direction is sent.

18. Check of correctness of the offered name of selection achievement are made by State commission. The conclusion of State commissions about results of verification of the name is transferred to the expert organization.

19. In case of non-presentation of reply to the request of preliminary expert examination in two-month time, the expert organization makes the decision on refusal in further review of the request what the applicant is notified from the date of decision making in a month on.

20. If as a result of preliminary expert examination it is determined that the request conforms to the established requirements, the expert organization makes the decision on further review of the request and notifies the applicant within five working days from the moment of decision on positive result of preliminary expert examination.

21. State commissions, according to Rules of carrying out sortoispytaniye of the agricultural plants approved by the order of the Minister of Agriculture of the Republic of Kazakhstan of July 2, 2015 No. 4-2/602 (registered in the Register of state registration of regulatory legal acts at No. 11879) and the Technique of carrying out testing and approbations of the selection achievements in the field of livestock production approved by the order of the Minister of Agriculture of the Republic of Kazakhstan of October 21, 2014 No. 3-3/539 (registered in the Register of state registration of regulatory legal acts at No. 9901) constitute the conclusion with the description of grade, breed and send to the expert organization.

22. In case of the positive conclusion of State commission, the expert organization according to item 4 of article 10 of the Law within ten working days makes the decision on patent grant and within ten working days notifies the applicant on the made decision.

23. In case of the negative conclusion of State commission, the expert organization according to Item 5 of article 10 of the Law, within ten working days, makes the decision on patent refusal what the applicant is notified within ten working days on.

Chapter 5. Publication of data on the request

24. The publication of data on the request according to which as a result of preliminary expert examination the decision on further review is passed is made in the bulletin within a month from decision date according to Item 6 of article 8 of the Law.

25. In case of the publication of data on the request the expert organization publishes the following data in the state and Russian languages:

1) number and date of application;

2) number, date of giving and country code of application according to the standard based on which the priority of selection achievement is established if according to the request earlier priority date, than date of application in the expert organization is established;

3) name of the author (authors) if the last (last) did not refuse (did not refuse) to be mentioned (mentioned) as that (those);

4) name or name of the applicant;

5) code (codes) of the country of the residence of the author (authors) and the residence (location) of the applicant according to the standard (ST. 3 VOIS);

6) name of selection achievement;

The refusal of the author to be mentioned in quality of that in the published data is considered in case of the publication of these data if it arrived before completion of technical training to the publication. The specified refusal can be withdrawn by the author in the same time.

Chapter 6. Single questions on conducting examination of requests for selection achievements

26. It is corresponded by the applicant or his representative, according to each request separately.

The documents submitted with registration shortcomings impossible to reading, are not considered.

To person who filed documents with registration shortcomings, impossible to reading the adequate notice within five working days from receipt date of these documents goes.

The originals of materials transferred by means of fax connection (further - the fax), are represented within one month from the date of their receipt together with the cover letter identifying the materials which arrived earlier. Receipt date of materials their receipt date by fax is considered.

If originals of materials arrived after monthly term or the materials which arrived by fax are not identical to the provided originals, materials are considered arrived on receipt date of originals, and content of the materials which arrived by fax further are not taken into account. Before submission of originals the materials faxed are considered as not arrived. If any materials which arrived by fax or their part are not read or not received, the corresponding materials are considered arrived on receipt date of originals. Materials are considered arrived on the date of receipt of the fax in case of withdrawal by the applicant of unreadable part.

27. According to Item 1 of article 8 of the Law the applicant has the right to bring in documents of the request of correction and refining without change of essence of selection achievement before acceptance according to this request of the relevant decision.

28. Change of list of authors is understood as inclusion in structure or exception of the list of the author. Change is performed as follows:

1) changes in the list of authors are made by giving to the expert organization of the new statement;

2) along with the new statement the petition for entering of corresponding changes into the list of authors constituted in any form with indication of number and date of application and signed by the applicant and in case of exception of the list of authors, the excludable author moves;

3) in case of absence in the petition of the signature of the excludable author, the consent of the excludable author is accepted in the form of the separate letter with indication of number and receipt date of the request;

4) if in case of inclusion in the list of authors of new person it is impossible to receive the signature of earlier specified author to date of submission of the new statement, then the written consent which is drawn up in the following procedure is attached to the petition:

in case of the death of the author or the announcement his dead consent to modification from his name is signed by the heir, having provided the notarized copy of the certificate on the right to inheritance;

in case of departure of the author abroad consent to modification from his name signs the authorized representative, having provided the warrant in the name of of the patent agent certifying it is right;

in case of lack of data on the place of stay of the author and impossibility to receive them, is recognized court it is unknown absent according to Article 28 of the Civil code of the Republic of Kazakhstan, and the concerned party represents the copy of the judgment about recognition of the author is unknown absent which is taken into account in case of the solution of matter of substance;

in case of recognition of the author by incapacitated or consent to modification from his name is limited capable the guardian or the custodian, with submission of the copy of the judgment about establishment of guardianship or custody signs.

In case of violation of procedure for submission of the documents specified in this Item, the new statement is considered not given and modification is not made what the applicant is notified within five working days by results of consideration by the expert organization of question of modification on.

29. Change of list of applicants is understood as partial change of list of applicants by inclusion of additional person in structure or exception of person of the list of the applicants who are earlier specified in the statement:

1) changes in the list of applicants are made by giving to the expert organization of the new statement;

2) along with the new statement the petition for entering of corresponding changes into the list of applicants in any form with indication of number and registration date of the request moves. The petition shall be signed by the applicant (applicants) specified (specified) in the initial application for the grant of a patent;

3) when replacing of the died applicant specified in the statement, the legitimate heir under the petition the signature only of the specified heir is sufficient, having provided the notarized copy of the certificate on the right to inheritance;

4) in case of modification of the list of applicants owing to reorganization of the legal entity, the petition and the new application is signed by his legal successor with submission of the document confirming legal succession by this type of the rights (the statement from the separation balance sheet or the transfer act);

5) in case of modification owing to liquidation of the legal entity the petition and the new application is signed by person to whom passed the appropriate rights with submission of the document confirming the fact of assignment of rights;

6) the citizens living outside the Republic of Kazakhstan and foreign legal entities submit documents for modification of the list of applicants through patent agents of the Republic of Kazakhstan, at the same time the power of attorney issued addressed to the patent agent contains the order on accomplishment of the specified actions.

In case of violation of procedure for submission of the documents specified in this Item, the new statement is considered not given and modification is not made what the applicant is notified within five working days by results of consideration by the expert organization of question of modification on.

Appendix 1

to Rules of conducting examination of requests for selection achievements

Form

Receipt date	(21) registration No.	(22) Date of giving	Priority
Petition The Republic of Kazakhstan on selection achievement (livestock production)
Providing the documents provided below, I ask (we ask) to grant the patent of the Republic of Kazakhstan for selection achievement addressed to the applicant (applicants) (71) Applicant (and): (The complete name or the name and residence or the location is entered. Data on residence of authors-applicants are provided in the graph with code 97)			Country code according to the standard 3 of World Intellectual Property Organization (further - VOIS) (if it is established)
Sort, type _____________________________________________________________________                                  (the name on state or Russian) ____________________________________________________________________________                                                     (Latin name)
The offered name
Selection achievement is removed in the country(countries) ____________________________________ Whether the grade (breed) to sale was offered or was on sale: In the country of application: - no - yes for the first time ____ under the name ____________________                                                                                                                             (date) In other countries: - no - yes for the first time ___________________________________________                                                                                               (country, date) under the name _________________________________________________________________
The address for correspondence (the complete postal address and name of the addressee) Phone: Mobile phone Fax: (74) the Patent agent (registration number) or the applicant(s) representative (surname, name, middle name (in case of its availability) or the name)
The list of the enclosed documents	The number of sheets in 1 copy	Number of sheets	The basis for emergence of the right to application and receipt of the patent (without submission of the document): the applicant is employer and conditions of Item 1 of article 5 of the Law are complied the assignment is right the employer or his legal successor the assignment is right the author or his legal successor inheritance right
appendix to the statement
questionnaire of selection achievement
photos
negatives or color slides
information on earlier made sale
document on application payment
the document confirming availability of the bases for reduction of the amount of payment
the copy of the first request (in case of purchase of conventional priority)
the translation of the request on state or Russian
the power of attorney certifying powers of the patent agent or the representative
(specify) other document
(72) Author(s) (surname, the name, middle name are entered, (in case of its availability)	(97) the Complete postal address of residence, including the name of the country and its code according to the standard 3 VOIS if it is established		The signature (and) the author(s) – the applicant(s) and/or the author(s) who assigned the right to the patent, date
I (we) _______________________________________________________________________________ I ask (we ask) not to mention me (us) as author(s) in case of the publication of materials of the request Signature (and) author(s)
I (we) declare (I eat) that according to the data which are available for me (us) information necessary for consideration of the request and brought in this statement and in appendices, is final and correct. I (we) confirm (I eat) that samples are received properly and represent representative selection of selection achievement. He agrees (agree) to use of the data which are the secret protected by the law containing in information systems
Signature The signature (and) the applicant(s) or the patent agent, signature date (when signing on behalf of the legal entity the signature of the head is sealed (in case of its availability).

 

Appendix 2

to Rules of conducting examination of requests for selection achievements

Receipt date	(21) registration No.			(22) Date of giving	Priority
Petition The Republic of Kazakhstan on selection achievement (crop production)
Providing the documents provided below, I ask (we ask) to grant the patent of the Republic of Kazakhstan for selection achievement addressed to the applicant (applicants) (71) Applicant (and): (The complete name or the name and residence or the location is entered. Data on residence of authors-applicants are provided in the graph with code 97)					Country code according to the standard 3 of World Intellectual Property Organization (further – VOIS) (if it is established)
It is filled only in case of priority purchase by date earlier, than receipt date of the request in the Republican state company "National Institute of Intellectual Property" I ask (we ask) to establish priority of selection achievement by date: submissions of the first request in the member country of the International convention (Item 2 of article 7 of the Law "About Protection of Selection Achievements" (further – the Law) receipts of the request for the admission to use in state commission (Item 2 of article 4 of the Law)
No. of the first request or the request for the admission to use	Date of the asked priority		Country code of giving (ST.3 VOIS)	Stage of consideration of the request	Under what name selection achievement is registered
I (we) declare (I eat) that the material transferred with the first request represents this grade (breed) and corresponds to this request. Sort, type ____________________________________________________________________                             (the name on state or Russian) ____________________________________________________________________________                                                   (Latin name)
The offered name					Selection number
Selection achievement is removed in the country(countries) ____________________________________ Whether the grade (breed) to sale was offered or was on sale: In the country of application: - no - yes for the first time ____ under the name _____________________                                                                                                                              (date) In other countries: - no - yes for the first time ____________________________________________                                                                                                 (country, date) under the name __________________________________________________________________
The address for correspondence (the complete postal address and name of the addressee) Phone: Mobile phone: Fax: (74) the Patent agent (registration number) or the applicant(s) representative (surname, name, middle name (in case of it) or the name)

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