1556
PUBLIC LAW 91-577-DEC. 24, 1970
[84 STAT.
Chapter 12.—REMEDIES FOR INFRINGEMENT OF PLANT VARIETY PROTECTION, AND OTHER ACTIONS Sec. 121. Remedy for Infringement of Plant Variety Protection. An owner shall have remedy by civil action for infringement of his plant variety protection under section 111. If a variety is sold under the name of a variety shown in a certificate, there is a prima facie presumption that it is the same variety. Sec. 122. Presumption of Validity; Defenses. (a) Certificates of plant variety protection shall be presumed valid. The burden of establishing invalidity of a plant variety protection shall rest on the party asserting invalidity. (b) The following shall be defenses in any action charging infringement and shall be pleaded: (1) noninfringement, absence of liability for infringement, or unenforceability; (2) invalidity of the plant variety protection in suit on any ground specified in section 42 of this title as a condition for protectability; (3) mvalidity of the plant variety protection in suit for failure to comply with any requirement of section 52; (4) that the asserted infringement was performed under an existing certificate adverse to that asserted and'prior to notice of the infringement; and (5) any other fact or act made a defense by this Act. Sec. 123. Injunction. The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right hereunder on such terms as the court deems reasonable. Sec. 124. Damages. (a) Upon finding an infringement the court shall award damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the variety by the infringer, together with interest and costs as fixed by the court. (b) When the damages are not determined by the jury, the court shall determine them. I n either event the court may increase the damages up to three times the amount determined. (c) The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances. (d) As to infringement prior to, or resulting from a planting prior to, issuance of a certificate for the infringed variety, a court finding the infringer to have established innocent intentions, shall have discretion as to awarding damages. Sec. 125. Attorney Fees. The court in exceptional cases may award reasonable attorney fees to the prevailing party. Sec. 126. Time Limitation on Damages. (a) No recovery shall be had for that part of any infringement committed more than six years (or known to the owner more than one year) prior to the filing of the complaint or counterclaim for infringement in the action. (b) In the case of claims against the United States Government for unauthorized use of a protected variety, the period between the date of receipt of written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referreH to in the preceding paragraph.
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