(65)In accordance with Directive 98/44/EC, the holder of the patent is to be entitled to prohibit the use of patented self-reproducing material in situations analogous to those where it would be permitted to prohibit the use of patented, non-self-reproducing products. However, situations where the unintentional or accidental presence of patented biological material of NGT plants occurs during agricultural activity by farmers, as a result of natural self-replication through cross-pollination, are not comparable to the situations that could arise for non-self-reproducing products. This is one of the relevant factors when determining whether a patent on an NGT plant has been infringed in such situations. Even if it is concluded that a patent infringement has occurred, Directive 2004/48/EC of the European Parliament and of the Councilnote lays down the framework for the enforcement of intellectual property rights and requires, inter alia, that measures, procedures and remedies provided by Member States be proportionate and applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. That requirement is to apply when determining the appropriate enforcement measures, procedures and remedies in such situations.
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