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MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 03/2021/TT-BNNPTNT
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Hanoi, June 22, 2021
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CIRCULAR
AMENDMENTS TO SOME ARTICLES OF
CIRCULAR NO. 16/2013/TT-BNNPTNT DATED FEBRUARY 28, 2013 OF THE MINISTER OF
AGRICULTURE AND RURAL DEVELOPMENT ON PROTECTION OF PLANT VARIETY RIGHTS
Pursuant
to the Government’s Decree No. 15/2017/ND-CP dated February 17, 2017 defining
the functions, tasks, powers and organizational structure of the Ministry of
Agriculture and Rural Development;
Pursuant
to the Law on Intellectual Property dated November 29, 2005; Law on Amendments
to the Law on Intellectual Property dated June 19, 2009;
Pursuant
to the Law on Crop Production dated November 19, 2018;
Pursuant
to the Government’s Decree No. 88/2010/ND-CP dated August 16, 2010 on
elaboration of some Articles of the Law on Intellectual Property and Law on
Amendments to some Articles of the Law on Intellectual Property regarding plant
variety rights and the Government’s Decree No. 98/2011/ND-CP dated October 26,
2011 on amendments to some Articles of Decrees on agriculture;
Pursuant
to the Government’s Decree No. 105/2006/ND-CP dated September 22, 2006 on
elaboration of some Articles of the Law on Intellectual Property on protection
of intellectual property rights and state management of intellectual property
and Government’s Decree No. 119/2010/ND-CP dated December 30, 2010 on
amendments to some Articles of the Decree No. 105/2006/ND-CP;
Pursuant
to the Government’s Decree No. 94/2019/ND-CP dated December 13, 2019 on
guidelines for some Articles of the Law on Crop Production regarding plant
varieties and crop cultivation;
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The
Minister of Agriculture and Rural Development hereby promulgates a Circular on
amendments to some Articles of the Circular No. 16/TT-BNNPTNT dated February
28, 2013 of the Minister of Agriculture and Rural Development on protection of
plant variety rights.
Article 1. Amendments to some Articles of the Circular No.
16/TT-BNNPTNT dated February 28, 2013 of the Minister of Agriculture and Rural
Development on protection of plant variety rights (hereinafter referred to as
“the Circular No. 16/2013/TT-BNNPTNT”):
1.
Article 1 is amended as follows:
“Article
1. Scope
This
Circular elaborates on the establishment of plant variety rights and
representation for plant variety rights; issuance and re-issuance of plant
variety protection certificates; suspension, reinstatement and invalidation of
plant variety protection certificates.”
2.
Clause 2 of Article 4 is amended as follows:
“2.
The legal representative of the applicant shall follow the procedures for
protection of plant varieties as prescribed by laws on authorization; the
letter of authorization is made according to the form in Annex 1 to this
Circular.”
3.
Article 5 is amended as follows:
“Article
5. General provisions on completion of administrative procedures specified in
this Decree
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a) If
documents are submitted in person or by post, the documents must be originals
or certified true copies or copies presented together with their originals for
comparison; if documents are promulgated by organizations, their copies must
bear the seals of such organizations;
b) If
documents are submitted online, the documents must be scanned or photocopied
from the originals. The documents must be declared and append digital
signatures to the given electronic forms as specified in Clauses 1 and 2
Article 9 of the Government’s Decree No. 45/2020/ND-CP dated April 08, 2020 on
administrative procedures by electronic means.
2.
Number of documents: 01 set.
3.
Time limit for notifying the adequacy of documents:
a) If
documents are submitted in person, the Department of Crop Production shall
inspect the documents and immediately notify their adequacy to the organization
or individual;
b) If
documents are submitted by post, within 03 working days from the receipt of the
documents, the Department of Crop Production shall consider their adequacy. If
the documents are inadequate as prescribed, it shall notify the
organization/individual in writing;
c) If
documents are submitted online, within 08 working hours from the receipt of the
documents, the Department of Crop Production shall consider their adequacy. If
the documents are inadequate as prescribed, it shall notify the
organization/individual;
4.
Methods for paying fees and charges for completing administrative procedures:
organizations and individuals shall pay fees and charges in accordance with
applicable regulations to the Department of Crop Production, whether in person
or by another appropriate mean.
5.
Methods for informing results: the Department of Crop Production shall inform
results directly at the document receipt area or by post or online.
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7. If
the documents are those specified in Clause 2 Article 174 of the Law on
Intellectual Property, they must be translated into Vietnamese language and
notarized or verified by the registrant.
8.
Organizations and individuals shall take legal responsibility for their
submitted documents.”
4.
Article 6 is amended as follows:
“Article
6. Well-known plant varieties and novelty of plant varieties
1. A
plant variety is considered well-known in one of the following cases:
a)
The plant variety of which the propagating material or harvested material is
widely used on the Vietnam’s market or in any other country when the
application for protection is submitted;
b) The
plant variety is protected or recognized for circulation or recognized for
privileged circulation, experimentally produced, officially recognized in
Vietnam or included in the List of plant varieties permitted for production and
trading in any other country;
c)
The plant variety is the object in the applications for: protection of plant
variety; recognition of circulation or recognition of privileged circulation;
inclusion in the list of varieties in any other country, if these applications
are not rejected.
2.
Novelty of plant varieties
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5.
Article 7 is amended as follows:
“Article
7. Templates for documents about protection of plant variety rights
1.
Registration of the contract for transfer of plant variety rights, which is
made according to the template in Annex II to this Circular.
2.
Request for mandatory transfer of the right to use plant varieties, which is
made according to the template in Annex III to this Circular.”
6.
Article 8 is amended as follows:
“Article
8. Fees and charges for the protection of plant variety rights
1.
Fees and charges for protection of plant variety rights shall comply with the
regulations set out in the Circular No. 207/2016/TT-BTC dated November 09, 2016
of the Minister of Finance (hereinafter referred to as “the Circular No.
207/2016/TT-BTC”).
2.
The time limit for paying the fee for validity extension shall comply with
Clause 2 Article 24 of the Government’s Decree No. 88/2010/ND-CP dated August
16, 2010 (hereinafter referred to as “the Circular No. 88/2010/ND-CP”).
3. If
the Circular No. 207/2016/TT-BTC is amended by or replaced with another
legislative document, the new one shall prevail.”
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“Article
9. Receipt of applications and transfer of the right to submit applications for
plant variety protection
1. An
application for protection of plant variety rights is composed of:
a) An
application form for plant variety protection, which is made according to the
template in Annex IV to this Circular;
b) A
declaration of the distinctness, uniformity and stability testing techniques
(DUS testing)
- If
the plant variety to be protected is of a type of plant for which the DUS
testing guidelines, National technical regulation (QCVN) or National Standard
(TCVN) on DUS testing of Vietnam/UPOV is available: the declaration mentioned
in these documents shall be used;
- If
the plant variety to be registered is not of a type of plant for which the DUS
testing guidelines, QCVN or TCVN on DUS testing of Vietnam/UPOV is available:
the declaration mentioned in Annex V to this Circular shall be used;
c) A
letter of authorization, which is made using the template in Annex I to this
Circular (if the application is submitted by a representative);
d)
Photos of the sample variety: at least 03 9cm x 15cm color photos which show 3
distinct characteristics of the variety to be protected;
dd)
Documents proving the right to register (contract for transfer of the right to
use the plant variety, document proving that the applicant is a legal
representative of the owner of the variety to be protected);
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g)
Documents evidencing payment of fees and charges.
2.
The date of receiving an application for plant variety protection is the date
on which an application containing all documents specified in Clause 1 of this
Article is received by the Department of Crop Production.
3.
The notice of acceptance of application for plant variety protection shall be
issued using the template in Annex VI to this Circular.
4.
Before the Department of Crop Production issues a decision to issue the plant
variety protection certificate or notice of refusal to issue the plant variety
protection certificate, the applicant is entitled to transfer the right to
submit the application for plant variety protection to another person. The
transferee shall submit a contract for transfer of the right to submit the
application for plant variety protection to the Department of Crop Production.”
8.
Article 10 is amended as follows:
“Article
10. Amendments to applications for plant variety protection
1.
Before issuing the plant variety protection certificate, the applicant is
entitled to amend the application for protection in any of the following cases:
a)
The amendment does not change the nature of the application: a spelling error
in the name or address of the applicant, owner or author of the plant variety
or name of the plant variety;
b) There
is a legal basis for change of the name or address of the applicant, owner or
author of the plant variety;
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2. An
application for amendment includes:
a) An
application form for amendment to the application, which is made according to the
template in Annex VII to this Circular;
b) A
certified true copy of the transfer contract (in the case of transfer of the
application for protection); or legal basis for change of the name or address
of the applicant, owner or author of the plant variety;
c) A
document proving the inheritance (certified by the variety owner), document
proving the moral rights between the variety owner and the inheritor; death
certificate or extract of death certificate of the variety owner (if any);
d) A
letter of authorization, which is made using the template in Annex I to this
Circular in the case of change of the representative.
3.
Procedures and time for processing the application:
Within
15 working days from the receipt of a sufficient application, the Department of
Crop Production shall appraise it. If the application is valid, the Department
of Crop Production shall send a notice of acceptance of the application, return
the result to the applicant and publish it on its web portal. If the
application is invalid, the Department of Crop Production shall provide a
written explanation to the applicant.
4. If
any request for amendment to the application for plant variety protection is
made in a case other than the case specified in Clause 1 of this Article,
another application for plant variety protection shall be submitted.
9.
Article 16 is amended as follows:
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1. In
addition to the documents specified in Article 174 of the Law on Intellectual
Property, the applicant that applies for DUS self-testing on their variety to
be protected shall submit the following documents:
a) A
detailed list of conditions for self-testing, which is made according the
template in Annex VIII to this Circular and in conformity with the specific
requirements laid down in the DUS testing guidelines, QCVN or TCVN on DUS
testing of Vietnam/UPOV applicable to each type of plant;
b) A
DUS testing plan, which is formulated according to the template in Annex IX to
this Circular.
2.
The Department of Crop Production shall consider the application for DUS
self-testing. The applicant shall contact the DUS testing organization
recognized for cooperation in DUS testing inspection and assessment. For the
plant for which a DUS testing organization recognized for cooperation in
testing is not available, the Department of Crop Production shall establish an
expert team in charge of inspection during the testing. The expert team is
composed of members of the Plant Variety Protection Office, experts of the
recognized DUS testing organization and experts in such plant.
3. If
the plant for which the DUS testing guidelines, QCVN or TCVN on DUS testing of
Vietnam/UPOV is not available, the DUS testing guidelines promulgated by the
Department of Crop Production shall apply.
4.
On-the-spot inspection:
a)
For the plant for which a DUS testing organization recognized for cooperation
in testing is not available, the expert team shall assess DUS tests at least
once at an appropriate time according to the DUS testing guidelines, QCVN or TCVN
on DUS testing of Vietnam/UPOV or DUS testing guidelines promulgated by the
Department of Crop Production shall.
b)
Contents of the inspection: satisfaction of conditions for self-testing;
conduct of tests; examination of the variety for distinctness against its most
similar variety; uniformity and stability.
c) An
on-the-spot inspection record, which is made using the template in the Annex X
to this Circular and included in the application for plant variety protection.
The Department of Crop Production shall rely on the inspection record to
appraise the report on DUS testing conducted by the applicant.
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10.
Article 17 is amended as follows:
“Article
17. Deadline for submitting plant variety samples, management and use of plant
variety samples
1.
For a plant variety that is tested as prescribed in Point a Clause 1 Article 15
of the Decree No. 88/2010/ND-CP: If the application for plant variety
protection is accepted, the applicant shall submit the variety sample for DUS
testing and retained for submission to the recognized testing organization at
least 20 days before the growing season.
2.
For plant varieties that are tested as prescribed in Points a, b and d Clause 1
Article 15 of the Decree No. 88/2010/ND-CP and vegetatively propagated plant
varieties: their owners shall retain samples themselves.
3.
Quantity and quality of plant variety samples submitted for testing and sample
retention shall comply with the DUS testing guidelines, QCVN and TCVN on DUS
testing of Vietnam/UPOV applicable to such plants.
4. Owners
of plant varieties shall submit samples of protected varieties at the competent
authority’s request during the effective period of the certificate of
protection of such plant variety. Variety samples shall ensure quality as
prescribed in Clause 3 of this Article and the level of variation in the
expression of characteristics shall be consistent with that in the variety
description at the time of applying for protection.
5.
Variety samples shall be retained for 25 years for varieties of woody plants and
vines; 20 years for other plant varieties from the date of issue of the plant
variety protection certificate.
6. If
a retention sample is used for a purpose other than the purpose of DUS testing,
testing or post-testing in order to determine the distinctness of the variety
or resolve a dispute or file a lawsuit, it is required to obtain a written
consent from the plant variety owner.”
11.
Article 19 is amended as follows:
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1. Issuance
of a plant variety protection certificate
a)
Composition of the application: A DUS testing report which is prepared using
the template in Annex XI to this Circular.
b)
The issuance procedures are specified in Article 20 of the Decree No.
88/2010/ND-CP. The plant variety protection certificate is issued using the
template in Annex XII to this Circular.
2.
Re-issuance of the plant variety protection certificate
The
owner reserves the right to apply for re-issuance of the plant variety
protection certificate in the following cases: the certificate is lost, torn,
damaged or so faded that it cannot be used, the owner is changed or there is
any error in the name and address of the certificate holder.
a)
Composition of the application:
An
application form for re-issuance of the plant variety protection certificate,
which is made using the template in Annex XIII to this Circular;
A
legal document proving the change of name or address of the certificate holder
in the case of change of the owner or any error in the name and address of the
certificate holder;
An
original of the plant variety protection certificate (except where the
certificate is lost);
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b)
Procedures:
Within
15 working days from the receipt of a sufficient application, the Department of
Crop Production shall appraise it. If the application is valid, the Department
of Crop Production shall re-issue the plant variety protection certificate to
the applicant. If the application is invalid, the Department of Crop Production
shall provide a written explanation to the applicant.
c) If
a third person raises an objection to the issuance of the plant variety
protection certificate, the regulations laid down in Article 184 of the Law on
Intellectual Property shall be complied with.
d)
The plant variety protection certificate shall be re-issued 30 days after the
date of publishing the re-issuance on the Journal of Agriculture and Rural
Development. Number of the re-issued plant variety protection certificate must
remain unchanged and the phrase "cấp lại” (“re-issued”) must be written in
the bottom left hand corner of the certificate.”
12.
Article 20 is amended as follows:
“Article
20. Suspension, reinstatement and invalidation of plant variety protection
certificates
1.
Procedures for suspending a plant variety protection certificate that no longer
satisfies the conditions concerning distinctness and stability as it did at the
time of issuing the certificate are specified in Article 21 of the Decree No.
88/2010/ND-CP. The regulations set out in Article 170 of the Law on
Intellectual Property shall apply to other cases in which the plant variety
protection certificate is suspended.
2.
Reinstatement of the plant variety protection certificate
a)
The certificate holder is entitled to eliminate the cause for suspension as
prescribed in Clause 5 Article 170 of the Law on Intellectual Property.
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b)
Within 15 working days from the receipt of a sufficient application, the
Department of Crop Production shall appraise it. If the application is valid,
the Department of Crop Production shall issue a decision on reinstatement of
the plant variety protection certificate and return the result to the
applicant. The decision on reinstatement of the plant variety protection
certificate shall be published on the Journal of Agriculture and Rural
Development. If the application is invalid, the Department of Crop Production
shall provide a written explanation to the applicant.
3.
Invalidation of the plant variety protection certificate
When
it is determined that there are sufficient legal bases for objection raised by
the third party to one of the cases specified in Clause 1 of the Law on
Intellectual Property, the competent authority shall issue a decision on
invalidation of the plant variety protection certificate and published it on
the Journal of Agriculture and Rural Development.”
13.
Annex 1; Annex 3; Annex 4; Annex 5; Annex 6; Annex 7; Annex 11; Annex 12; Annex
9; Annex 13; Annex 14; Annexes 15 and 16 are replaced with Annex I; Annex II;
Annex III; Annex IV; Annex VI; Annex VII; Annex VIII; Annex IX; Annex X; Annex
XI; Annex XII; Annex III respectively.
Article 2. Annulment of some regulations of the Circular
No. 16/2013/TT-BNNPTNT
Articles
11, 12, 13, 14, 15, 21, 22, 27, 28 and 29 and Annexes 2, 10 and 17 are
annulled.
Article 3. Effect
1.
This Circular comes into force from August 06, 2021.
2.
The Circular No. 41/2009/TT-BNNPTNT dated July 9, 2009 of the Ministry of
Agriculture and Rural Development shall cease to have effect from the effective
date of this Circular.
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a)
Applications for plant variety protection submitted prior to the effective date
of this Circular shall be processed in accordance with the Circular No.
16/2013/TT-BNNPTNT and relevant effective legal documents; procedures for
amendment to applications; amendment and re-issuance of plant variety
protection certificates shall comply with this Circular.
b) Applications
for transfer of applications for plant variety protection; applications for
suspension, reinstatement and invalidation of plant variety protection
certificates; documentation serving handling of third persons’ objections
submitted prior to the effective date of this Circular shall be processed in
accordance with the Circular No. 16/2013/TT-BNNPTNT and relevant effective
legal documents.
4.
The Director General of the Department of Crop Production, Chief of the
Ministry Office, heads of units affiliated to the Ministry, organizations and
individuals concerned are responsible for the implementation of this Circular.
5.
Difficulties that arise during the implementation of this Circular should be
promptly reported to the Ministry of Agriculture and Rural Development for
consideration and resolution./.
PP. THE MINISTER
THE DEPUTY MINISTER
Le Quoc Doanh