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THE MINISTRY
OF AGRICULTURE AND RURAL DEVELOPMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
16/2013/TT-BNNPTNT
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Hanoi,
February 28th 2013
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CIRCULAR
ON THE PROTECTION OF PLANT VARIETY RIGHTS
Pursuant to the Government's Decree No.
01/2008/ND-CP dated January 03rd 2008, defining the functions,
tasks, powers and organizational structure of the Ministry of Agriculture and
Rural development; the Government's Decree No. 75/2009/ND-CP dated September 10th
2009, amending Article 3 of the Decree No. 01/2008/ND-CP;
Pursuant to the Law on Intellectual property
No. 50/2005/QH11 dated November 29th 2005; the Law No. 36/2009/QH12
on the revision of the Law on Intellectual property dated June 19th
2009;
Pursuant to the Government's Decree No.
88/2010/ND-CP dated August 16th 2010, elaborating and guiding the
implementation of the Law on Intellectual property, the Law on the revision of
the Law on Intellectual property applicable to the plant variety rights, and
the Government's Decree No. 98/2011/ND-CP dated October 26th 2011,
revising the Decrees on agriculture;
Pursuant to the Government's Decree No.
105/2006/ND-CP dated September 22nd 2006, elaborating and guiding
the implementation of the Law on Intellectual property applicable to
intellectual property rights and the State management of intellectual property,
and the Government's Decree No. 119/2010/ND-CP dated December 30th
2010 of the Government, revising the Decree No. 105/2006/ND-CP;
At the request of the Director of the
Department of Crop production;
The Minister of Agriculture and Rural
development issues this Circular to guide the protection of plant variety
rights.
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GENERAL REGULATIONS
Article 1. Scope of
regulation
This Circular guides the implementation of some
regulations on the establishment of plant variety rights, the representation
for plant variety rights, and the templates of documents about the protection
of plant varieties.
Article 2. Subjects of
application
This Circular is applicable to:
1. Vietnamese organizations and individuals;
2. Foreign organizations and individuals being
the subjects prescribed in Clause 18 Article 1 of the Law on the revision of
the Law on Intellectual property.
Article 3. Interpretation of
terms
In this Circular, the terms below are construed
as follows:
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2. Detection and development of plant varieties:
a) Detection is the selection of natural
variations existing in a population of a plant variety, or to find new genetic
resources in nature;
b) Development is the process of propagation and
assessment to select the variations or genetic resources that suit the
production demand.
Article 4. Lawful
representatives and authorized representatives of applicants
1. The lawful representative of an applicant
prescribed in Clause 2 Article 3 of the Decree No. 88/2010/ND-CP is:
a) The legal representative or authorized
representative of the applicant, or an organization that represents the plant
variety rights under the authorization of the applicant, if the applicant is a
Vietnamese organization or individual;
b) The manager of the representative office or
branch in Vietnam, or the organization that represents the plant variety rights
under the authorization of the applicant, if the applicant is a foreign
organization or individual that has an office or permanent residence in
Vietnam, or has premises that produce and trade plant varieties in Vietnam;
c) The organization that represents the plant
variety rights under the authorization of the applicant, if the applicant is a
foreign organization or individual that does not has an office or permanent
residence in Vietnam, or nor has premises that produce and trade plant
varieties in Vietnam.
2. The legal representative of the applicant
shall follow the procedure for the protection of plant varieties as prescribed
by laws on authorization; the letter of authorization is made according to the
form in Annex 1 of this Circular.
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1. From the day on which the application for
protection is posted on the website of the New Plant Variety Protection Office
or the Agriculture and Rural Development Magazine to the date on which the
decision to grant the patent, any third party may send its objection to the
Department of Crop production against the right to register, the priority, the
protection conditions, and other issues related to the acceptance of the
application for protection of plant varieties.
2. The objection from the third party shall be
made in accordance with the template in Annex 2 of this Circular, enclosed with
the explanation for the objection and the evidence (if any), and sent to
Department of Crop production.
3. Order and deadline for settlement:
a) Within 30 working days from the day on which
the objection from the third party is received, Department of Crop production
shall send a notice to the applicant for the protection;
b) The applicant shall send a written response
to Department of Crop production within 30 working days from the signing date
of the notice made by the Department of Crop production.
c) Within 15 working days from the day on which
the response from the applicants is received, the Department of Crop may hold a
discussion between the applicant and the third party, or send the forward the
response to the third party;
d) The third party shall send a written response
to Department of Crop production within 30 working days from the signing date
Department of Crop production;
dd) If there are grounds for concluding that the
opinion from the third party is not reasonable, within 15 working days from the
day on which the response from the third party is received, the Department of
Crop production must send a rejection to the third party, with an explanation;
e) If there are no grounds for concluding that
the opinion from the third party is not reasonable, within 30 working days from
the day on which the response from the third party is received, the Department
of Crop production shall recommend the third party to request the Court to
solve the case according to civil proceedings. Within 30 working days from
the date of issue of the notice, if the Department of Crop production
does not receive any written response from the third party about the submission
of the petition to the court, it is considered to withdraw the objection. When
receiving the response from the third party, the Department of Crop production
shall delay handling the application for protection and wait for the judgment
from the Court. After receiving the judgment from the Court, the application
shall be handled accordingly, and the third party shall receive a notice within
15 working days.
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1. A plant variety of the same kind with the
variety that applies for protection is considered well-known in one of the
following cases:
a) The plant varieties of which the propagating
material harvested material are commonly used on Vietnam’s market or in any
other country when the application for protection is submitted;
b) The plant variety is protected,
experimentally propagated or officially certified, or in the List of Plant
varieties permitted to be propagated and traded in Vietnam or in any other
country;
c) The plant variety is the object in the
application for the protection of new plant varieties, or the application for
testing, or the application for the accreditation of new plant variety in
Vietnam or in any other country, if these applications are not rejected.
2. b) A plant variety is considered no longer
novel and ineligible for protection after 12 months from the day on which its
name is added in the List of plant varieties permitted to be propagated and
traded in Vietnam.
Article 7. The templates,
methods of reception, places of reception, submission date, and the dossier of
plant variety right protection
1. The templates of documents about the
protection of plant variety rights:
a) The registration of the contract to transfer
plant variety rights, according to the template in Annex 3 of this Circular;
b) The request for mandatory transfer of the
right to use plant varieties, according to the template in Annex 4 of this
Circular;
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d) Other templates from Article 4 to Article 35
of this Circular.
2. The New Plant Variety Protection Office shall
receive applications and documents about protection of plant varieties in one
of the following ways:
a) Direct reception;
b) Reception by post.
3. The results shall be given at the New Plant
Variety Protection Office - Department of Crop production, at 02 Ngoc Ha – Ba
Dinh – Ha Noi. Phone number: (04) 38435182, fax: (04) 37342844, email:
[email protected], website: pvpo.mard.gov.vn.
4. The submission date is the date on which the
application is received by the New Plant Variety Protection Office as
prescribed in Clause 2 Article 175 of the Law on Intellectual property,
Article 8. Fees for the
protection of plant variety rights
a) The fees related to the protection of plant
variety rights are specified in the Circular No. 180/2011/TT- BTC dated December
14th 2011 of the Ministry of Finance, on the rates, the collection,
payment, management, and use of fees in crop production and forestry varieties;
b) The participants in the training courses in
representation for plant variety rights or examination of plant variety rights
must pay the tuition themselves.
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THE ESTABLISHMENT OF
PLANT VARIETY RIGHTS
Article 9. The reception of
applications for protection, the authority to issue and transfer patents
1. Documents in the application for protection
The documents in the application for protection
prescribed in Article 174 of the Law on Intellectual property and Article 8 of
the Decree No. 88/2010/ND-CP include:
a) The written application for protection of
plant varieties according to the template in Annex 5 of this Circular;
b) The declaration of the distinctness,
uniformity and stability testing techniques (DUS testing) according to the
templates in the regulation on DUS testing of each kind of plant;
c) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production;
d) The letter of authorization according to
Annex 1 of this Circular (if the application is submitted by the
representative);
dd) At least 3 pictures of the variety that
demonstrates its 3 distinct characteristics, size 9 cm x 15 cm;
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3. The Director of the Department of Crop
production shall decide the issuance of the patent and the Certificate of
Registration of contract to transfer plant variety rights when the patent is
transferred.
Article 10. Amending the
application
1. Before the Department of Crop production
rejects or accepts application, decides to issue or not to issue the patent,
the applicant may request the Department of Crop production, or the Department
of Crop Production may request the applicant to correct the grammatical errors
of the name and address of the applicant, the breeder, the variety name, or
change the name of the plant variety; amend and supplement the documents in the
application, but must not change the nature of it. Where the applicant changes
the nature of the application (changing the owner, the breeder, the variety),
the application must be made from the beginning as prescribed.
2. The applicant that requests the amendment of
the application must submit a dossier to Department of Crop production. The
dossier comprises:
a) The written request for the amendment of the
application according to the template in Annex 7 of this Circular;
b) The copies (authenticated or enclosed with
the original for comparison) of: the Decision on changing the name, address, or
the Certificate of business registration which shows the change of the name and
address, or other legal documents proving the change of the name and address of
the applicant, the breeder (when correcting the errors in names and addresses
of the applicant and the breeder);
c) The written explanation for the change of the
variety name (when changing the variety name);
d) The amended documents, enclosed with the
detailed description of the amendments to the submitted documents (when amending
the documents in the application);
dd) The letter of authorization according to
Annex 1 of this Circular (when replacing the representative);
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3. Order and deadline for settlement:
a) Within 05 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 30 working days from the day on which
the Department of Crop production receives the complete and valid dossier, the
Director of the Department of Crop production shall sign the Notice of
acceptance of the amendments, and post it on the website of the New Plant
Variety Protection Office or on the Agriculture and Rural Development Magazine
within 05 working days from the day on which the Notice is signed. The
refusal must be notified and explained in writing.
Article 11. Delegating the
submission of the application for protection
1. If the owner of a plant variety has not
applied for the protection after transferring his ownership to another
organization or individual as prescribed by law, the transferee may apply for
the protection as prescribed.
2. The application shall be enclosed with the
documents specified in Clause 1 Article 9 of this Circular, together with the
document proving the right to submit the application, being the contract to
transfer the ownership of that variety (the original or authenticated copy) in
Vietnamese or translated into Vietnamese. Each page must be countersigned by
both parties, or bear a seal.
Article 12. Transferring
the application
1. Before the Department of Crop production
rejects or accept the application, decides to issue or not to issue the patent,
the applicant may transfer the application for the protection of plant
varieties to another person. The transferee shall become the applicant. The
transfer of the application for protection shall be made into a contract as
prescribed in Clause 2 Article 25 of the Decree No. 88/2010/ND-CP.
2. The transferor shall submit 01 dossier to
traditional markets. The dossier comprises:
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b) The contract (the original or authenticated
copy) in Vietnamese or translated into Vietnamese; each page must be
countersigned by both parties or bear the seal;
c) The written agreement from the owners, in
case the plant variety is under a co-ownership;
d) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
dd) Where the plant variety is created from the
State budget, the documents proving the transfer must be included as prescribed
in Clause 1 Article 27 of the Decree No. 88/2010/ND-CP.
3. Order and deadline for settlement:
a) Within 05 working days from the day on which
the dossier is received, the Department of Crop production shall check the
adequacy of the dossier. If the dossier is not adequate, the Department of Crop
production shall issue a notice of errors, and the applicant must correct it
within 30 days from the day on which the notice is sign, and send a response.
If the applicant fails to correct the dossier after the deadline above, the
Department of Crop production shall issue the Notice of rejection of the
dossier, and provide the explanation.
b) Within 30 working days from the day on which
the Department of Crop production receives the complete and valid dossier, the
Director of the Department of Crop production shall sign the Notice of
acceptance of transfer, and post it on the website of the New Plant Variety Protection
Office or on the Agriculture and Rural Development Magazine within 05 working
days from the day on which the Notice is signed.
Article 13. Appointment of
DUS testers and inspection of activities of appointed DUS testers
1. The organizations and individuals that
satisfy the conditions in Clause 1 Article 1 of the Decree No. 98/2011/ND-CP,
and satisfy the requirements in the regulations on DUS testing of each kind of
plant shall send 01 dossier to Department of Crop production in order to be appointed
to conduct DUS tests. The dossier comprises:
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b) The Decision on establishment or the
Certificate of Business registration or the investment license of the
organization; the copy of ID card or passport of the individual (authenticated
or enclosed with the original for comparison).
2. Order and deadline for settlement:
a) Within 05 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 30 working days from the day on which
the Department of Crop production receives the complete and valid dossier, the
Director of the Department of Crop production shall establish an Commission to
assess the conditions for DUS testing on the spot;
c) Within 10 working days from the day on which
the Department of Crop production receives the assessment record from the
Commission and the rectification report from the applicant, the Director of the
Department of Crop production shall sign a decision to appoint the organization
or individual to conduct DUS tests, and post it on the website of the New Plant
Variety Protection Office within 05 working days from the day on which the
decision is signed. The refusal must be notified and explained in writing.
d) The decision shall expire after 10 years. 90
days before the expiration date of the decision, the organization or individual
wishing to be reappointed must submit an application according to the template
in Annex 8 of this Circular. Based on the application and the result of the
inspections during their operation, the Director of the Department of Crop
Production shall sign the decision to reappoint or not to reappoint the DUS
tester, and provide the explanation.
3. Inspecting the activities of appointed DUS
testers
a) Inspections shall be carried out at least
twice a year, not including irregular inspections;
b) The Director of the Department of Crop
Production shall establish a Inspectorate composed on 2 – 3 persons to carry
out on-the-sport inspection;
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d) Inspection contents: inspecting the
conformity of the DUS tester with the requirements; the conformity of the tests
with the regulations on DUS testing; the documents and result of the
inspection;
d) The tester must immediately correct the
mistakes (if any) and report the result to the Department of Crop production
before the deadline specified in the inspection record;
The Department of Crop production shall verify
the rectification according to the report submitted by the DUS tester, and
carry out the on-the-spot inspection where necessary.
4. The verification record and inspection record
according to the template in Annex 9; the report on the rectification according
to the template in Annex 10 of this Circular.
Article 14. Rights and
obligations of appointed DUS testers
1. Rights of appointed DUS testers
a) Run tests in accordance with contracts signed
with the organizations and individuals that have their plant varieties tested;
b) Collect testing fees as prescribed by the
State, or under the agreement with the organizations and individuals that have
their plant varieties tested where fees are not prescribed by the State;
c) Refuse to provide information about test
results to a third party, unless it is requested by competent State agencies.
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a) Satisfy the conditions prescribed in Article
16 of the Decree No. 88/2010/ND-CP;
b) Run tests in accordance with the regulation
on DUS testing prescribed Clause 3 Article 15 of the Decree No. 88/2010/ND-CP;
c) Run DUS tests within the appointed range. Do
not reject to run tests without legitimate reasons;
d) Formulate an order for testing applicable to
each subjects based on the regulation on testing, send it to Department of Crop
production and the applicants;
dd) Ensure the openness, transparency,
independence, objectivity, accuracy, and impartiality during the tests;
e) Send reports on to the test results to the
Department of Crop production according to the template in Annex 13 of this
Circular within 45 working days from the ending day of the test; report all
changes that affect the appointed capacity within 15 days from the occurrence
of such changes;
g) Refund the testing fees to applicants as
prescribed in Clause 4 and Clause 5 Article 15 of the Decree No. 88/2010/ND-CP;
h) Take responsibility before law for the test
results; facilitate the inspections carried out by competent State agencies.
Article 15. Warning,
suspending, restoring, and invalidating the Decision on appointment
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1. Issue a warning when the tester makes the
mistakes that do not affect the test result.
2. Suspend the decision on appointment when
there are rectifiable technical errors that do not lead to serious
consequences:
a) The errors in the inspection record are not
completely rectified;
b) The complaints about the test result due to
the unrectified mistakes made by the tester;
c) Do not make reports as prescribed in Point e
Clause 2 Article 14 of this Circular.
3. Restore the validity of the Decision on
appointment when mistakes errors are rectified.
4. Annul the Decision on appointment when the
tester makes serious mistakes, including not satisfying the conditions
prescribed in Clause 3 Article 17 and Article 17 of the Decree No.
88/2010/ND-CP, or announcing incorrect test result.
The tester is banned from operation for 01 year
from the day on which the Director of the Department of Crop Production decides
to annul the Decision on appointment. If the tester wishes to go back to
practice, it must apply for the reappointment as prescribed in Clause 1 and
Clause 2 Article 13 of this Circular.
Article 16. The DUS tests
run by applicants
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a) The detailed list of conditions for testing
according to the template in Annex 11 of this Circular, in accordance with the
regulations on DUS testing of each king of plants;
b) The testing plan according to the template in
Annex 12 of this Circular.
2. The Department of Crop production shall
examine the documents, carry out on-the-spot inspection where necessary, and
notify the applicant that they may run the test on the registered varieties in
the Notice of acceptance as prescribed in Clause 2 Article 9 of this Circular.
3. Within 30 working days from the day on which
the permission for testing is signed, the applicant must report the changes of
the testing plan to Department of Crop production in writing.
4. Within 45 working days from the ending day of
testing, the applicant shall send the Department of Crop production the report
on test results according to the template in Annex 13 of this Circular.
5. On-the-spot inspection:
a) The Department of Crop production shall
establish a Inspectorate composed on 2 – 3 persons, including at least 01
expert from a DUS tester or from an agency that specifically studies that plant
variety;
b) The Inspectorate shall assess the DUS tests
at least once at an appropriate time according to the regulations on DUS
testing;
c) Inspection contents: the conformity of the
applicant with the conditions for testing; the conformity of the tests being
run with the testing regulations and the test result;
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6. Handling the inspection results
a) When mistakes are made but the test result is
not affected, such mistakes must be immediately rectified and reported to the
Department of Crop production according to the template in Annex 10 of this
Circular;
b) When serious mistakes prescribed in Clause 4
Article 15 of this Circular are made, the tests must be terminated in order to
select another method of testing on the registered varieties.
Article 17. The deadline
for submitting plant variety samples, the management and use of plant variety
samples
1. The deadline for submitting variety samples,
the management and use of plant variety samples are specified in the Circular
No. 41/2009/TT-BNNPTNT dated July 09th 2009 on the management and
use of plant variety samples.
2. Within 01 year from the day on which the
valid application is accepted, if the applicant fails to submit the plant
variety samples to the tester, the application shall be rejected.
Article 18. Amending the
plant variety patent
1. The patent holder is entitled to request the
Department of Crop production to correct the errors in his name and address.
2. The patent holder that requests the amendment
of the patent shall submit 01 dossier or the Department of Crop production. The
dossier comprises:
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b) The original Patent;
b) The copy (authenticated or enclosed with the
original for comparison) of the decision to change the name or address, or the
Certificate of Business registration that records the change of the name or
address, or other legal documents proving the change of the name or address of
the patent holder;
d) The letter of authorization (if the dossier
is submitted by the representative);
dd) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
3. Order and deadline for settlement:
a) Within 03 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 15 working days from the day on which
the complete and valid dossier is received, the Director of Department of Crop
production shall sign the decision to amend the plant variety patent, record it
to the National Register, and post it on the website of the New Plant Variety
Protection Office within 05 working days from the day on which the decision is
signed, or on the Agriculture and Rural Development Magazine. The refusal
must be notified and explained in writing.
4. When the plant variety patent has errors due
to the mistakes of the Department of Crop production, the Department of Crop
production must reissue the patent within 03 working days from day on which the
request is made (do not collect fees for reissuing the patent).
Article 19. Reissuance of
the plant variety patent
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a) The patent is lost;
b) The patent is damaged or smudged or faded so
that it cannot be used.
2. The patent holder that requests the
reissuance of the patent shall submit 01 dossier or the Department of Crop
production. The dossier comprises:
a) The written request for the reissuance of the
Patent according to the template in Annex 16 of this Circular;
b) The letter of authorization (if the dossier
is submitted by the representative);
c) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production;
d) The damaged or smudged or faded patent.
3. Order and deadline for settlement:
a) Within 03 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
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Article 20. Suspending the
plant variety patent
1. Before the expiration date of the patent, a
third party may submit 01 dossier to request the suspension of the patent to
the Department of Crop production, for the reason that the protected plant
variety no longer fulfills the uniformity and stability criteria as it did when
the patent is issued as prescribed in Point a Clause 1 Article 170 of the Law
on Intellectual property. The dossier comprises:
a) The written request for the suspension of the
Patent according to the template in Annex 17 of this Circular;
b) The documents proving that the plant variety
no longer fulfills the uniformity and stability criteria as it did when the
patent is issued;
c) The photocopies of the testing fee receipts
and the faxes of the papers proving that money has been sent to the account of
the Department of Crop production.
2. Order and deadline for settlement:
a) Within 30 working days from the day on which
the request for the suspension of the plant variety patent made by the third
party is received, the Department of Crop production shall finish verifying the
information in the request, and send a Notice of suspension to the patent
holder if the request is reasonable; or notify the third party of the
unreasonability. The request for the suspension of the plant variety
patent must be made in writing, enclosed with the proof that the plant variety
no longer fulfills the uniformity and stability criteria as it did when the
patent is issued; the fees for retesting must be paid;
b) If the patent holder does not raise any
objection within 30 working days from the day on which the notice of the
suspension is made by the plant variety protection agency, the Department of
Crop production shall sign the decision to suspend the plant variety patent,
and notify it to the third party. The suspensions begins on the signing date of
the decision to suspend the patent, and shall be posted on the website of the
New Plant Variety Protection Office or on the Agriculture and Rural Development
Magazine;
c) Where the plant variety patent holder lodges
an objection, within 30 working days from the day on which the objection is
received, the Department of Crop production shall request the patent holder to
follow the procedure for retesting as prescribed in Clause 4 Article 15 of the
Decree No. 88/2010/ND-CP; the retesting shall be conducted by the testers
prescribed in Point a Clause 1 Article 15 of the Decree No. 88/2010/ND-CP.
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If the retesting result shows that the plant
variety is still uniform or stable as it was when the patent is issued, within
15 working days from the day on which the retesting result is given, the
Department of Crop production shall notify such result to the third party.
Article 21. Restoring the
plant variety patent
1. Within 30 working days from the day on which
the Director of the Department of Crop Production signs the Notice of
suspension of the patent, the patent holder may send the Department of Crop
production 01 dossier to request the restoration of the patent. The dossier
comprises:
a) The written request for the restoration of
the Patent according to the template in Annex 18 of this Circular;
b) The proof that the patent holder has
eliminated the causes of suspension;
c) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Deadline for settlement:
a) If the suspension is imposed because the fee
for maintaining the validity is not paid, the plant variety name is not
changed, to documents and propagating material are not provided: within 05
working days from the day on which the proof that the patent holder has made
the rectification is provided, Director of the Department of Crop Production
shall sign the decision to restore the meeting minutes, record it to the
National Register, and post it on the website of the New Plant Variety
Protection Office or on the Agriculture and Rural Development Magazine within
05 working days from the signing day of the decision;
b) If the suspension is imposed because the
plant variety no longer fulfills the uniformity and stability criteria as it
did when the patent is issued as prescribed in Point Clause 1 Article 170
of the Law on Intellectual property: within 10 working days from the day on
which the patent proves that the plant variety has fulfilled the uniformity and
stability criteria, Director of the Department of Crop Production shall sign
the decision to restore the patent, record it to the National Register, and
post it on the website of the New Plant Variety Protection Office or on
Agriculture and Rural Development Magazine within 05 working days from the
signing date of the decision.
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1. Before the expiration date of the patent, a
third party may send the Department of Crop production 01 dossier to request
the invalidation of the patent if there are signs of violations as prescribed
in Clause 1 Article 171 of the Law on Intellectual property. The dossier
comprises:
a) The written request for the invalidation of
the Patent according to the template in Annex 17 of this Circular;
b) The proof of the reasons for requesting the
invalidation;
c) The photocopies of the testing fee receipts
and the faxes of the papers proving that money has been sent to the account of
the Department of Crop production (applicable to Point b and Point c Clause 1
Article 171 of the Law on Intellectual property).
2. Order and deadline for settlement:
a) Within 05 working days from the day on which
the dossier is received, the New Plant Variety Protection Office shall check
the adequacy of the dossier, and request the supplementation if the dossier is
not adequate;
b) IF the invalidation of the patent is
requested because the plant variety does not fulfill the novelty criteria, or
the patent holder is not entitled to apply: within 30 working days from the day
on which the complete dossier is received, Director of the Department of Crop
Production shall sign the decision to invalidate the patent, record it to the
National Register, and post it on the website of the New Plant Variety Protection
Office within 05 working days from the day on which the decision is signed, or
on the Agriculture and Rural Development Magazine.
b) IF the invalidation of the patent is
requested because the plant variety does not fulfill the distinctness or
uniformity or stability criteria: within 10 working days from the end of
verification of test results, the Director of the Department of Crop Production
shall sign the decision to invalidate the patent, record it to the National
Register, or reject the request for the invalidation, provide explanation, and
post it on the website of the New Plant Variety Protection Office within 05
working days from the day on which the decision is signed, or on the
Agriculture and Rural Development Magazine.
Chapter III
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Article 23. Training in
representation for plant variety rights
1. The training in representation for plant
variety rights consists of 02 parts:
a) The laws on plant variety rights, including
the Vietnam’s laws, International Agreements and bilateral agreements to which
Vietnam is a signatory;
b) The skills in representation for plant
variety rights, including the application of law to making, submitting, and
monitoring the application for plant variety rights; the general regulations on
DUS testing; the skills in searching and gathering information about protection
of plant varieties.
2. Director of the Department of Crop Production
shall approves the training program for the representation for plant variety
rights, including the training contents and period, the demands on lecturers,
and the tests on the skills in representation for plant variety rights.
3. The persons that complete the training
courses in laws on plant variety rights shall be issued with the Certificate of
training in plant variety rights. The persons that complete the training
courses in laws on representation for plant variety rights and pass the tests
are considered to be proficient in representation for plant variety rights.
4. Running training courses in representation
for plant variety rights:
a) The Department of Crop production shall
notify the training contents, time, location, and expense to the learners;
b) The Department of Crop production shall run
training courses in representation for plant variety rights and test the skills
in representation for plant variety rights according to the program approved by
the Director of the Department of Crop Production;
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Article 24. Issuance of
License to represent plant variety rights
1. The persons that satisfy the conditions in
Point 5 and Clause 21 Article 1 of the amended Law on Intellectual property and
wish to be issued with the License to represent plant variety rights
(hereinafter referred to as License for representation)shall submit 01 dossier
to the Department of Crop production. The dossier comprises:
a) The written request for issuing the License
for representation according to the form in Annex 19 of this Circular;
b) The photocopy of the ID card;
c) The copy of the Bachelor’s degree
(authenticated or enclosed with the original for comparison);
d) The photocopy of the Certificate of training
in plant variety rights, or the original copy of one of the following
documents: The written certification made by the training institution that the
applicant has completed the undergraduate or postgraduate dissertation on plant
variety rights, or the copy of the dissertation enclosed with the original for
comparison; the written certification made by a competent agency that the
applicant has directly verified the applications for protection in a national
or international plant variety right agency, or has worked in laws on plant
variety rights for at least 05 consecutive years.
dd) 02 3x4 pictures;
e) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Order and deadline for settlement:
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b) Within 10 working days from the day on which
the complete and valid dossier is received, the Director of Department of Crop
production shall sign the decision to issue the License to the person that
submitted the valid dossier and is in the list of people that pass the test on
representation for plant variety rights, record it to the National Register of
representation for plant variety rights, and post it on the website of the New
Plant Variety Protection Office within 05 working days from the day on which
the decision is signed. The refusal must be notified and explained in
writing.
Article 25. Revoking the
License for representation
1. The License shall be revoked in the following
cases:
a) The License holder violates the regulations
in Clause 2 Article 38 of the Decree No. 88/2010/ND-CP or other law
regulations, and competent agencies request the revocation of his License;
b) There is proof that the License is issued
illegally, and its holder does not satisfy the requirements in Point 5 Clause
21 Article 1 of the Law on the revision of the Law on Intellectual property.
2. When there are grounds for revoking the
License as prescribed in Clause 1 of this Article, the New Plant Variety Protection
Office shall:
a) Request the Director of the Department of
Crop Production to issue the Decision to revoke the License for representation
at the request of the competent agency as prescribed in Point a Clause 1 of
this Article;
b) Remove the name of the License holder from
the National Register;
c) Announce the revocation on the website of the
New Plant Variety Protection Office within 05 working days from the day on
which the decision is signed.
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1. When the License is lost, damaged, smudged,
or faded so that it cannot be used, or expired after 03 years, the holder may
apply for the reissuance of the License as prescribed in Point a Clause 1
Article 25 of this Circular.
2. The applicant for the reissuance of the
License shall submit 01 dossier or the Department of Crop production. The
dossier comprises:
a) The written request for the reissuance of the
License according to the template in Annex 20 of this Circular;
b) 02 3x4 pictures;
c) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
3. Order and deadline for settlement:
a) Within 03 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 10 working days from the day on which
the Department of Crop production receives the complete and valid dossier, the Department
of Crop production shall reissue the License for representation.
4. In case the License for representation is
incorrect due to a mistake made by the Department of Crop production, it must
reissue the License free of charge within 03 working days from the day on which
the request is received.
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1. The organization wishing to apply for the
registration of the plant variety right representation service provider
(hereinafter referred to as representation service provider)shall submit 01
dossier or the Department of Crop production. The dossier comprises:
a) The application for the registration of
representation service providers according to the template in Annex 21of this
Circular;
b) The list of members that hold the License for
representation, including the director of the organization or the director of
the authorizing organization;
c) The authenticated copy of the Certificate of
Business registration or Certificate of Operation registration;
d) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Order and deadline for settlement:
a) Within 05 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 15 working days from the day on which
the complete and valid dossier is received, the Director of Department of Crop
production shall issue the Notice of the registration of the representation
service provider in the National Register of representation for plant
variety rights, and post it on the website of the New Plant Variety Protection
Office within 05 working days from the day on which the decision is signed, or
on the Agriculture and Rural Development Magazine. The refusal must be
notified and explained in writing.
Article 28. Registration of
the change of information about representation service providers
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a) The written request for the registration of
the changes of information about the representation service provider according
to template 22 of this Circular;
b) The authenticated copy of the amended
Certificate of Business registration or Certificate of Operation registration
of the representation service provider;
c) The decision on employment or termination of
labor contracts of the members in the list of plant variety right
representatives;
d) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Order and deadline for settlement:
a) Within 03 working days from the day on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 10 working days from the day on which
the complete and valid dossier is received, the Director of Department of Crop
production shall sign the Notice of the registration of the change of
information about the representation service provider in the National Register
of representation for plant variety rights, and post it on the website of the
New Plant Variety Protection Office within 05 working days from the day on
which the decision is signed, or on the Agriculture and Rural Development
Magazine. The refusal must be notified and explained in writing.
Article 29. Removing
representation service providers
When a representation service provider violates
the regulations in Clause 2 Article 37 of the Decree No. 88/2010/ND-CP, and
competent agencies request the removal of its name, the New Plant Variety
Protection Office shall:
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2. Remove its name from the National Register of
representation for plant variety rights;
3. Announce this removal on the website of the
New Plant Variety Protection Office within 05 working days from the date on
which the decision is signed, or on the Agriculture and Rural Development
Magazine.
Chapter IV
EXAMINATION OF PLANT
VARIETY RIGHTS
Article 30. Training in
examination of plant variety rights
1. The training in examination of plant variety
rights consists of 02 parts:
a) The laws on plant variety rights, including
the Vietnam’s laws, International Agreements and bilateral agreements to which
Vietnam is a signatory;
b) The skills in examination of plant variety
rights, including the application of law to the determination of the protection
range; the violations of the plant variety rights; the differences between
considered varieties and protected varieties; the value of plant variety
rights, and the damage.
2. Director of the Department of Crop Production
shall approves the training program for examination of plant variety rights,
including the training contents and period, the demands on lecturers, and the
tests on the skills in examination of plant variety rights.
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4. Running the courses in examination of plant
variety rights:
a) The Department of Crop production shall
notify the training contents, time, location, and expense to the learners.
b) The Department of Crop production shall run
the training courses in examination of plant variety rights and test the skills
in examination of plant variety rights according to the program approved by the
Director of the Department of Crop Production;
c) The Director of the Department of Crop
Production shall approve the list of people that pass the tests on the
examination of plant variety rights, and announce it on the website of New
Plant Variety Protection Office.
Article 31. The issuance of
the plant variety right examiner’s license
1. A Vietnamese citizen, capable of civil acts,
reside in Vietnam, and pass the test on examination of plant variety rights,
has not been penalized for the violations against the laws on intellectual
property, has not violated the professional ethics, is not liable to criminal
prosecution, nor convicted without having the criminal record deleted, may
apply for the plant variety right examiner’s license (hereinafter referred to
as examiner’s license)
2. The applicant prescribed in Clause 1 of this
Article shall submit 01 dossier to the Department of Crop production. The
dossier comprises:
a) The written application for the examiner’s
license according to the template in Annex 23 of this Circular;
b) The photocopy of the ID card;
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d) The documents, certified by competent
agencies, certifying that the applicant has worked on plant varieties for at
least 05 years;
dd) 02 3x4 pictures;
e) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
3. Order and deadline for settlement:
a) If the dossier is inadequate, the Department
of Crop production shall notify it to the applicant within 05 working days from
the day on which the dossier is received.
b) Within 15 working days from the day on which
the complete dossier is receive, the Director of the Department of Crop
Production shall issue the examiner’s license according to the template in
Annex 24 enclosed with this Circular, record it to the National Register of
plant variety right examination; and post it on the website of the New Plant
Variety Protection Office within 05 working days from the date of issue. The
refusal must be notified and explained in writing.
Article 32. The revocation
of the examiner’s license
1. The examiner’s license shall be revoked in
the following cases:
a) The holder of the examiner’s license violates
the regulations in Article 52 of the Decree No. 105/2006/ND-CP or other law
regulations, and competent agencies request the revocation of the examiner’s
license;
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c) The holder of the examiner’s license resigns.
2. Procedure for revoking the examiner’s
license:
Where there are grounds for revoking the
examiner’s license as prescribed in Clause 1 of this Article, the Director of
the Department of Crop Production shall:
a) Sign the decision to revoke the examiner’s
license;
b) Remove the examiner’s name from the National
Register;
c) Announce the revocation on the website of the
New Plant Variety Protection Office within 05 working days from the day on
which the decision is signed.
Article 33. The reissuance
of the examiner’s license
1. When the examiner’s license is lost, damaged,
smudged, or faded so that it cannot be used, or the revocation period is
passed, its holder may apply for the reissuance of the examiner’s license and
submit 01 dossier to the Department of Crop production. The dossier comprises:
a) The application for the reissuance of the
examiner’s license according to the template in Annex 25 of this Circular;
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c) 02 3x4 pictures;
d) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Order and deadline for settlement:
a) Within 05 working days from the date on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 10 working days from the day on which
the Department of Crop production receives the complete and valid dossier, the
Department of Crop production shall reissue the examiner’s license. The
refusal must be notified and explained in writing.
3. In case the examiner’s license is incorrect
due to a mistake made by the Department of Crop production, it must reissue the
examiner’s license free of charge within 03 working days from the day on which
the request is received.
Article 34. The Certificate
of eligibility for examining plant variety rights
1. When an organization that satisfies the
conditions in Clause 10 Article 1 of the Decree No. 119/2010/ND-CP wishes to be
issued with the Certificate of eligibility for examining plant variety rights
(hereinafter referred to as Certificate) shall submit 01 dossier together with
the fee to the Department of Crop production. The dossier comprises:
a) The application for the Certificate according
to the template in Annex 26 of this Circular;
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c) The copy (authenticated or enclosed with the
original for comparison) of the Certificate of Business registration and
Certificate of science and technology activity registration or certificate of
operation registration of the law-practicing organization, specifying that it
is licensed to examine plant variety rights;
d) The statistics on the premises, equipment,
and database necessary for examination (the list of permissible varieties, the
list of protected varieties, the technical regulations of UPOV and Vietnam);
dd) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. Order and deadline for settlement:
a) Within 05 working days from the date on which
the dossier is received, Department of Crop production shall check the adequacy
of the dossier, and request the supplementation if the dossier is not adequate;
b) Within 15 working days from the date on which
the complete and valid dossier is received, the Director of Department of Crop
production shall issue the Certificate to the organization eligible for
examining plant variety rights according to Annex 27 enclosed with this
Circular, record it to the National Register of plant variety right
examination, and post it on the website of the New Plant Variety Protection
Office within 05 working days from the date on which the decision is signed.
The refusal must be notified and explained in writing.
Article 35. Registering the
change of information about organizations the examine plant variety rights
(hereinafter referred to as examining organizations)
1. An examining organization wishing to register
the change of its name, address or members in the list of examiners shall
submit 01 dossier to the Department of Crop production. The dossier comprises:
a) The written request for the registration of
the change of information about the examining organization according to the template
in Annex 28 of this Circular;
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c) The decision on employment or termination of
labor contracts of the members in the list of examiners;
d) The photocopies of the receipts, or the fax
of the papers proving that money has been transferred to the account of the
Department of Crop production.
2. The order and deadline for changing the
information about examining organizations are similar to that prescribed in
Clause 2 Article 28 of this Circular.
Article 36. Removing
examining organizations
1. An examining organization shall be removed
when:
a) It commit violations as prescribed in Article
52 of the Decree No. 105/2006/ND-CP, and competent agencies request its
removal;
b) There are grounds to assert that the
Certificate of eligibility for examining plant variety rights is issued
illegally and its holder does not satisfy the conditions in Clause 10 Article 1
of the Decree No. 119/2010/ND-CP;
c) The examining organization resigns.
2. The procedure for removing examining
organizations
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a) Sign the decision to remove the examining
organization;
b) Remove its name from the National Register of
plant variety right examination;
c) Announce the revocation on the website of the
New Plant Variety Protection Office within 05 working days from the day on
which the decision is signed.
Chapter V
REGULATIONS ON THE
IMPLEMENTATION
Article 37. Regulations on
the implementation
1. This Circular takes effect on April 13th
2013.
2. The Director of the Department of Crop
Production, the Chief of the Ministry Office, Directors of Ministerial units,
relevant organizations and individuals are responsible for the implementation
of this Circular.
3. Organizations and individuals are recommended
to report the difficulties arising during the course of implementation to the
Ministry of Agriculture and Rural development (the Department of Crop
production) for resolution./.
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PP THE
MINISTER
DEPUTY MINISTER
Bui Ba Bong