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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
13/2001/ND-CP
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Hanoi,
April 20, 2001
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DECREE
ON THE PROTECTION OF NEW PLANT VARIETIES
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Civil Code of October 28, 1995;
At the proposal of the Minister of Agriculture and Rural Development,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of application
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2. This Decree lays down the principles and
conditions for being granted the titles of protection of new plant varieties
(called the protection titles for short); the order and procedures for granting
of the protection titles; interests and obligations of the protection title holders;
the suspension and cancellation of the protection titles; the State management
and sanctions related to the protection of new plant varieties.
3. New plant varieties owned by organizations
and individuals of the countries which have together with Vietnam signed or
acceded to international agreements on the protection of new plant varieties,
shall be protected in Vietnam according to the provisions of this Decree,
except otherwise provided for in international agreements which the Socialist
Republic of Vietnam has signed or acceded to.
4. New plant varieties selected and created by
domestic organizations and individuals, which are related to national interests
and need to be kept secret, shall be subject to separate regulations of the
State.
Article 2.-
Interpretation of terms
In this Decree, the following terms are
construed as follows:
1. "Plant variety" is a group of
plants of the lowest level in the botanic classification, which should meet the
following conditions:
a/ Being recognized through the manifestation of
characteristics dictated by their genetype;
b/ Being distinguishable from any other group of
plants through the manifestation of at least one characteristic mentioned at
Point a of this Clause;
c/ Being stable in the multiplicative process.
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3. "Protected new plant variety" means
a new plant variety which is granted the protection title.
4. "Plant varieties actually originated
from protected plant varieties" mean plant varieties newly created from
the protected plant varieties (original varieties) by some selective creation
methods, for example: variation selection (natural or artificial mutations,
somatic variations, selection of individual variations from original plants),
backcrossing, gene transfer, cell fusion, which basically retain
characteristics like the original varieties and differ from the original
varieties in one or several characteristics.
5. "Widely-known plant varieties", including:
a/ New plant varieties protected by the State;
b/ New plant varieties with the applications for
protection thereof having been filed and published by the competent bodies on a
specialized journal;
c/ Plant varieties recognized as national
varieties;
d/ Specialty plant varieties of localities,
recognized by the provincial/municipal Agriculture and Rural Development
Services;
e/ Varieties mentioned at Points a and b of this
Clause, of the countries that have signed agreements with Vietnam on the protection
of new plant varieties.
6. "Stock" means whole trees or parts
thereof such as seeds, saplings, cuttings, grafts, tissues, cells, budding
tuber, trunk sections used for production of new plants.
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8. "Authors of new plant varieties"
mean individuals or a group of persons who have used the plant gene source to
select, create or transform wild plants into new plant varieties.
9. "Protection title holders" are
organizations and individuals that are granted the protection titles or
entitled to transfer or inherit the protection titles and have the right to
lawfully own new plant varieties.
10. "Assay of distinctiveness, uniformity
and stability" (hereinafter called DUS assay) means the assay on fields or
in laboratories according to the set procedures to determine the
distinctiveness, uniformity and stability of new plant varieties.
11. "Licensing" means the transfer of
the right to use plant varieties to those who need to use them.
Article 3.- General
principles for the protection of the rights over new plant varieties
1. The State recognizes and protects the rights
over new plant varieties in the form of granting protection titles.
2. All activities of selecting, creating,
producing, trading in and using new plant varieties protected by the State
shall have to comply with the provisions of this Decree and other relevant
legal documents.
3. Titles of protection of new plant varieties
shall be granted only once to those entitled to own protection titles after the
appraisal of the dossier form and the appraisal of the dossier contents; no
re-granting shall be made.
4. Grantees of the titles of protection of plant
varieties shall have to pay an appraisal fee and annual fees to maintain the
effect of their protection titles.
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CONDITIONS, ORDER AND
PROCEDURES FOR GRANTING OF PROTECTION TITLES
Article 4.- Conditions
for new plant varieties to be protected
To be protected, new plant varieties must meet
all the following conditions:
1. New plant varieties must belong to the
branches and species of plants on the list of protected plants, publicized by
the Ministry of Agriculture and Rural Development.
2. New plant varieties must be distinctive.
A plant variety shall be regarded as being
distinctive if it bears one or many principal characteristics obviously
distinctive from plant varieties that are widely known at the time the
applications for protection are filed.
3. New plant varieties must be uniform.
A plant variety shall be regarded as being
uniform if all of its plants manifest the same principal characteristics,
excluding disparities within a permitted extent for some specific
characteristics during the multiplicative process.
4. New plant varieties must be stable
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5. New plant varieties must be commercially new.
A plant variety shall be regarded as being
commercially new if at the time the application for its protection is filed,
the stock or harvested product of such plant variety had not yet been sold or
distributed for the purposes of plant variety trading by the person entitled to
file such application or by a legally authorized person one year before the
date the application is filed on the Vietnamese territory and six years before
the date the application is filed outside the Vietnamese territory for groups
of woody and bine plants, and four years for other groups of plants.
6. New plant varieties must bear appropriate
appellations, easily distinguishable from those of other plant varieties of the
same species, which are widely known. The appellations of new plant varieties
shall, after being approved in writing by the competent bodies, be the official
appellations, even after the expiry of the protection duration and nobody may
use them freely.
The following ways of appellation shall not be
accepted by the State:
a/ Consisting of only numerals;
b/ Violating social ethics;
c/ Easily causing misunderstanding of the
characteristics and properties of the species or the author�s biography;
d/ Being identical or confusingly similar to
protected trademarks, origin appellations of products; being identical or
similar to harvested products of such plant varieties.
Article 5.- Subjects
entitled to request the granting of protection titles
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For individuals (variety authors) performing the
task of selecting and creating new plant varieties, assigned by particular
organizations, such organizations shall be entitled to file applications for
protection titles.
2. Individuals selecting and creating new plant
varieties with their own efforts and financial sources shall be entitled to
file applications for protection titles.
3. For new plant varieties selected and created
under cooperation contracts between the parties, the right to file applications
shall be agreed upon by the parties to the contracts; where the party entitled
to file an application is not specified in the contract, the party that hires
persons to create new plant varieties shall be entitled to file an application.
4. Where more than one organization or
individual file applications for protection titles related to the same new
plant variety, the organization or individual that is the first to file the
dossier shall be accepted and considered for the granting of the protection
title for the new plant variety according to the provisions of this Decree.
5. Where the subjects stated in Item 4 of this
Article file their applications on the same day, the application of the
organization or individual that is the first to select and create the new plant
variety at issue shall be accepted and considered for the granting of a
protection title. Where it is impossible to identify which organization or
individual is the first to create the new plant variety, the competent body may
refuse to accept their applications. The above organizations and individuals
may agree with one another on together filing a sole application and being
co-holders of the granted protection title.
Article 6.- Dossiers of
application for protection titles
1. The applicant for a protection title shall
submit a dossier consisting of:
a/ An application for a protection title;
b/ Documents describing the variety according to
the set form together with its photos;
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2. Organizations or individuals applying for
protection titles shall have to directly submit or authorize other
organizations or individuals to represent them in submitting their dossiers to
the competent bodies.
3. Foreign organizations or individuals that
have lawful representatives in Vietnam and apply for protection titles may
directly submit or authorize other organizations or individuals having the
legal person status to represent them in submitting their dossiers to the
competent bodies.
Where foreign organizations or individuals have
no lawful representatives in Vietnam and wish to apply for protection titles,
they shall have to submit their dossiers and carry out related procedures
through representation service organizations having the legal person status to
represent them in submitting their dossiers.
4. Where dossiers of application for protection
titles are compliant with the provisions of Clause 1 of this Article, the
competent bodies shall have to certify the date of submission and clearly
inscribe the applications�
number signs.
Article 7.- Appraisal of
the form of the dossiers of application for protection titles
1. Within 15 days after the date on which the
dossiers are submitted, the competent bodies shall have to complete the
appraisal of the dossier form, determine the dates of submission of valid
dossiers and the priority dates. If detecting that the dossiers are incomplete
or imperfect, they shall have to notify the dossier submitters thereof. Within
30 days after the date of receipt of such notice, the dossier submitters shall
have to come and give explanations or revise and make additions to their
dossiers. Where revised or supplemented dossiers remain inappropriate or no
revision or supplement is made, the competent bodies may decline to consider
them.
2. The date of submission of valid dossier is
determined as the date on which the dossier no longer contains any error or the
date on which the dossier is completed by the submitter and accepted by the
competent body.
3. Within 90 days after the date the applicants
for protection titles submit valid dossiers, the competent bodies shall have to
complete the step 1- appraisal of the following contents:
a/ Whether or not the dossier submitters are
eligible as prescribed in Article 5 of this Decree;
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c/ Whether or not the new plant varieties fall
into the categories specified in Clauses 3 and 4, Article 1 of this Decree;
d/ Whether or not the new plant varieties meet
the condition on commercial newness as prescribed in Clause 5, Article 4 of
this Decree;
e/ Whether or not the appellations of the new
plant varieties comply with Clause 6, Article 4 of this Decree. If the
appellations of the new plant varieties do not comply therewith, the competent
bodies shall have to notify the dossier submitters thereof. The dossier
submitters shall have to give new appellations and submit them to the competent
bodies within 15 days after receipt of the latter�s
notices. If the varieties’ new appellations still fail to comply, the competent
bodies may decline to consider such dossiers.
4. In the process of appraising the dossier
content, the competent bodies may request the dossier submitters to correct
errors related to the content and form of their dossiers. If the dossier
submitters do not come to supplement and/or revise them, the competent bodies
may reject such dossiers.
5. In cases where the competent bodies accept
the dossiers in writing, after conducting the step 1-appraisal, they shall
publish the notices thereof on a specialized journal and inform such to the
applicants for the latter to come and carry out the procedures for the step
2-appraisal.
Article 8.- Appraisal of
the contents of dossiers of application for protection titles
1. Within 15 days after receipt of the notices
prescribed in Clause 5, Article 7 of this Decree, the dossier submitters shall
have to submit their variety samples to the DUS-assay agency.
2. DUS assay shall be conducted according to
assay procedures applicable to each new plant species, which are issued by the
Ministry of Agriculture and Rural Development. The competent bodies shall
conduct the step 2-appraisal of the distinctiveness, uniformity and stability
of the new plant varieties on the basis of the DUS assay results of the assay
agency.
3. After the step 2-appraisal results are made
available, the competent bodies shall have to:
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b/ Within 30 days after the competent bodies
publish on a specialized journal notices of their intention to grant the
protection titles, if there are no opinions against such notices, they shall
complete the procedures for granting the protection titles; if there are
opinions against such notices, within 30 days after receiving such opinions,
the competent bodies shall have to consider them and make conclusions;
c/ Reject the applications and notify the
dossier submitters, publish on a specialized journal the notices that the
dossiers are, after undergoing the step 2-appraisal, not compliant with the
provisions of Clauses 2, 3 and 4, Article 4 of this Decree.
4. If disagreeing with the rejection of their
applications, within 30 days after receiving the application-rejecting notices,
the dossier submitters may lodge written complaints with the Minister of
Agriculture and Rural Development.
5. For varieties eligible for being granted the
protection titles, the Minister of Agriculture and Rural Development shall sign
decisions to grant the protection titles.
At the requests of the protection title holders,
the Ministry of Agriculture and Rural Development may grant copies of the
protection titles to their holders if the latter can give plausible reasons
therefor.
Article 9.- Term of
protection of new plant varieties
The term of protection is 20 years for new plant
varieties; 25 years for woody plants, as from the date of granting of the
protection titles.
The term of protection of new plant varieties
shall be counted from the date of granting of the protection titles to the end
of the date of expiry of the effective terms of the protection titles or to the
date of termination of the effect thereof.
Article 10.- Priority
right
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2. Within 90 days after submitting the second
dossiers, organizations and individuals that wish to enjoy the priority right
shall have to submit to the competent bodies the copies of dossiers of the
first applications with certification by the bodies that received them, samples
and other evidences to prove that the new plant varieties are the same in the
two applications.
3. The applications for the protection titles
enjoying the priority right shall have the corresponding priority date being
the date of filing of the first valid applications.
Chapter III
INTERESTS AND
OBLIGATIONS OF PROTECTION TITLE HOLDERS AND AUTHORS OF NEW PLANT VARIETIES
Article 11.- Rights of
protection title holders
1. The holders of the titles of protection of
new plant varieties may permit or not permit the use of the stocks of the
protected varieties, harvested products from the cultivation of the stocks of
the protected varieties in the following activities:
a/ Production or multiplication for the business
purpose;
b/ Processing of varieties for the business
purpose;
c/ Sale offers;
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e/ Export;
f/ Import;
g/ Storing for conducting activities specified
at Points a, b, c, d, e and f of this Clause.
2. During the time from the date they file valid
applications to the date they are granted the titles of protection of new plant
varieties, the protection title holders may request other organizations and/or
individuals to pay compensation for damage caused by their acts related to the
protected plant varieties stocks and harvested products according to the
provisions of Clause 1 of this Article, which are not yet permitted by the
protection title holders.
3. The protection title holders rights over the
activities specified in Clauses 1 and 2 of this Article shall also apply in the
following cases:
a/ New plant varieties actually originated from
the protected varieties which themselves are not actually originated from
another protected variety;
b/ New plant varieties which are not obviously
distinctive from protected varieties;
c/ New plant varieties the multiplication of which
requires the repeated use of protected varieties.
4. The protection title holders may themselves
exploit or transfer the right to exploit new plant varieties to other
organizations and/or individuals. Contracts for transfer of the right to
exploit new plant varieties shall be made in writing and registered with
competent bodies.
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6. The protection title holders may request the
competent bodies to handle acts of infringing upon their rights and request the
infringers to pay compensation for damage.
7. The holders of the titles of protection of
varieties may not enjoy the right to protection of their varieties in the
following cases:
a/ Varieties used for personal purposes and not
for commercial purposes;
b/ Farmers who cultivate stocks of the protected
varieties use the harvested products as strains for subsequent crops at their
farms or for exchange among farming households;
c/ Varieties used for cross-breeding to create
other new plant varieties, except cases where such varieties are actually
originated from the protected varieties.
Article 12.-
Obligations of the protection title holders
The protection title holders shall have the
following obligations:
1. To personally preserve or authorize other
persons to preserve the stocks of the protected varieties and supply such
stocks at the requests of the competent bodies for custody at the gene bank,
for use as standard samples for cultivation to enable the inspection of the
distinctiveness, uniformity and stability of the protected varieties;
2. The protection title holders being Vietnamese
organizations and individuals shall have to pay remuneration to the variety
authors stated in Article 5 of this Decree. If there is no other agreement
between the authors and the protection title holders, the minimum remuneration
level shall not be lower than 20% of the profits earned by the protection title
holders from the exploitation of the new plant varieties each year; or 30% of
the total payment the protection title holders receive from each sale of
license or from the compensation for the granting of non-voluntary licenses;
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4. Vietnamese organizations and individuals may
transfer the right to own the titles of protection of new plant varieties to
foreign organizations and individuals when so permitted by the Ministry of
Agriculture and Rural Development.
Article 13.-
Restrictions on the rights of the protection title holders
1. The holders of the titles of protection of
new plant varieties may exercise the right to exploit the new plant varieties
for mass production on Vietnams territory only when such new plant varieties
are recognized as national varieties according to the regulations of the
Ministry of Agriculture and Rural Development.
2. In the national interests or public
interests, the competent bodies may issue decisions to grant non-voluntary
licenses to exploit the protected new plant varieties. The granting of
non-voluntary licenses shall be effected only under the conditions specified in
Article 802 of the Civil Code.
The Ministry of Agriculture and Rural
Development is the State body competent to consider and issue decisions to
grant non-voluntary licenses to exploit the protected plant varieties.
Organizations and individuals that are granted
non-voluntary licenses shall have to pay a variety exploitation fee to the
protection title holders at a rate agreed upon by themselves according to law
provisions.
Within 30 days after receiving the decisions to
grant non-voluntary licenses, if the protection title holders disagree with
such decisions, they may lodge complaints with the competent State bodies
according to the provisions of the Law on Complaints and Denunciations.
Article 14.- Rights and
obligations of the authors of new plant varieties
1. The authors of new plant varieties, who are
specified in Clauses 1, 2 and 4, Article 5 of this Decree, shall have the
following rights:
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b/ To receive remuneration from the protection
title holders according to the provisions of Clause 3, Article 12 of this
Decree;
c/ To request the competent bodies to handle or
initiate lawsuits against the infringement upon their rights specified at
Points a and b, Clause 1 of this Article.
2. The authors of new plant varieties shall have
the duty to help the protection title holders to perform the obligation of
preserving the stocks of the protected new plant varieties.
Chapter IV
SUSPENSION AND
CANCELLATION OF PROTECTION TITLES
Article 15.- Suspension
of protection titles
1. The protection titles shall be suspended when
one of the following violations is committed:
a/ The protection title holders fail to perform
the obligations specified in Article 12 of this Decree;
b/ The plant varieties fail to ensure their
uniformity or stability as at the time the protection titles are granted.
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3. The protection titles shall resume their
effect after their holders have performed all obligations specified in Article
12 or regained their uniformity or stability as at the time they are granted.
Article 16.-
Cancellation of protection titles
The protection titles shall be cancelled in the
following cases:
1. The plant varieties no longer maintain their
inherent characteristics and properties as at the time the protection titles
are granted;
2. The holders of the titles of protection of
new plant varieties voluntarily request a competent body to cancel the
protection titles.
3. When it is detected that the protection title
holders are not eligible subjects as prescribed in Article 5 of this Decree.
Article 17.- Effect of
the suspension and cancellation of protection titles
1. When the titles of protection of new plant
varieties are cancelled, their holders shall have to return the whole or part
of the expenses to the license purchasers to exploit the new plant varieties or
to the transferees of the right to own such protection titles.
2. The decisions to suspend or cancel the
protection titles ahead of time shall not affect the previous decisions of the
Court or the Minister of Agriculture and Rural Development regarding acts of
infringing upon the protection title holders�
rights.
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4. If the protection title holders disagree with
the decisions to suspend or cancel the effect of their protection titles, they
may lodge their complaints thereabout and shall have their complaints settled
according to the Law on Complaints and Denunciations.
Chapter V
STATE MANAGEMENT OVER
THE PROTECTION OF NEW PLANT VARIETIES
Article 18.- Tasks and
powers of the Ministry of Agriculture and Rural Development in the State
management over the protection of new plant varieties
1. The Ministry of Agriculture and Rural
Development shall perform the State management over the protection of new plant
varieties and have the responsibility to:
a/ Submit to the competent State bodies for
promulgation or promulgate according to its competence legal documents on the
protection of new plant varieties;
b/ Grant or withdraw protection titles;
c/ Organize the personnel training to meet the
requirements of the protection of new plant varieties;
d/ Supervise, inspect and handle violations of
the protection of new plant varieties;
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2. The Ministry of Agriculture and Rural
Development shall assign competent agencies to perform the State management
over the protection of new plant varieties, with the task of organizing and
guiding the compilation, receipt and appraisal of dossiers and submitting them
to the Ministrys leadership for granting, suspension, cancellation or
withdrawal of the titles of protection of new plant varieties.
Article 19.-
Responsibilities of the Peoples Committees of the provinces and centrally-run
cities
The Peoples Committees of the provinces and
centrally-run cities shall perform the function of State management over
activities of protecting new plant varieties in their respective localities and
have the following tasks:
1. Organizing the management of new plant
varieties within their respective localities under the guidance of the Ministry
of Agriculture and Rural Development;
2. Inspecting and handling according to their
competence acts of infringing upon the new plant variety copyright in their
respective localities.
Chapter VI
HANDLING OF VIOLATIONS
Article 20.- Handling
of violating organizations and individuals
Organizations and individuals that commit acts
of violating the law provisions on the protection of new plant varieties shall,
depending on the nature and seriousness of their violations, be sanctioned or
examined for penal liability before law; if causing serious damage, they shall
have to pay compensation according to law provisions.
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Those who abuse their positions and powers to
commit acts of violating the regulations on the protection of new plant
varieties, on the granting of protection titles, cover up violators of the
legislation on the protection of new plant varieties and commit other acts
contrary to the law provisions on the protection of new plant varieties, shall,
depending on the nature and seriousness of their violations, be disciplined or
examined for penal liability according to law provisions.
Chapter VII
IMPLEMENTATION
PROVISIONS
Article 22.-
Implementation effect
This Decree takes effect 15 days after its
signing; all previous provisions contrary to this Decree are all annulled.
Article 23.-
Implementation provisions
1. The Ministry of Agriculture and Rural
Development shall assume the prime responsibility and coordinate with the
Ministry of Science, Technology and Environment in guiding the implementation
of this Decree.
2. The Ministry of Finance shall have to
coordinate with the Ministry of Agriculture and Rural Development in guiding
the rates and use of charges and fees for the protection of new plant
varieties.
3. The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the Government
and the presidents of the Peoples Committees of the provinces and centrally-run
cities shall have to implement this Decree.-
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai