THE
GOVERNMENT
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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|
No.
88/2010/ND-CP
|
Hanoi,
August 16, 2010
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DECREES
DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE LAW ON
INTELLECTUAL PROPERTY AND THE LAW AMENDING AND SUPPLEMENTING A NUMBER OF
ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY REGARDING RIGHTS TO PLANT
VARIETIES
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the Law on Intellectual Property and the Law Amending and
Supplementing a Number of Articles of the Law on Intellectual Property;
At the proposal of the Minister of Agriculture and Rural Development,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
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Article 2.
Subjects of application This Decree applies to:
1. Vietnamese organizations and
individuals;
2. Foreign organizations and
individuals defined in Clause 18. Article 1 of the Law Amending and
Supplementing a Number of Articles of the Law on Intellectual Properly.
Article 3.
Interpretation of terms
In this Decree, the terms below
are construed as follows:
1. Applicant means an
organization or individual that has the right to file an application for
registration of rights to plant varieties under Clause 2. Article 164 of the
Law on Intellectual Properly;
2. Application submitter means
the applicant or a lawful representative of the applicant;
3. Plant variety protection
certificate holder means an organization or individual that is granted a plant
variety protection certificate;
4. Plant variety breeder means a
person who directly selects and breeds or discovers and develops a new plant
variety: in case two persons jointly select and breed or discover and develop a
new plant variety, they are co-breeders.
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6. Country having concluded with
Vietnam an agreement on the protection of rights to plant varieties means a
member country of the International Convention for the Protection of New Plant
Varieties (UPOV) or any country which has concluded with Vietnam a bilateral
agreement on the protection of rights to plant varieties.
7. Discovery and development of
a new plant variety:
a/ Discovery of a new plant
variety means the selection of natural variants;
b/ Development of a new plant
variety means the process of propagating and assessing these natural variants.
8. Detailed description of a
plant variety (referred to as variety description) means a document expressing
the characteristics of a plant variety made under the process of testing the
distinctness, uniformity and stability and certified by the plant variety
protection agency. A variety description is considered having been already
published when it has been made available to the public in such form as
scientific report or news report: or an article in newspapers, magazines or other
publications;
Article 4.
Responsibilities of ministries and ministerial-level agencies for the
protection of rights to plant varieties
1. The Ministry of Agriculture
and Rural Development shall perform the stale management of the protection of
rights to plant varieties nationwide and have the following responsibilities:
a/ To submit to competent
authorities for promulgation or to promulgate according to its competence legal
documents on the protection of rights to plant varieties and organize the
implementation;
b/ To grant, re-grant, withdraw,
invalidate or cancel plant variety protection certificates;
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d/ To define the organization,
functions, tasks and powers of the plant variety protection agency; to
designate and manage the operation of organizations and individuals conducting
technical tests of plant varieties;
e/ To disseminate and educate about
the law on protection of rights to plant varieties;
f/ To examine, inspect and
handle administrative violations in the protection of rights to plant
varieties:
g/ To undertake international
cooperation on the protection of rights to plant varieties;
h/ To manage activities of
representing rights to plant varieties; to accredit and expunge rights-to-plant
varieties representation service providers; to grant and withdraw-
rights-to-plant varieties representation practice certificates;
i/ To provide information and
make statistics on the protection of rights to plant varieties;
j/ To issue forms on the
protection of rights to plant varieties.
2. The Ministry of Finance shall
assume the prime responsibility for. and coordinate with the Ministry of
Agriculture and Rural Development in. guiding the collection, management and
use of charges and fees for the protection of rights to plant varieties.
3. The Ministry of Science and
Technology and other ministries, ministerial-level agencies and
government-attached agencies shall, within the scope of their assigned tasks
and powers, coordinate with the Ministry of Agriculture and Rural Development
in performing the state management of the protection of rights to plant
varieties.
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1. To organize the
implementation of policies and law on the protection of rights to plant
varieties.
2. To disseminate and propagate
the law on the protection of rights to plant varieties.
3. To examine, inspect and
handle administrative violations in the protection of rights to plant
varieties.
4. To direct People's Committees
of districts, provincial towns or cities in taking measures of state management
of the protection of rights to plant varieties in their localities.
Chapter II
ORDER OF AND PROCEDURES
FOR ESTABLISHING RIGHTS TO PLANT VARIETIES
Article 6.
Registration for the protection of rights to plant varieties selected and bred
or discovered and developed with state budget funds
1. For a plant variety which is
selected and bred or discovered and developed with state budget funds, the
ownership right to that plant variety shall be assigned by the State to the
organization directly selecting and breeding or discovering and developing that
plant variety, which shall file an application for registration for the
protection of rights to the plant variety and may perform the rights of a
protection certificate holder specified in Article 186 of the Law on
Intellectual Property.
2. For a plant variety which is
selected and bred or discovered and developed with different capital sources,
including state budget fund, the organization assigned by the State to use
slate funds which is directly engaged in the selection and breeding or discovery
and development of that plant variety shall be assigned to act as the owner of
the state fund portion and file a protection registration application
corresponding to the proportion of the state fund.
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1. Application submitters shall
ensure the truthfulness of information and documents provided to the plant
variety protection agency in the process of registering for the protection of
rights to plant varieties:
a/ All submitted documents must
be signed by the applicant or his/her representative and affixed with their
stamp (for organizations) for certification;
b/ All Vietnamese versions of
foreign-language documents must be authentic translations of original
documents.
2. Applicants shall take
responsibility for all consequences and obligations arisen from transactions
between their representatives and the plant variety protection agency.
3. Applicants' representatives
shall take responsibility before applicants for all consequences caused by the
declaration and supply of untruthful information in their transactions with the
plant variety protection agency. If causing damage, they shall pay
compensations.
Article 8.
Applications for registration for the protection of rights to plant varieties
1. An application for
registration for the protection of rights to a plant variety defined in Article
174 of the Intellectual Property Law shall be made in 2 sets and submitted to
the plant variety protection agency.
2. In addition to the documents
specified in Clauses 1. 2 and 3. Article 174 of the Law on Intellectual
Property, an application of an organization or individual from a country which
has concluded with Vietnam an agreement on the protection of rights to plant
varieties defined in Clause 18. Article 1 of the Law Amending and Supplementing
a Number of Articles of the Law on Intellectual Property that has no residence
address or production or business establishment in Vietnam shall be enclosed
with necessary and sufficient papers to certify its/his/ her nationality or
headquarters.
3. The application of an
organization or individual from a country other than those which have concluded
with Vietnam agreements on the protection of rights to plant varieties shall be
enclosed with documents evidencing its/his/her lawfully registered residence
address or office in another country which has concluded with Vietnam an
agreement on the protection of rights to plant varieties.
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To enjoy the priority right, an
application submitter whose application satisfies all the conditions for
claiming the priority right specified in Clause 1, Article 167 of the Law on
Intellectual Property shall carry out the following procedures:
1. Registering his/her claim for
the priority right in the protection registration declaration according to a
set form;
2. Paying the fee for
consideration of claims for the priority right;
3. Within ninety (90) days after
submitting an protection registration application, the application submitter
shall supply the following documents:
a/ Copy(ies) of previous
application(s), which is certified by the agency that has previously received
that protection registration application;
b/ Evidence proving that the
plant varieties registered in the two applications are the same, including the
plant variety description, its photos and other relevant documents (if any);
c/ Lawful copy of the document
on the transfer, inheritance or bequeathal of the priority right, if such right
is received from others.
Article 10.
Receipt of protection registration applications
1. The plant variety protection
agency shall receive applications by any of the following modes:
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b/ By post. In case an
application is sent by post, the submission date is the sending date shown in
the postmark;
c/ Via computer networks.
2. Upon receiving an
application, the plant variety protection agency shall stamp the application to
certify' the submission date, record the serial number of the application in
the register of received applications, and return one dossier set to the
application submitter.
3. The Ministry of Agriculture
and Rural Development shall guide the receipt of applications, modification,
supplementation and transfer of the right to file applications and the transfer
of applications for registration for the protection of rights to plant
varieties.
Article 11.
Formal examination of applications
1. Formal examination of an
application covers the following contents:
a/ Examination of the
application's completeness and validity;
b/ Examination of documents
enclosed with the application as prescribed in Article 174 of the Law on
Intellectual Property and Articles 6, 7. 8 and 9 of this Decree.
2. An application is invalid in
terms of form when if it falls in any of the following cases:
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b/ Documents enclosed with the
application are made not according to set forms or information declared in the
registration form is insufficient;
c/ Documents specified in Clause
2. Article 174 of the Law on Intellectual Property have not yet been translated
into Vietnamese;
d/ Documents enclosed with the
application are erased, torn or unreadable faded:
e/ Lacking lawful copies of
relevant documents;
f/ The application is filed by a
person who is unqualified to file applications. In case the registration right
belongs to different organizations and individuals, the consent of all
concerned organizations and individuals is required.
2. Handling of invalid
applications:
a/ The plant variety protection
agency may reject protection registration applications falling into the cases
specified at Point b. Clause 2. Article 176 of the Law on Intellectual
Property, and Point f. Clause 1 of this Article and notify in writing the
application submitters of the rejection;
b/ For applications falling into
the cases specified at Points a. b, c. d and e. Clause I of this Article, the
plant variety protection agency shall comply with Points b and c. Clause 3.
Article 176 of the Law on Intellectual Properly;
c/ The time limit of thirty (30)
days defined at Point b. Clause 3. Article 176 of the Law on Intellectual
Property shall be determined based on the postmark of the post office at which
the notice is received. In case the postmark is unreadable, that time limit is
forty-five (45) days, counting from the date the plant variety protection
agency sends the notice.
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The content examination of a
protection registration application specified in Article 178 of the
Intellectual Property Law covers:
1. Examination of the plant
variety denomination under Article 13 of this Decree;
2. Examination of the plant
variety novelty under Article 14 of this Decree.
3. Examination of the technical
test (DUS test) results under Article 19 of this Decree;
Article 13.
Examination of denominations of plant varieties
1. The plant variety protection
agency shall examine the properness of the proposed denomination of a plant
variety to those of plant varieties compared to the same species or a species
close to the species of that plant variety which have been recognized by
Vietnam or by any country which has concluded with Vietnam an agreement on the
protection of rights to plant varieties under Clause 20, Article 1 of the Law
Amending and Supplementing a Number of Articles of the Law on Intellectual
Property.
2. In case the denomination of a
plant variety registered for protection is improper, the plant variety
protection agency shall send a notice to the application submitter, requesting
the change of that denomination in accordance with regulations. Within thirty
(30) days after receiving such notice from the plant variety protection agency,
the application submitter shall propose a new denomination in conformity with
regulations. Past that time limit, if the application submitter fails to
propose an appropriate denomination, the plant variety protection agency may
reject the application.
3. If wishing to change the
denomination of a plant variety, the application submitter may. before the
grant of a protection certificate. request the change of the denomination and
concurrently propose a new denomination for the registered plant variety and
pay a fee according to regulations.
4. The plant variety protection
agency shall notify all information on plant variety denominations to competent
authorities of countries which have concluded with Vietnam agreements on the
protection of rights to plant varieties.
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Article 14.
Examination of novelty
1. Examination of novelty of a
plant variety registered for protection covers:
a/ Examination of information in
the protection registration declaration:
b/ Considering and responding to
feedback and complaints (if any) about the novelty of the plant variety
registered for protection after the application is published.
2. The novelty of a plant
variety registered for protection shall not be lost if. within one year before
the date of submitting the application, reproductive materials of that plant
variety have been transferred by the applicant or a person authorized by the
applicant for testing or trial production in Vietnam to serve the recognition
of that plant variety according to regulations.
Article 15.
Forms of technical test
Technical tests shall be
conducted in any of the following forms:
a/ Technical test conducted by a
testing
organization or individual
designated by the Ministry of Agriculture and Rural Development:
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c/ Using available technical
test results supplied by the application submitter;
d/ Signing a contract with an
organization or individual from a UPOV member country to conduct technical test
or purchase available test results.
2. The plant variety protection
agency shall base itself on the registration application and practical
conditions to select any of the forms of technical tests specified in Clause 1
of this Article.
3. Technical tests conducted in
the Vietnamese territory must comply with the DUS testing process promulgated
by the Ministry of Agriculture and Rural Development: for the case specified at
Point b. Clause 1 of this Article. In case such a process has not been
promulgated, these tests may follow the UPOV testing process.
4. For cases defined at Point a.
Clause 1 of this Article, if the test results are unsatisfactory. the
application submitter may request the organization or individual that has
conducted the test or another designated testing organization or individual to
conduct a second test and shall pay a fee as required. A request for a second
test must be made in writing, clearly stating the reasons for and evidence
supporting that request.
5. If the results of the second
test show that the reasons and evidence furnished by the applicant are correct,
the fee mentioned in Clause 4 of this Article shall be refunded to the
application submitter.
Article 16.
Conditions on designated testing organizations and individuals
1. An organization or individual
designated to conduct technical tests must meet the following conditions:
a/ Having the functions of
testing or researching into and creating plant varieties;
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c/ Having special-use equipment
or having signed contracts with other organizations and individuals to analyze
and assess criteria according to testing requirements applicable to the plant
species designated for testing;
d/ Having at least 1 technician
who possesses a university degree in a specialized major and a certificate of
training in technical tests or has been directly engaged in technical tests for
at least 2 years;
e/ Having a collection of sample
varieties of widely known plant varieties of the species designated for
testing.
2. The Ministry of Agriculture
and Rural Development shall guide in detail the conditions on organizations and
individuals designated to conduct technical tests.
Article 17,
Conditions on technical tests conducted by application submitters
1. Application submitters may
themselves conduct technical tests of plant varieties registered for protection
in the Vietnamese territory if they fully meet the following conditions:
a/ Having a location and land
area suitable for carrying out testing experiments according to testing
requirements applicable to the plant species to be tested;
b/ Having special-use equipment
or having signed contracts with other organizations and individuals to analyze
and assess criteria according to testing requirements applicable to the plant
species to be tested;
c/ Having appropriate control
varieties to be cultivated together with to-be-tested varieties in testing
experiments;
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2. The Ministry of Agriculture
and Rural Development shall guide in detail conditions for application
submitters to conduct tests by themselves and the field inspection of testing
experiments conducted by application submitters.
Article 18.
Submission of sample varieties
1. The plant variety protection
agency shall request application submitters in cases subject to testing
specified at Point a. Clause 1. Article 15 of this Decree to submit sample
varieties to agencies conducting technical tests at least twenty (20) days
before a crop season.
2. Application submitters in
cases specified at Points b. c and d. Clause 1. Article 15 of this Decree are
not required to submit sample varieties to the agencies conducting technical
tests but are required to submit them to the sample variety-keeping agency
under Clause 3 of this Article.
3. Sample varieties of
registered varieties mentioned in Clause 2 of this Article shall be kept as
follows:
a/ Sample varieties in seeds
shall be kept at a sample variety-keeping agency designated by the Ministry of
Agriculture and Rural Development;
b/ Application submitters shall
keep sample varieties of asexual plant species by themselves and clearly
indicate the keeping place in their protection registration applications.
4. Upon receiving a sample
variety, the agency conducting technical tests or the variety-keeping agency
shall check the quality of that sample variety and issue a written
certification if it satisfies set requirements. If the sample variety fails to
satisfy set requirements, the agency conducting technical tests or the
variety-keeping agency may request the application submitter to supply the
sample variety again.
5. Within twenty (20) days after
receiving a sample variety, the sample variety-receiving agency shall test its
quality and notify the lest results to the application submitter. If the sample
variety is not up to standards set for the testing process, the sample
variety-receiving agency shall request the application submitters to supply the
sample variety again. Within thirty (30) days after receiving the request, the
application submitter shall supply an sample variety up to standards.
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7. The Ministry of Agriculture
and Rural Development shall guide in detail the time limits for submission,
management and use of sample varieties.
Article 19.
Appraisal of technical test results
1. Reports on technical lest
results, including plant variety descriptions, shall be made according to a set
form.
2. Within forty-five (45) days
after the technical test completes, the agency conducting technical tests or
the application submitters defined at Point b. Clause 1, Article 15 of this
Decree shall send reports on technical test results to the plant variety
protection agency.
3. The plant variety protection
agency shall appraise technical test results under Clause 3, Article 178 of the
Law on Intellectual Property. When necessary, the Ministry of Agriculture and
Rural Development shall set up a specialized council to appraise technical test
results. The time of appraisal must not exceed sixty (60) days after such a
specialized council is set up.
Article 20.
Grant of plant variety protection certificates
1. The Minister of Agriculture
and Rural Development shall decide to grant plant variety protection certificates
to plant varieties registered for protection which satisfy the conditions
prescribed in Articles 159. 161 and 162 of the Law on Intellectual Property Law
and Clauses 19 and 20. Article 1 of the Law Amending and Supplementing a Number
of Articles of the Law on Intellectual Property. A decision on the grant of a
protection certificate must be published in the Agriculture and Rural
Development Ministry's plant variety magazine within thirty (30) days after its
signing.
2. Past the time limit of thirty
(30) days after a decision on the grant of a plant variety protection
certificate is published in the plant variety magazine, if receiving no written
objection or complaint about the grant of the protection certificate, the plant
variety protection agency shall grant a plant variety protection certificate to
the application submitter and record it in the national register of protected
plant varieties.
3. Within thirty (30) days after
a decision on the grant of a plant variety protection certificate is published
in the plant variety magazine, if the plant variety protection agency receives
written objections or complaints about the grant of the plant variety
protection certificate, it shall handle them under Article 184 of the Law on
Intellectual Property.
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5. Application submitters shall
pay fees and charges for the grant of plant variety protection certificates
according to regulations. The holder of a protection certificate which is torn,
damaged or lost or changes hand may apply for re-grant or renewal thereof and
shall pay a fee according to regulations.
6. The Ministry of Agriculture
and Rural Development shall guide in detail procedures for the grant and
re-grant of plant variety protection certificates.
Article 21.
Invalidation and restoration of validity of plant variety protection
certificates
1. In case a plant variety
protection certificate is invalidated under Point a. Clause 1, Article 170 of
the Law on Intellectual Property, the plant variety protection agency shall
effect the invalidation as follows:
a/ Within thirty (30) days after
receiving any third party's written request for invalidation of a plant variety
protection certificate, the plant variety protection agency shall complete the
verification of information in the written request and notify the plant variety
protection certificate holder of the verification results. A request for
invalidation of a plant variety protection certificate must be made in writing
and enclosed with evidence proving that the plant variety no longer satisfies
the uniformity and stability requirements as it did by time of granting, and a
charge for the second test must be paid (for cases defined at Point c. Clause 1
of this Article).
b/ Past thirty (30) days after
receiving a notice from the plant variety protection agency on feedbacks as
prescribed at Point a. Clause 1 of this Article, if the plant variety
protection certificate holder still fails to file a written objection, the Ministry
of Agriculture and Rural Development shall issue a decision to invalidate that
plant variety protection certificate. The time of invalidation is the date of
signing a decision to invalidate the certificate and shall be published in the
specialized plant variety magazine.
c/ If the plant variety
protection certificate holder files a written objection, the plant variety
protection agency shall request it/him/her to carry out procedures for a second
test as specified at Clause 4. Article 15 of this Decree. If the results of the
second test conducted by a testing agency defined at Point a, Clause 1, Article
15 of this Decree show that the plant variety in question no longer satisfies
the uniformity or stability requirement as it did by the time the certificate
is granted, the plant variety protection agency shall carry out invalidation
procedures specified at Point b of this Clause and refund the testing charge to
the party requesting invalidation of the protection certificate.
2. For cases defined at Point a.
Clause 1, Article 170 of the Law on Intellectual Property, the Ministry of
Agriculture and Rural Development shall, basing itself on the results of the
second test, decide to restore or not to restore the validity of plant variety
protection certificates.
Article 22.
The national register
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2. The plant variety protection
agency shall compile and keep the national register of protected plant
varieties. All information on plant variety protection certificates and their
changes occurred in the validity durations of plant variety protection
certificates shall be recorded in the national register of protected plant
varieties.
3. All organizations and
individuals may request the plant variety protection agency to provide
information in the national register of protected plant varieties and must pay
fees and charges according to regulations.
Chapter
III
RIGHTS AND OBLIGATIONS
OF PROTECTION CERTIFICATE HOLDERS
Article 23.
Expansion of rights of plant variety protection certificate holders
Methods of impacting a protected
plant variety (original variety) to create a new plant variety with
characteristics different from those of the original variety specified at Point
1, Clause 23, Article 1 of the Law Amending and Supplementing a Number of
Articles of the Law on Intellectual Property include: transgenesis.
back-breeding, selection of natural, artificial or somatogenic variants or
selection of varied individuals from a population of the original variety.
Article 24.
Obligations of plant variety protection certificate holders
According to Clause 1. Article
191 of the Law on Intellectual Property, a protection certificate holder has
the following obligations:
1. To pay a remuneration to the
plant variety breeder by any of the following modes:
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b/ If no agreement is reached,
the remuneration paid to the breeder is 35% of the amount indicated in the
contract on the assignment or transfer of rights to the plant variety, after
paying all taxes, according to regulations. In case the protection certificate
holder uses the protected plant variety for production or trading purposes,
it/he/she shall pay to the breeder 10% of the obtained benefits, except for
cases in which the protection certificate holder is the transferee;
c/ For a plant variety selected
and bred or discovered and developed with state budget funds, the protection
certificate holder shall pay a remuneration to the breeder according to an
internal regulation. If the internal regulation contains no provision on
payment of remuneration. Point b. Clause 1 of this Article shall apply;
d/ For a plant variety selected
by co-breeders, the remuneration level specified in Clause 1 of this Article is
the level paid to all co-breeders. Co-breeders shall reach an agreement on the
sharing of the remuneration amount paid by the protection certificate holder;
e/ The obligations to pay
remuneration to plant variety breeders will exist throughout the term of
protection of the plant varieties, except cases in which the protection plant
varieties are transferred.
2. To pay a fee for maintaining
the validity of the plant variety protection certificate to the plant variety protection
agency within three (3) months after the grant of the protection certificate,
for the first year of validity, or within the first month of the subsequent
year of validity.
3. To preserve the protected
plant variety and supply information, documents and reproductive materials of
the protected plant variety at the request of the plant variety protection
agency: and to maintain the stability of the protected plant variety according
to its characteristics described at the time of granting the plant variety
protection certificate.
Chapter IV
LICENSING AND ASSIGNMENT
OF RIGHTS TO PROTECTED PLANT VARIETIES
Article 25.
Contents of contracts on the licensing or assignment of rights to protected
plant varieties
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a/ Full names and addresses of
the licensor and licensee;
b/ Licensing grounds;
c/ The licensing scope, covering
limitations on use rights and territorial limitations;
d/ The licensing duration;
e/ The licensing price;
f/ Rights and obligations of the
licensor and licensee;
g/ Liabilities for breaches of
the contract.
2. A contract on the assignment
of rights to a protected plant variety has the following details:
a/ Full names and addresses of
the assigner and the assignee:
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c/ Contents of the assignment of
rights to the plant variety;
d/ The assignment price and mode
of payment:
e/ Rights and obligations of the
assignor and assignee;
f/ Liabilities for breaches of
the contract.
Article 26.
Assignment of rights to protected plant varieties
1. After finalizing a contract
on the assignment of rights to a plant variety in accordance with law. the
assignor shall submit a dossier of registration for the assignment contract to
the plant variety protection agency and pay a fee according to regulations.
2. A dossier of registration for
a contract on the assignment of rights to a plant variety comprises:
a/ Two registration declaration
forms, made according to a set form;
b/ Two original or lawful copies
of the contract. Contracts must be made in Vietnamese or translated into
Vietnamese, bearing the signatures of involved parties on each page or a seal
on every two adjoining pages;
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d/ The written consent of
co-owners, for plant varieties under joint ownership:
e/ Charge and fee payment
documents;
f/ For plant varieties created
with state budget funds, documents evidencing the compliance with Clause 1. Article
27 of this Decree are required.
3. The plant variety protection
agency shall examine the registration dossier within thirty (30) days after the
receiving the application in order to determine its validity.
4. In case the registration
dossier is valid and flawless, the Minister of Agriculture and Rural
Development shall decide to re-grant a plant variety protection certificate,
recognizing the assignee as a new owner, record the assignment of the ownership
rights to the plant variety protection certificate in the national register of
protected plant varieties and publish such assignment in the specialized plant
variety magazine;
5. In case the registration
dossier is invalid or flawed, the plant variety protection agency shall notify
in writing these flaws to the dossier submitter and set a time limit of thirty
(30) days from the date of signing this notice for the dossier submitter to
correct these flaws. Past this time limit, if the dossier submitter fails to
correct these flaws, the examination of the registration dossier shall
terminate.
Article 27.
Licensing or assignment of rights to plant varieties created and bred or
discovered and developed with state budget funds
1. The assignment of rights to a
plant variety created or discovered and developed with state budget funds
complies with the Law on Technology Transfer and guiding documents.
2. The management and use of
after-tax proceeds from the licensing or assignment of rights to plant
varieties created and bred or discovered and developed with state budget funds
comply with following regulations:
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b/ For plant varieties created
or discovered and developed with different capital sources, including state
budget funds, the management and use of the proceeds corresponding to the state
capital portion comply with Point a. Clause 2 of this Article.
Article 28.
Competence to decide on the compulsory licensing of rights to use plant
varieties
1. The Ministry of Agriculture
and Rural Development shall decide on the compulsory licensing of protected
plant varieties of agricultural, forest and aquatic species.
2. The Ministry of Agriculture
and Rural Development shall assume the prime responsibility for, and coordinate
with the Ministry of Health in. deciding on the compulsory licensing of
protected plant varieties used for medicinal purposes.
Article 29.
Cases of compulsory licensing of protected plant varieties to meet urgent
social needs
1. Compulsory licensing of
protected plant varieties to meet urgent social needs prescribed at Point a.
Clause 1, Article 195 of the Law on Intellectual Property applies to cases of
dealing with emergency circumstances such as natural disaster, epidemic, war
and widespread environmental pollution.
2. The Ministry of Agriculture
and Rural Development shall publicly announce the needs for plant varieties,
denominations of plant varieties, use purposes and quantity of varieties
needed, licensing scope and duration and time limit for submission of
registration dossiers.
Article 30.
Principles of determining compensation levels for compulsory licensing of
protected plant varieties
The compensation level for a
compulsory licensing shall be determined on the following principles:
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2. In case no agreement is
reached, the compensation level shall be determined based on:
a/ The value of the latest
contract for licensing of the same variety to another subject, corresponding to
the licensing duration and the quantity of the compulsorily licensed variety:
b/ The profit generated by the
plant variety protection certificate holder from the use of that plant variety,
corresponding to the quantity of the licensed variety and the licensing
duration:
c/ In case neither of the
grounds specified at Points a and b of this Clause is available, the
compensation level shall be determined based on actual expenses for creating
that plant variety.
3. The Ministry of Agriculture
and Rural Development shall request an organization or assume the prime
responsibility for. and coordinate with concerned ministries and branches in. setting
up councils to evaluate compensation levels for cases defined in Clause 2 of
this Article on a case-by-case basis.
Article 31.
Procedures for compulsory licensing of protected plant varieties under
decisions
1. Organizations and individuals
that wish to use plant varieties shall file their dossiers of registration for
compulsory licensing of plant varieties under decisions as specified at Point
a. Clause 1. Article 195 of the Law on Intellectual Property. Organizations and
individuals that fail to reach agreement on the licensing of plant varieties or
meet with obstacles in competition may file dossiers of registration for
compulsory licensing of plant varieties under Points b and c. Clause 1. Article
195 of the Law on Intellectual Property.
2. A dossier for licensing of a
plant variety comprises:
a/ Two written requests for
compulsory licensing of a plant variety, made according to a set form, clearly
stating the scope and duration of the compulsory licensing;
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c/ Requests evidencing the
licensee's financial capability to pay compensation to the licensor according
to regulations;
d/ Documents evidencing the request
for compulsory licensing of the plant variety is supported by sound grounds as
prescribed by law. for cases defined at Points b and c. Clause 1, Article 195
of the Law on Intellectual Property;
e/ A power of attorney, for
cases of filing dossiers through a representative;
f/ Fee payment document.
3. The order of and procedures
for compulsory licensing of a protected plant variety under Point a. Clause 1.
Article 195 of the Law on Intellectual Property:
a/ The plant variety protection
agency shall receive a dossier specified in Clause 2 of this Article;
b/ Within fifteen (15) days
after receiving the dossier, the Ministry of Agriculture and Rural Development
shall issue a decision on compulsory licensing of the plant variety and notify
its decision to the licensor and licensee for compliance.
4. The order of and procedures
for compulsory licensing of a protected plant variety under Point b or c.
Clause 1, Article 195 of the Law on Intellectual Property:
a/ The plant variety protection
agency shall receive a dossier specified in Clause 2 of this Article;
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c/ Within 30 (thirty) days after
the date of issuance of the notice, the holder of the exclusive rights to use
the plant variety shall make a written reply;
d/ In case the holder of
monopolistic rights to use the plant variety rejects the compulsory licensing
request, within 15 (fifteen) days, the Ministry of Agriculture and Rural
Development shall issue a written reply to the requestor;
e/ The Ministry of Agriculture
and Rural Development shall issue a decision on compulsory licensing of the
plant variety if the request for compulsory licensing is conformable with
regulations and shall notify its decision to the licensor and licensee for
compliance;
f/ If the request for compulsory
licensing of a plant variety is not supported by sound grounds as specified at
Point b and c. Clause 1. Article 195 of the Law on Intellectual Property, it
shall issue a written reply clearly stating the reason for refusal.
Article 32.
Modification, invalidation and cancellation of decisions on compulsory
licensing of protected plant varieties
1. According to Clause 2.
Article 197 of the Law on Intellectual Property, holders of the exclusive
rights to use plant varieties may request competent agencies defined in Article
29 of this Decree to modify, invalidate or cancel decisions on compulsory
licensing of protected plant varieties and shall pay charges and fees according
to regulations.
2. A decision on compulsory
licensing of a plant variety may be:
a/ Modified upon changes in the
conditions which lead to its issuance;
b/ Invalidated when the
conditions which lead to its issuance no longer exist;
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3. A dossier of request for
modification, invalidation or cancellation of a decision on compulsory
licensing of a protected plant variety comprises the following documents:
a/ A written request for
modification of the licensing price, the quantity of plant varieties to be
licensed, licensing scope and time; or request for invalidation or cancellation
of a decision on compulsory licensing of a protected plant variety:
b/ Documents evidencing that the
modification, invalidation or cancellation of the compulsory licensing decision
is based on grounds specified in Clause 2 of this Article without causing any
harm to the licensee;
c/ A power of attorney, for
requests filed via a representatives;
d/ Fee payment document.
4. Responsibilities of state
agencies competent to decide on compulsory licensing of protected plant
varieties:
a/ To receive dossiers specified
in Clause 3 of this Article;
b/ Within fifteen (15) days
after receiving a valid dossier, to examine and issue a decision to modify,
invalidate or cancel the decision on compulsory licensing of a plant variety:
c/ In case the request for
modification, invalidation or cancellation of a decision on compulsory
licensing of a plant variety is not supported with sound grounds as specified
in Article 195 of the Law on Intellectual Property, to issue a written reply clearly
the reason for the refusal;
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Chapter V
REPRESENTATION OF RIGHTS
TO PLANT VARIETIES
Article 33.
Rights-to-plant varieties representation services
Rights-to-plant varieties representation
services include:
1. Representing organizations
and individuals before competent state agencies with regard to the
establishment and exercise of rights to plant varieties:
2. Providing consultancy on
matters related to procedures for establishing and exercising rights to plant
varieties:
3. Other services related to
procedures for establishing and exercising rights to plant varieties.
Article 34.
Scope of rights of representatives of rights to plant varieties
1. Rights-to-plant varieties
representation service providers shall provide services within the scope of
authorization and may re-authorize other rights-to-plant varieties
representation service providers to exercise these rights, if so agreed in
writing by the authorizer.
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3. A rights-to-plant varieties
representative are forbidden from taking the following actions:
a/ Acting as the representative
concurrently for disputing parties to rights to a plant variety;
b/ Withdrawing the application
for a protection certificate, announcing the abandonment of the protection or
withdrawing a complaint about the establishment of rights to plant varieties
without permission of the authorizer;
c/ Cheating or forcing clients
in the signing and performance of contracts on rights-to-plant varieties
representation services:
d/ Using or disclosing
information concerning protection registration applications not yet published
by the plant variety protection agency.
Article 35.
Responsibilities of representatives of rights to plant varieties
1. Rights-to-plant varieties
representatives shall:
a/ Notify the authorizer of
charges and fees related to procedures for establishing and exercising rights
to plant varieties: and representation service charges according to the charge
tariff registered with the plant variety protection agency;
b/ Keep secret information and
documents related to cases in which they act as representatives;
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d/ Protect the lawful rights and
interests of the represented party by timely responding to requirements of
competent state agencies regarding the establishment and exercise of rights to
plant varieties;
e/ Notify state management
agencies competent to establish and exercise rights to plant varieties of all
changes in names and addresses of and other information on the represented party
and the names, addresses and representative of the representing party.
2. Rights-to-plant varieties
representation service providers shall take civil liability for persons
performing rights-to-plant varieties representation services under their names.
3. Rights-to-plant varieties
representation service providers and individuals registering for
rights-to-plant variety representation service practice shall pay fees and
charges according to regulations.
Article 36.
Conditions for issuance of rights-to-plant varieties representation service
practice certificates
1. The Ministry of Agriculture
and Rural Development shall issue rights-to-plant varieties representation
service practice certificates to individuals satisfying all conditions
prescribed at Point 5, Clause 21. Article 1 of the Law Amending and
Supplementing a Number of Articles of the Law on Intellectual Property.
2. Individuals shall be
considered having completed a training course on the law on rights to plant
varieties, they have a university or postgraduate dissertation or thesis in
plant varieties.
3. The Ministry of Agriculture
and Rural Development shall specify programs of training on the law on rights
to plant varieties and the examination on the profession of representing rights
to plant varieties.
Article 37.
Accreditation and expunction of rights-to-plant varieties representation
service providers
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2. Rights-to-plant varieties
representation service providers shall be expunged from the national register
of rights-to-plant varieties representatives and published in the specialized
plant variety magazine in the following cases:
a/ They give up rights-to-plant
varieties representation services;
b/ They no longer satisfy
conditions prescribed at Points 2. 3. 4 and 5. Clause 21. Article 1 of the Law
Amending and Supplementing a Number of Articles of the Law on Intellectual
Property;
c/They seriously violate
provisions of Clause 3. Article 34 and Article 35 of this Decree:
d/ They commit serious mistakes
when providing rights-to-plant varieties representation services, causing harms
to the interests of the State and society;
e/ They abuse the capacity of
rights-to-plant varieties representatives to carry out activities outside the
scope of rights-to-plant varieties representation services defined in Clause 1,
Article 34 of this Decree.
3. A rights-to-plant varieties
representation service provider that has been expunged from the national
register of rights-to-plant varieties representative may be considered for
re-accreditation only after 3 years from the date of expunction.
4. The Ministry of Agriculture
and Rural Development shall guide the accreditation, re-accreditation and
expunction of rights-to-plant varieties representation service providers.
Article 38.
Grant and withdrawal of rights-to-plant varieties representation service
practice certificates
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2. A person with a
rights-to-plant varieties representation service practice certificate may have
his/her certificate withdrawn in the following cases:
a/ He/she gives up the
profession of rights-to-plant varieties representation;
b/ He/she no longer satisfies
the conditions prescribed at Point 5. Clause 21. Article 1 of the Law Amending
and Supplementing a Number of Articles of the Law on Intellectual Property;
c/ He/she commits a serious
violation of Clause 3. Article 34 or Article 35 of this Decree;
d/ He/she makes serious mistakes
while providing rights-to-plant varieties representation services, causing
harms to the interests of the State and society;
e/ He/she abuses the capacity of
rights-to-plant varieties representatives to carry out activities outside the
scope of rights-to-plant varieties representation services defined in Clause 1.
Article 34 of this Decree.
3. The re-grant of a rights-to-plant
varieties representation service practice certificate to a person whose
certificate has-been withdrawn shall be considered only after three (3) years
from the date of withdrawal.
4. The Ministry of Agriculture
and Rural Development shall guide the grant and withdrawal of rights-to-plant
varieties representation practice certificates.
Chapter VI
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Article 39.
Transitional provisions
1. Applications for plant
variety protection registration filed with the plant variety protection agency
before the effective date of this Decree shall be processed under relevant
legal documents on protection of plant varieties effective at the time of
filing.
2. Applications for plant
variety protection registration filed from the effective date of this Decree
comply with this Decree.
Article 40.
Effect
This Decree takes effect on
October 1, 2010, and replaces the Government's Decree No. 104/ 2006/ND-CP of
June 22. 2006, detailing and guiding a number of articles of the Law on
Intellectual Property regarding plant varieties.
Article 41.
Implementation provisions
Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, and
chairpersons of provincial-level People's Committees shall implement this
Decree.-
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