THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
104/2006/ND-CP
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Hanoi,
September 22, 2006
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF
ARTICLES OF THE INTELLECTUAL PROPERTY LAW REGARDING RIGHTS TO PLANT VARIETIES
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to November 29, 2005 Law No. 50/2005/QH11 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 that
have permanent residence addresses or establishments producing or trading in
plant varieties in Vietnam;
3. Organizations and individuals that are
citizens of countries which have concluded with Vietnam agreements on
protection of rights to plant varieties.
4. Foreign organizations and individuals that
are not citizens of countries which have concluded with Vietnam agreements on
protection of rights to plant varieties but have permanent residence addresses
or lawfully registered offices in the territory of a country which has
concluded with Vietnam an agreement on protection of rights to plant varieties.
Article 3.-
Interpretation of terms
In this Decree, the terms below are construed as
follows:
1. "Plant variety" referred to in this
Decree means a complete plant variety, or a propagating material or harvested
material of any plant variety belonging to an agricultural, forest or aquatic
plant species or a fungus species newly selected and bred or discovered and
developed from a plant species on the list of protected plant varieties;
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3. "Propagating material" means plant
organs capable of developing into a full-grown plant, such as seed, spore,
stem, root, seedling, grafted branch, grafted stemma, grafted plant, hypha,
tuber, fruit, bud, flower, tissue, cell or other organs of a plant;
4. "Harvested material" means a
full-grown plant or any plant organ obtained from the planting of a propagating
material of a plant variety;
5. "Formal examination" means the
examination of the completeness and validity of an application according to the
provisions of Article 10 of this Decree;
6. "Substantive examination" means the
examination of the novelty, distinctness, uniformity, stability and
denomination of a plant variety;
7. "Detailed description of a plant
variety" means a document expressing characteristics of a plant variety
made under the distinctness, uniformity and stability (DUS) test guidelines and
certified by the agency in charge of protection of plant varieties. A detailed
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 printed matters;
8. "Agency in charge of protection of plant
varieties" referred to in this Decree means the Office for Protection of
Plant Varieties at the Agriculture and Rural Development Ministry.
9. "Lawful representative" of a
foreign organization or individual registering for protection of plant
varieties in Vietnam means an organization or individual, including Vietnamese
citizens, foreign organizations or individuals having a production or business
establishment or a permanent residence address in Vietnam in accordance with
the law of Socialist Republic of Vietnam, that is authorized in writing by an
organization or individual owning a plant variety registered for protection to
register for protection of rights to that plant variety;
10. "Plant variety breeder" means a
person who directly performs part or whole of the work of selecting and
breeding or discovering and developing a new plant variety.
11. "Country having concluded with Vietnam
an agreement on protection of rights to plant varieties" means any country
which has concluded with Vietnam a bilateral agreement, or countries being
members of an inter-governmental organization which has concluded with Vietnam
an agreement on protection of rights to plant varieties.
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1. The Agriculture and Rural Development
Ministry shall perform the state management of protection of rights to plant varieties
nationwide, having the following responsibilities:
a/ To submit to competent authorities for
promulgation or to promulgate according to its competence legal documents on
protection of rights to plant varieties and organize the implementation thereof;
b/ To grant, withdraw, revoke or cancel plant
variety protection titles;
c/ To promulgate a list of protected plant
varieties; process and procedures of technical testing of plant varieties;
d/ To define the organization, functions, tasks
and powers of the agency in charge of protection of plant varieties;
e/ To organize the communication, education and
dissemination of 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 promote international cooperation on
protection of rights to plant varieties.
2. The Science and Technology Ministry, the
Fisheries Ministry, the Finance Ministry and other ministries,
ministerial-level agencies and government-attached agencies shall, within the
ambit of their assigned tasks and vested powers, coordinate with the
Agriculture and Rural Development Ministry in performing the state management
of protection of rights to plant varieties.
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1. To organize the implementation of the
policies and law on protection of rights to plant varieties.
2. To organize the dissemination and
popularization of the law on protection of rights to plant varieties.
3. To examine, inspect and handle administrative
violations to protect rights to plant varieties.
4. To direct People's Committees of districts,
provincial towns or cities in taking state management measures to protect
rights to plant varieties in their localities.
Chapter II
ORDER AND PROCEDURES OF
ESTABLISHMENT OF RIGHTS TO PLANT VARIETIES
Article 6.- Registrants
of protection of rights to plant varieties
1. Registrants of protection of rights to plant
varieties are defined in Clause 2, Article 164 of the Intellectual Property
Law.
2. When a plant variety is selected and bred or
discovered and developed with state budget capital or under a state-managed
project, the organization or individual that directly selects and breeds that
plant variety shall carry out the registration of protection of rights to that
plant variety.
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1. An application for registration of protection
of rights to a plant variety as defined in Article 174 of the Intellectual
Property Law shall be made in three sets and submitted to the agency in charge
of protection of plant varieties.
2. Apart from the documents specified in Clauses
1, 2 and 3, Article 174 of the Intellectual Property Law, the applications of
organizations or individuals of countries which have concluded with Vietnam
agreements on protection of rights to plant varieties as defined in Clause 2,
Article 157 of the Intellectual Property Law who have neither permanent
residence addresses nor production or business establishments in Vietnam shall
be enclosed also with necessary papers to constitute sufficient grounds for
certification of the nationality of those organizations or individuals.
3. If an applicant is not a citizen of a country
which has concluded with Vietnam an agreement on protection of rights to plant
varieties, he/she is required to show documents evidencing his/her permanent
residence address or lawfully registered office in another country which has
concluded with Vietnam an agreement on protection of rights to plant varieties.
Article 8.- Requirements
for applicants claiming priority right
To enjoy priority right, an applicant whose
application satisfies all the conditions for claiming priority right specified
in Clause 1, Article 167 of the Intellectual Property Law shall carry out the
following procedures:
1. Registering his/her claim for priority right
in the written registration for protection under regulations;
2. Paying the fee for consideration of claims
for priority right;
3. Within three months after the date of filing
of the protection registration application, an applicant shall supply the
following documents:
a/ Copies of all documents in support of the first
application, which are notarized or certified by the agency that has previously
received the protection registration application;
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Article 9.- Receipt of
protection registration applications
1. The agency in charge of protection of plant
varieties shall receive applications by one of the following modes:
a/ Directly from applicants or their lawful
representatives;
b/ By post. If an applicant files his/her
application by post, the filing date is the date the application reaches the
agency in charge of protection of plant varieties.
2. Upon receipt of an application, the agency in
charge of protection of plant varieties shall stamp the application to certify
the date of arrival, record the serial number of the application, make an entry
in the register of received applications, and send one set of these documents
to the applicant.
Article 10.- Formal
examination of applications
1. Examination time limit:
Within fifteen days after receiving an
application for registration of protection of a plant variety, the agency in
charge of protection of plant varieties shall complete the formal examination
of that application.
2. Formal examination of an application covers:
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Article 11.-
Applications invalid in terms of formality and handling of invalid applications
1. An application is invalid in terms of
formality when:
a/ The application lacks one of the documents
specified in Clause 1, Article 174 of the Intellectual Property Law and Article
8 of this Decree (for applications claiming priority right);
b/ Documents included in the application are
made improperly or information declared in the registration form is insufficient;
c/ The application is not written in Vietnamese;
d/ Documents in the application are erased,
modified, torn or unreadably faded;
e/ Copies of documents are neither notarized nor
certified by competent authorities;
f/ The plant variety described in the
application is not on the list of protected plant varieties promulgated at the
time of protection registration;
g/ The application is filed by a person who is
not entitled to file according to the provisions of Article 164 of the
Intellectual Property Law and Article 6 of this Decree.
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a/ The agency in charge of protection of plant
varieties shall reject protection registration applications falling into the
cases specified at Points f and g, Clause 1 of this Article and notify in
writing the applicants of the rejection;
b/ For applications falling into the cases
specified at Points a, b, c, d and e, Clause 1 of this Article, the agency in
charge of protection of plant varieties shall notify the applicants of contents
which need to be revised. Within thirty days after receiving such a notice, an
applicant shall correct errors in his/her application at the request of the
agency in charge of protection of plant varieties. Past that time limit, if the
applicant fails to correct errors or the corrected contents fail to satisfy
requirements, the agency in charge of protection of plant varieties may reject
the application;
c/ The time limit of thirty days specified at
Point b of this Clause is determined according to the postmark of the place
where the notice is received. If the postmark fades away, that time limit is
forty five days after the agency in charge of protection of plant varieties
sends the notice.
Article 12.-
Substantive examination of applications
The substantive examination of a protection
registration application provided for in Article 178 of the Intellectual
Property Law is carried out in the following order:
1. Examination of the plant variety denomination
according to Article 13 of this Decree;
2. Examination of the plant variety novelty
according to Article 14 of this Decree;
3. Technical test to assess the plant variety
distinctness, uniformity and stability according to Articles 15 and 16 of this
Decree;
4. Examination of technical test results according
to Article 19 of this Decree.
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1. Pursuant to Article 163 of the Intellectual
Property Law, the agency in charge of protection of plant varieties shall
examine the appropriateness of the proposed denomination of a plant variety to
that of a plant variety of the same species or a species close to the species
of denominated plant variety which has been recognized by Vietnam or by any
country which has concluded with Vietnam an agreement on protection of rights
to plant varieties. If the plant variety denomination registered for protection
is improper, the agency in charge of protection of plant varieties sends a
notice to the applicant, requesting the change of that plant variety denomination
in accordance with regulations.
2. Within thirty days after receiving such a
notice of the agency in charge of protection of plant varieties, the applicant
shall propose a new plant variety denomination in accordance with regulations.
Past that time limit, if the applicant fails to propose an appropriate
denomination, the agency in charge of protection of plant varieties may reject
the application.
3. If wishing to change the plant variety
denomination, the applicant shall, within the period from the filing date to
the date of grant of protection title, request the change of plant variety
denomination and concurrently propose a new denomination for the registered
plant variety and pay a fee according to regulations.
4. The agency in charge of protection of plant
varieties shall notify all information on plant variety denominations to
competent authorities of the countries which have concluded with Vietnam
agreements on protection of rights to plant varieties.
5. Official denominations of plant varieties are
those recognized at the time of issuance of decisions on grant of protection
titles for those plant varieties.
Article 14.-
Examination of novelty
Pursuant to Article 159 of the Intellectual
Property Law, the agency in charge of protection of plant varieties shall
examine the novelty of a plant variety registered for protection in the
following order:
1. Examining information in the written
declaration for protection registration;
2. Considering and responding to feedback and
complaints (if any) about the novelty of the plant variety registered for
protection after the application is published.
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A technical test specified in Clause 2, Article
178 of the Intellectual Property Law is conducted specifically as follows:
1. The agency in charge of protection of plant
varieties shall base itself on the practical conditions to select one of the
following forms of technical test:
a/ Technical test conducted by a qualified
testing agency defined in Article 16 of this Decree;
b/ Technical test conducted by an organization
or individual fully capable of conducting testing experiments;
c/ Using available test results supplied by the
breeder or from other sources.
2. Testing experiments must be conducted
according to procedures for testing the distinctness, uniformity and stability,
for the case specified at Point b, Clause 1 of this Article.
3. Technical test results must be finalized
according to a form set by the agency in charge of protection of plant
varieties. Organizations or individuals supplying technical test results
defined at Point c, Clause 1 of this Article shall take responsibility for
those results.
4. If the test results are unsatisfactory, the
applicant is entitled to request the agency in charge of protection of plant
varieties to conduct a second test and shall pay a fee as required, for the
cases specified at Points a and b, Clause 1 of this Article. A request for a
second test must be made in writing, clearly indicating the proper reason(s)
for and evidence supporting that request;
5. If the results from a second test show that
the reason(s) and evidence furnished by the applicant are right, the fee
mentioned in Clause 4 of this Article shall be refunded to the applicant.
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An agency conducting technical tests defined at
Point a, Clause 1, Article 15 of this Decree shall fully satisfy the following
conditions:
1. Having a location large enough for the
testing process and the required growth and development of each plant variety;
2. Having specialized equipment and facilities
satisfying the requirements of testing of each plant variety according to
regulations of competent state agencies;
3. Having technical staff professionally
qualified for the test or having conditions for employing such a staff.
Article 17.- Submission
of example varieties
1. The agency in charge of protection of plant
varieties shall request applicants that are subject to the test in the case
specified at Point a, Clause 1, Article 15 of this Decree to submit example
varieties at least twenty days before a crop season to agencies conducting
technical tests.
2. Applicants specified at Points b and c,
Clause 1, Article 15 of this Decree are not required to submit example varieties
to the agencies conducting technical test but are required to submit them to
the example variety-keeping agency for preservation according to the provisions
of Clause 3 of this Article. The deadline for submission of example varieties
is set by the agency in charge of protection of plant varieties.
3. The keeping of example varieties of
registered varieties mentioned in Clause 2 of this Article is conducted as
follows:
a/ An example variety in seeds is kept at the
example variety-keeping agency designated by a competent state agency;
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4. When necessary and upon the request of the
agency conducting technical tests, the agency in charge of protection of plant
varieties may request an applicant to supply example varieties of a variety
similar to the variety registered for protection, if the applicant is able to
do so.
5. Upon receipt of an example variety, the
agency conducting technical tests or the variety-keeping agency shall check the
quality of that example variety and issue a written certification if it
satisfies the set requirements. If the example variety fails to satisfy the set
requirements, the agency conducting technical tests or the variety-keeping
agency may request the applicant to supply the example variety again.
6. Within twenty days after receiving an example
variety, the example variety-receiving agency shall test the quality thereof
and notify the test results to the applicant. If the example variety is not up
to standards set for the testing process, the example variety-receiving agency
requests the applicant to supply the example variety again. Within thirty days
after receiving the request, the applicant shall supply an example variety up
to standards.
7. The example variety-keeping agency shall
ensure the safety of kept example varieties. When properly requested by
applicants, the example variety-keeping agency shall keep secret information on
kept example varieties.
Article 18.- Reports on
technical test results
Within thirty days after the completion of a
technical test, the agency conducting the technical test defined at Points a
and b, Clause 1, Article 15 of this Decree shall send a report on the technical
test results to the agency in charge of protection of plant varieties.
Article 19.- Assessment
of technical test results
1. Within ninety days after receiving technical
test results, the agency in charge of protection of plant varieties shall
complete the assessment of those results.
2. If facing professional difficulties, the
Agriculture and Rural Development Ministry shall set up a specialized council
to assess technical test results. The time limit for assessment does not exceed
sixty days after such a specialized council is set up.
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1. If examination results affirm that a plant
variety registered for protection satisfies the conditions specified in
Articles 159, 160, 161, 162 and 163 of the Intellectual Property Law, the
agency in charge of protection of plant varieties shall propose the Agriculture
and Rural Development Minister to sign a decision on grant of a plant variety
protection certificate and publish it in the Agriculture and Rural Development
Ministry's specialized magazine on plant varieties.
2. Past the time limit of thirty days after a
decision on grant of a plant variety protection certificate is published in the
specialized magazine on plant varieties, if receiving no written objection or
complaint about the grant of protection certificate, the agency in charge of
protection of plant varieties shall grant a plant variety protection
certificate to the applicant and record it in the national register of
protected plant varieties.
3. Within thirty days after a decision on grant
of a plant variety protection certificate is published in the specialized
magazine, if the agency in charge of protection of plant varieties receives
written objections or complaints about the grant of the plant variety
protection certificate, it shall handle them according to the provisions of
Article 184 of the Intellectual Property Law and Article 24 of this Decree.
4. For a plant variety protection certificate,
only one (01) original is granted. If wishing to have more than one copy of
that protection certificate, the applicant shall make a prior registration
therefor with the agency in charge of protection of plant varieties. The forms
of protection certificates and the national register of protected plant
varieties are specified in Article 168 of the Intellectual Property Law.
5. Applicants 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.
Article 21.-
Termination of validity of plant variety protection certificates
1. If a plant variety protection certificate has
its validity terminated under Point a, Clause 1, Article 170 of the
Intellectual Property Law, the agency in charge of protection of plant
varieties shall effect the termination as follows:
a/ Within thirty days after receiving any third
party's written request for termination of the validity of a plant variety
protection certificate, the agency in charge of protection of plant varieties
shall complete the verification of information supplied in that written request
and notify the holder of the plant variety protection certificate of the
verification results. A request for termination of the validity of a plant
variety protection certificate must be made in writing and supported by
evidence proving that the protected plant variety fails to satisfy the
uniformity and stability requirements by time of grant of the protection
certificate, and the charge for the second test must be paid (when a second
test is necessary). If the results of the second test conducted at the request
of the holder of a plant variety protection certificate show that the reasons
for the request for termination of the validity of that protection certificate
are right, the charge for the second test shall be refunded to the requester.
b/ Past the time limit of thirty days after
receiving a notice of the agency in charge of protection of plant varieties on
the feedback, if the holder of a plant variety protection certificate fails to
file a written objection, the Agriculture and Rural Development Ministry shall
issue a decision on termination of the validity of that protection certificate.
The time of validity termination is the date on which the decision on
termination of validity of the protection certificate is published in the
specialized magazine on plant varieties.
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2. If facing difficulties in making a decision
on termination of the validity of a protection certificate, the Agriculture and
Rural Development Ministry shall set up a specialized council to provide
consultations on matters related to the termination of the validity of the
protection certificate.
Article 22.-
Restoration of validity of plant variety protection certificates
1. Basing itself on the results of a second
test, the Agriculture and Rural Development Ministry shall decide to restore or
not to restore the validity of a plant variety protection certificate, for the
case specified at Point a, Clause 1, Article 170 of the Intellectual Property
Law.
2. Basing itself on the results of the remedy of
the reasons for validity termination as specified in Clause 5, Article 170 of
the Intellectual Property Law, the Agriculture and Rural Development Ministry
shall decide to restore or not to restore the validity of a plant variety
protection certificate, for those plant varieties with their protection
certificates' validity terminated under Points b, c and d, Clause 1, Article
170 of the Intellectual Property Law.
Article 23.-
Invalidation of plant variety protection certificates
1. When there exist sufficient grounds to
determine that a plant variety falls into one of the cases specified in Clause 1,
Article 171 of the Intellectual Property Law, the Agriculture and Rural
Development Ministry shall decide to invalidate the protection certificate for
that plant variety.
2. When an organization or individual files a
request for the invalidation of a plant variety protection certificate, the
Agriculture and Rural Development Ministry shall, after considering the request
and arguments of involved parties, decide to invalidate or not to invalidate
that protection certificate and notify its decision to the applicant.
Article 24.- Grounds
for complaining about the grant of protection certificates
When complaining about the grant or non-grant of
a plant variety protection certificate, an organization or individual shall
base itself/himself/herself on one of the following grounds:
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2. A plan variety protection certificate is
granted to a person who does not have the right to receive such a certificate,
except when that right is assigned to a right holder;
3. A protected plant variety is neither new nor
distinct from others;
4. A protected plant variety is neither uniform
nor stable;
5. A plant variety denomination is
inappropriate.
Article 25.- National
registration
The agency in charge of protection of plant
varieties shall compile and keep the national register of protected plant
varieties. All information on plant variety protection certificates and changes
within the valid term of plant variety protection certificates are recorded in
the national register of protected plant varieties.
Chapter III
RIGHTS AND OBLIGATIONS
OF PROTECTION CERTIFICATE HOLDERS AND BREEDERS OF PLANT VARIETIES
Article 26.- Rights of
plant variety protection certificate holders
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2. The rights of plant variety protection
certificate holders provided for in Clause 1 of this Article apply to plant
varieties specified in Article 187 of the Intellectual Property Law.
Article 27.- Claims for
provisional protection rights
Owners of plant varieties are entitled to
provisional protection rights for a term defined in Clause 1, Article 189 of
the Intellectual Property Law. When a person uses a plant variety for
commercial purposes in the term of provisional protection rights, the owner of
that plant variety shall carry out procedures specified in Clauses 2 and 3,
Article 189 of the Intellectual Property Law. To enjoy provisional rights to a
plant variety, the protection certificate holder may, as from the time of being
granted the protection certificate, claim those provisional rights and shall
carry out the following procedures:
1. Reaching an agreement on compensation level
with the party that has exploited the plant variety for commercial purposes.
2. When no agreement is reached, the protection
certificate holder may file a petition to a competent agency defined in Article
200 of the Intellectual Property Law to request the settlement. A petition to
claim provisional protection rights must be made in writing and supported by
evidence proving that he/she has all conditions to enjoy the provisional
protection rights.
Article 28.- Limitations
on rights to plant varieties
According to the provisions of Article 190 of
the Intellectual Property Law on limitations on rights of plant variety
protection certificate holders, the following acts are not regarded as
infringement of rights to a protected plant variety:
1. Using that plant variety for personal and
non-commercial purposes;
2. Using that plant variety for scientific
research purpose;
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4. Using by individual production households the
products harvested from that protected plant variety for propagation and
planting by themselves for subsequent crops on their land areas.
Article 29.-
Obligations of plant variety protection certificate holders
According to the provisions of Clause 1, Article
191 of the Intellectual Property Law, a protection certificate holder has the
following obligations:
1. To pay a remuneration to a plant variety
breeder by one of the following modes:
a/ Under an agreement between them;
b/ If no agreement is reached, the remuneration
payable to the breeder is equal to 30% of the collected copyright royalty.
c/ For a plant variety selected and bred or
discovered and developed with the state budget funds, the protection
certificate holder shall pay a remuneration to the breeder according to an
internal regulation. If such an internal regulation contains no provision on
payment of remuneration, the protection certificate holder shall pay an amount
equal to 30% of the collected royalty to the breeder.
2. To pay the fee for maintenance of the
validity of the plant variety protection certificate to the agency in charge of
protection of plant varieties within three months after the grant of the
protection certificate, for the first valid year, or within the first month of
the subsequent valid years.
3. To preserve the protected plant variety,
supply information, documents and propagating materials of the protected plant
variety at the request of the agency in charge of protection of plant
varieties; to maintain the stability of the protected plant variety according
to its characteristics described at the time of grant of the plant variety
protection certificate.
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According to the provisions of Clause 2, Article
191 of the Intellectual Property Law and for the valid term of a plant variety
protection certificate, a breeder is obliged under an agreement with the
protection certificate holder to maintain the protected plant variety according
to its characteristics described at the time of grant of the protection
certificate.
Chapter IV
ASSIGNMENT OR TRANSFER
OF RIGHTS TO PROTECTED PLANT VARIETIES
Article 31.- Procedures
of registration of contracts for assignment of rights to protected plant
varieties
1. After finalizing a contract for assignment of
rights to a plant variety in accordance with law, the assignee shall register
the assignment contract with the agency in charge of protection of plant
varieties and pay a fee according to regulations.
2. The agency in charge of protection of plant
varieties shall receive the written registration of the assignment contract and
carry out the procedures for notifying the assignee of the certification of
rights of the plant variety protection certificate holder.
Article 32.- Transfer
or assignment of rights to state-owned protected plant varieties
1. The assignment of rights to a state-owned
protected plant variety must be conducted in accordance with the law on
management of state assets.
2. The management and use of proceeds from
contracts for transfer or assignment of rights to protected plant varieties
shall comply with the provisions of the Government's Decree No. 43/2006/ND-CP
of April 25, 2006, providing for the right to autonomy and accountability for
the task performance, organizational apparatus, payroll and finance of public
non-business units.
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The compulsory licensing of protected plant
varieties is provided for at Point a, Clause 1, Article 195 of the Intellectual
Property Law.
Urgent social needs which must be satisfied mean
the needs for overcoming such emergency circumstances as natural disasters,
epidemics, wars and widespread environmental pollution.
Article 34.- Bases for
determination of compensation levels for compulsory licensing of protected
plant variety
The compensation level for a compulsory
licensing shall be determined on the following grounds:
1. The agreement between the licensor and the
licensee;
2. Where no agreement is reached, the
compensation level shall be calculated on the following bases:
a/ The value of the latest contract for
licensing of the same variety to another subject according 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 exploitation of copyright to that plant
variety, corresponding to the quantity of the licensed variety and the
licensing duration.
3. The agencies competent to decide on licensing
as defined in Article 35 of this Decree shall assume the prime responsibility
for, and coordinate with concerned ministries and branches in, examining
specific compensation plans for the cases specified in Clause 2 of this
Article.
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1. The Agriculture and Rural Development
Ministry shall issue decisions on compulsory licensing of protected varieties
of agricultural and forest plant species.
2. The Fisheries Ministry shall issue decisions
on compulsory licensing of protected varieties of aquatic plant species.
3. The Health Ministry shall issue decisions on
compulsory licensing of protected varieties of plant species used for medicinal
purpose.
4. The agencies specified in Clauses 1, 2 and 3
of this Article shall designate units responsible for carrying out the procedures
relevant to the compulsory licensing of protected plant varieties.
Article 36.- Procedures
for compulsory licensing of protected plant varieties under decisions
1. Agencies defined in Clauses 1, 2 and 3,
Article 35 of this Decree shall publicly announce demands for plant varieties,
denominations of plant varieties, use purposes and quantity of varieties needed
for use, scope and duration of satisfaction of licensing purposes.
2. Organizations and individuals that wish to be
licensed plant varieties shall file their dossiers of registration for
licensing of plant varieties to competent state agencies defined in Article 35
of this Decree.
A dossier for licensing of a plant variety
comprises:
a/ An application for licensing, stating the
scope and duration of compulsory licensing;
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c/ Documents evidencing the licensee's financial
capability to pay compensation to the licensor according to regulations.
3. Responsibilities of competent state agencies
for compulsory licensing of protected plant varieties:
a/ To receive dossiers defined in Article 2 of
this Article;
b/ To organize the examination of valid dossiers
within fifteen days after receiving those dossiers, and propose competent
authorities to issue compulsory licensing decisions if licensing applicants
have enough conditions;
c/ To notify applicants of the refusal to issue
decisions and reasons therefor if the applicants do not have enough conditions;
d/ To notify their decisions to compulsory
licensors and licensees for execution.
Chapter V
IMPLEMENTATION PROVISIONS
Article 37.- Transition
provisions
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2. Applications for plant variety protection
registration filed as from the effective date of this Decree shall comply with
the provisions of this Decree.
Article 38.- Effect
This Decree takes effect 15 days after its
publication in "CONG BAO" and supersedes the Government's Decree No.
13/2001/ND-CP of April 20, 2001, on protection of plant varieties.
Article 39.-
Implementation provisions
1. The Agriculture and Rural Development
Ministry shall guide the implementation of this Decree.
2. The Finance Ministry shall assume the prime
responsibility for, and coordinate with the Agriculture and Rural Development
Ministry in, guiding the collection, management and use of fees and charges for
protection of rights to plant varieties.
3. Ministers, heads of ministerial-level
agencies and government-attached agencies, and presidents of
provincial/municipal People's Committees shall implement this Decree.