CHAPTER XIII: Establishment of Rights to Plant Varieties (Law no. 50/2005/qh11 on intellectual property)

CHAPTER XIII
Establishment of Rights to Plant Varieties

SECTION 1
Establishment of Rights to Plant Varieties

Article 164 Registration of rights to plant varieties

1. In order to obtain protection of rights to plant varieties, an organization or individual must file an application for registration for protection with the State administrative body for rights to plant varieties.

2. Organizations and individuals having the right to register plant varieties for protection (hereinafter referred to as registrants) shall include:

(a) Breeders who have personally selected and bred or discovered and developed the plant variety by their own efforts and at their own expense;

(b) Organizations and individuals who fund breeders to select and breed or discover and develop the plant variety by job assignment or hiring, unless otherwise agreed;

(c) Organizations and individuals to whom are transferred, or who inherit the right to register for protection of the plant variety.

3. For plant varieties which are selected and bred or discovered and developed with the use of State Budget funds or under projects managed by the State, the rights to such plant varieties shall belong to the State. The Government shall issue specific regulations governing the registration of rights to plant varieties stipulated in this clause.

Article 165 Method of filing applications for registration of rights to plant varieties

1. Any Vietnamese organization or individual, or foreign organization or individual with a permanent residential address in Vietnam or who has a plant variety production or trading establishment in Vietnam may file an application for registration of rights to a plant variety (hereinafter referred to as protection registration application) either directly or by a lawful representative in Vietnam.

2. Any foreign organization or individual without a permanent residential address in Vietnam or without a plant variety production or trading establishment in Vietnam may file an application for registration of rights to a plant variety by a lawful representative in Vietnam.

Article 166 “First to file” principle applicable to plant varieties

1. Where two or more parties independently file applications for registration for protection on different days for the same plant variety, a plant variety protection certificate shall only be granted to the earliest valid registrant.

2. Where there are a number of applications for registration for protection of the same plant variety filed on the same day, a plant variety protection certificate shall only be granted to the registrant whose name is used for the filing of the sole application as agreed upon by all the other registrants. Where these registrants fail to reach agreement, the State administrative body for rights to plant varieties shall consider a grant of a plant variety protection certificate to the party deemed to be the first breeder who selected and bred or discovered and developed such variety.

Article 167 Priority principle applicable to protection registration applications

1. A registrant may claim priority right where an application for registration for protection is filed within twelve (12) months from the date of filing an application for registration for protection for the same plant variety in a country which has concluded an agreement on plant variety protection with the Socialist Republic of Vietnam. The date on which the first filing occurred shall not be included in this time-limit.

2. In order to enjoy priority right, the registrant must express the claim for the priority right in his or her application for registration for protection. Within three (3) months after filing the application, the registrant must produce copies of documents on the first application certified by the competent body and samples or other evidence proving that the variety in both applications was the same, and the registrant must pay a fee. The registrant may supply necessary information, documents or materials to the State administrative body for rights to plant varieties for examination according to the provisions of articles 176 and 178 of this Law within two (2) years of expiry of the duration for enjoying the priority right, or within an appropriate duration depending on the species of the plant variety stated in the application after a first application is rejected or withdrawn.

3. Where an application for registration for protection is eligible for priority right, the priority date shall be the first filing date.

4. Within the time-limit stipulated in clause 1 of this article, the filing of another application or the publication or use of the plant variety the subject matter of the first application for registration for protection shall not be deemed a ground for rejecting the application for registration for protection eligible for the priority right.

Article 168 Plant variety protection certificates, and the National Register of Protected Plant Varieties

1. A protection certificate for a plant variety shall state the denomination and species of such variety, the name of the owner of rights to such plant variety (hereinafter referred to as the protection certificate holder), the name of the plant variety breeder and the duration of the term of protection of rights to the plant variety.

2. The State administrative body for rights to plant varieties shall record the grant and contents of a protection certificate in the National Register of Protected Plant Varieties, and shall archive such information.

Article 169 Validity of plant variety protection certificates

1. A plant variety protection certificate shall be valid throughout the entire territory of Vietnam.

2. Plant variety protection certificates shall be valid from the grant date up until the expiry of a period of twenty-five (25) years for timber trees and vines; and of twenty (20) years for other plant varieties.

3. Plant variety protection certificates may have their validity terminated or they may be invalidated pursuant to the provisions of articles 170 and 171 of this Law.

Article 170 Suspension and restoration of validity of plant variety protection certificates

1. The validity of a plant variety protection certificate may be suspended in the following cases:

(a) The protected plant variety no longer satisfies the conditions of uniformity and stability as at the time of grant of the certificate;

(b) The protection certificate holder fails to pay the validity maintenance fee according to regulations;

(c) The protection certificate holder fails to supply necessary documents and reproductive materials for maintaining and preserving the plant variety according to regulations;

(d) The protection certificate holder fails to change the denomination of the plant variety at the request of the State administrative body for rights to plant varieties.

2. In the cases stipulated in sub-clauses (a), (c) and (d) of clause 1 of this article, the relevant State administrative body for rights to plant varieties shall issue a decision on suspension of validity of the plant variety protection certificate.

3. In the case stipulated in sub-clause (b) of clause 1 of this article, upon the expiry of the time-limit for payment of the validity maintenance fee, the relevant State administrative body for rights to plant varieties shall issue a decision on suspension of validity of the plant variety protection certificate as from the first day of the next valid year for which the validity maintenance fee was not paid.

4. In the case stipulated in sub-clause (a) of clause 1 of this article, any organization or individual may request the State administrative body for rights to plant varieties to suspend the validity of the plant variety protection certificate.

Based on the results of considering the application for suspension of a plant variety protection certificate and the opinions of relevant parties, the relevant State administrative body for rights to plant varieties shall either issue a decision to suspend the validity of the certificate or shall refuse the application.

5. In the cases stipulated in clause 1 of this article, the relevant State administrative body for rights to plant varieties shall publish such suspension in a specialized magazine, clearly stating the reasons therefor, and concurrently send a notice thereon to the certificate holder. Within thirty (30) days from the date of notification, the certificate holder may file a request for application of remedies to the reasons why validity was suspended with the State administrative body for rights to plant varieties and pay the fee for restoration of validity of the plant variety protection certificate. Within ninety (90) days after the date of filing the request, the protection certificate holder must remedy the reasons why validity was suspended, applicable to the cases stipulated in sub-clauses (b), (c) and (d) of clause 1 of this article. The State administrative body for rights to plant varieties shall consider and restore the validity of the protection certificate and publish such restoration in a specialized magazine.

In the case stipulated in sub-clause (a) of clause 1 of this article, the validity of the plant variety protection certificate shall be restored after its holder successfully proves that the plant variety has satisfied the conditions of uniformity and stability and after this has been so certified by the State administrative body for rights to plant varieties.

Article 171 Cancellation of effectiveness of plant variety protection certificates

1. The effectiveness of a plant variety protection certificate shall be cancelled in the following cases:

(a) The application for registration for protection of the plant variety was filed in the name of a person who did not have the registration right, except where the right to such plant variety was assigned to the holder of the registration right;

(b) The protected plant variety failed to satisfy the conditions of novelty or distinctness at the time of grant of the plant variety protection certificate;

(c) The plant variety failed to satisfy the conditions of uniformity or stability where the plant variety protection certificate was granted on the basis of results of technical tests conducted by the registrant.

2. During the valid term of a plant variety protection certificate, any organization or individual may request the State administrative body for rights to plant varieties to cancel the effectiveness of a plant variety protection certificate.

Based on the results of the examination of a request for cancellation of effectiveness of a plant variety protection certificate and opinions of the relevant parties, the State administrative body for rights to plant varieties shall either issue a notice of refusal to cancel or shall issue a decision on cancellation of effectiveness of the plant variety protection certificate.

3. Where a plant variety protection certificate is cancelled, all transactions arising on the basis of the grant of the plant variety protection certificate shall be null and void, and such null and void transactions shall be dealt with in compliance with the Civil Code.

Article 172 Amendment and re-grant of plant variety protection certificates

1. A protection certificate holder may request the State administrative body for rights to plant varieties to amend or correct errors related to the name and address of the holder, on payment of fees and charges. Where such errors were made by the State administrative body for rights to plant varieties, such body must correct such errors, and protection certificate holders shall not have to pay fees and charges.

2. A protection certificate holder may request the State administrative body for rights to plant varieties to re-grant a plant variety protection certificate when such certificate was lost or damaged, provided that the holder pays fees and charges.

Article 173 Publication of decisions related to plant variety protection certificates

Decisions on the grant, re-grant, suspension, cancellation, and amendment of plant variety protection certificates shall be published by the State administrative body for rights to plant varieties in a specialized magazine on plant varieties within sixty (60) days after such decisions are issued.

SECTION 2
Applications for Registration for Protection,
and Processing Applications

Article 174 Applications for registration for protection

1. An application for registration for protection [of a plant variety] shall contain the following documents:

(a) A declaration for registration made on the stipulated sample form;

(b) Photos and a technical declaration made on the stipulated sample form;

(c) Power of attorney, where the application is filed through a representative;

(d) Documents evidencing the registration right where the registrant is a transferee of the registration right;

(đ) Documents evidencing the priority right where the application contains a claim for priority right;

(e) Receipt for payment of fees and charges.

2. Applications for registration for protection and source documents of transactions between an applicant for registration and the State administrative body for rights to plant varieties shall be made in Vietnamese, except for the following documents which may be made in another language but shall be translated into Vietnamese at the request of the State administrative body for rights to plant varieties:

(a) Power of attorney;

(b) Documents evidencing the registration right;

(c) Documents evidencing the priority right;

(d) Other documents supporting the application.

3. Documents evidencing the priority right of an application for registration for protection of rights to a plant variety shall comprise:

(a) Copies of the first application(s) certified by the receiving agency;

(b) Documents on transfer or inheritance of the priority right if such right is acquired from another person.

4. Each application shall be registered only for the protection of one plant variety.

Article 175 Receipt of applications for registration for protection, and filing dates

1. An application for registration for protection shall be received by the relevant State administrative body for rights to plant varieties only when the application encloses all the documents stipulated in clause 1 of article 174 of this Law.

2. The filing date of an application shall be the date on which such application is received by the relevant State administrative body for rights to plant varieties.

Article 176 Formal examination of applications for registration for protection

1. The State administrative body for rights to plant varieties shall conduct a formal examination of an application within fifteen (15) days of receipt of such application, in order to determine the validity of such application.

2. An application for registration for protection shall be deemed invalid in the following cases:

(a) It fails to satisfy the formal requirements as stipulated;

(b) The plant variety stated in such application does not belong to a plant species on the list of protected plant species;

(c) The application is filed by a person who does not have the registration right, including where the registration right belongs to many organizations or individuals but one or more of them do not agree to register.

3. The State administrative body for rights to plant varieties shall carry out the following procedures:

(a) Notify a refusal to accept the application in the cases stipulated in sub-clauses (b) and (c) of clause 2 of this article, clearly stating the reasons therefor;

(b) Notify the registrant of errors for correction in the case stipulated in sub-clause (a) of clause 2 of this article, setting a time-limit of thirty (30) days after the receipt of the notice for the correction of such errors by the registrant;

(c) Notify the refusal to accept the application where the registrant fails to correct errors or where the registrant does not make a reasonable appeal against the notice stipulated in sub-clause (b) of this clause;

(d) Notify the acceptance of the application, requesting the registrant to supply samples of the plant variety to the testing institution for performance of technical tests and procedures stipulated in article 178 of this Law where such application is valid or where the registrant has properly corrected the errors or made a justifiable opposition to the notice stipulated in sub-clause (b) of this clause.

Article 177 Publication of applications for registration for protection

1. Where an application is accepted as valid, the State administrative body for rights to plant varieties shall publish such valid application in a specialized magazine on plant varieties within ninety (90) days from the date of acceptance of the application.

2. The published contents of an application shall include the serial number and filing date of the application, the representative agent (if any), the registrant, the owner, the denomination of the plant variety, the name of the plant species, and the date on which the application was accepted as valid.

Article 178 Substantive examination of contents of applications for registration for protection

1. The State administrative body for rights to plant varieties shall conduct a substantive examination of applications already accepted as valid. The examination shall cover:

(a) Examination of the novelty and proper denomination of the plant variety;

(b) Examination of results of technical tests of the plant variety.

2. Technical tests means experiments conducted to determine the distinctness, uniformity and stability of a plant variety.

The technical test shall be conducted by the competent State body or by an organization or individual capable of testing plant varieties in compliance with regulations of the Ministry of Agriculture and Rural Development.

The State administrative body for rights to plant varieties may use previously obtained technical test results.

3. The time-limit for examination of technical test results shall be ninety (90) days from the date of receipt of such technical test results.

Article 179 Amendment and supplementation of applications for registration for protection

1. Before the relevant State administrative body for rights to plant varieties notifies a refusal to grant a plant variety protection certificate or notifies its decision on grant of a plant variety protection certificate, the registrant shall have the following rights:

(a) To amend or supplement the application without changing the nature of the application;

(b) To request the recording of changes of the registrant’s name or address;

(c) To request the recording of a change of registrant due to assignment of the application pursuant to a contract or as a result of inheritance or bequest.

2. The person requesting the conduct of the procedures stipulated in clause 1 of this article must pay fees and charges.

Article 180 Withdrawal of applications for registration for protection

1. Before the relevant State administrative body for rights to plant varieties decides or refuses to grant a plant variety protection certificate, the registrant may withdraw the application. A request for withdrawal of an application must be made in writing.

2. From the moment a registrant withdraws an application for registration for protection, all subsequent procedures related to such application shall cease; and fees and charges already paid for procedures which have not yet been carried out shall be refunded at the request of the registrant.

Article 181 Opinions of third parties on the grant of a plant variety protection certificate

As from the date of publication of an application for registration for protection of a plant variety in a specialized magazine on plant varieties up until before a decision on grant of a plant variety protection certificate is issued, any third party shall be permitted to provide an opinion to the State administrative body for rights to plant varieties challenging the grant of such plant variety protection certificate. An opinion must be made in writing and accompanied by documents and evidence to support it.

Article 182 Refusal to grant a plant variety protection certificate

An application for registration for protection shall be rejected and the grant of a plant variety protection certificate refused where the relevant plant variety fails to satisfy the conditions stipulated in articles 176 and 178 of this Law. In a case of refusal to grant a plant variety protection certificate, the State administrative body for rights to plant varieties shall carry out the following procedures:

1. Notify the intended refusal to grant a plant variety protection certificate, clearly stating the reasons therefor and setting a time-limit for the registrant to correct errors or oppose the intended refusal.

2. Notify the refusal to grant a plant variety protection certificate where the registrant fails to correct errors and makes no opposition to the intended refusal stipulated in clause 1 of this article.

3. Carry out the procedures stipulated in article 183 of this Law where the registrant has corrected errors or made a justifiable opposition to the intended refusal stipulated in clause 1 of this article.

Article 183 Grant of plant variety protection certificates

Where an application for registration for protection is not rejected as provided for in article 182 of this Law and the registrant pays the fee, the State administrative body for rights to plant varieties shall issue a decision granting a plant variety protection certificate and shall record it in the National Register of Protected Plant Varieties.

Article 184 Complaints about the grant or the refusal to grant a plant variety protection certificate

1. The registrant and any third party shall have the right to lodge a complaint about the decision or the refusal to grant a plant variety protection certificate.

2. The resolution of complaints about a decision or refusal to grant a plant variety protection certificate shall comply with the law on complaints and denunciations.

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