Chương XV Luật Sở hữu trí tuệ 2005: Chuyển giao quyền đối với giống cây trồng

Chapter XV

TRANSFER OF RIGHTS TO PLANT VARIETIES

Article 192. Licensing of plant varieties

1. Licensing of a plant variety means permission from the protection certificate holder to another person to conduct one or more acts within the holder's right to use the plant variety.

2. Where the right to use a plant variety is under co-ownership, the licensing of such plant variety to another person must be consented to by all co-owners.

3. The licensing of a plant variety must be effected in the form of a written contract.

4. A plant variety licensing contract must not contain terms which unreasonably restrict the rights of the licensee, particularly restrictions neither deriving from nor aimed at protecting the rights of the licensor to the licensed plant variety.

Article 193. Rights of parties to a licensing contract

1. The licensor shall have the right to permit or not permit the licensee to sub-license to a third party.

2. The licensee shall have the following rights:

 (a) To license the use right to a third party if so permitted by the licensor;

 (b) To request the licensor to take necessary and appropriate measures to prevent infringement by a third party causing loss and damage to the licensee;

 (c) To take necessary measures to prevent a third party's infringements if, within a time-limit of three months from the date of receipt of the request stipulated in sub-clause (b) above, the licensor fails to act as requested.

Article 194. Assignment of rights to plant varieties

1. Assignment of rights to a plant variety means the transfer by the plant variety protection certificate holder to the assignee of all rights to such plant variety. The assignee shall become the plant variety protection certificate holder from the date of registration of the assignment contract with the State administrative body for rights to plant varieties in accordance with procedures stipulated by law.

2. Where rights to a plant variety are under joint ownership, the assignment of such rights to another person must be consented to by all co-owners.

3. The assignment of rights to a plant variety must be effected in the form of written contract.

Article 195. Bases and conditions for compulsory licensing of plant varieties

1. In the following cases, the rights to use a plant variety may be licensed to another organization or individual pursuant to a decision of the competent State body defined in clause 1 of article 196 of this Law without permission from the protection certificate holder or his or her exclusive licensee (hereinafter referred to as the holder of the exclusive right to use the plant variety):

 (a) The use of such plant variety is for the public interest and non-commercial purposes, or in service of national defence and security, food security and nutrition of the people or to meet other urgent social needs;

 (b) The persons having the need and capacity to use such plant variety fail to reach agreement with the holder of the exclusive right to use such plant variety on the entry into a licensing contract though they have made best efforts within a reasonable period of time to negotiate a satisfactory price and commercial conditions;

 (c) The holder of the exclusive right to use such plant variety is deemed to have conducted anti- competitive practices prohibited by the law on competition.

2. The holder of the exclusive right to use a plant variety may request termination of the use right when the bases for licensing stipulated in clause 1 of this article cease to exist and are unlikely to recur, provided that termination of such use right will not be prejudicial to the licensee.

3. The right to use a plant variety licensed pursuant to a decision of a competent State body must satisfy the following conditions:

 (a) Such licensed use right is non-exclusive;

 (b) Such licensed use right is limited within a scope and duration sufficient to attain the licensing objective, and is largely for the domestic market except for the case stipulated in sub-clause (c) of clause 1 of this article;

 (c) The licensee must not assign the use right to another person, except where the assignment is made together with the transfer of the business establishment of the licensee, and the licensee must not sub-license to others;

(d) The licensee must pay adequate compensation to the holder of the exclusive right to use the plant variety, taking into account the economic value of such use right in each specific case and in compliance with the compensation rate bracket promulgated by the Government.

4. The Government shall specify cases of compulsory licensing of plant varieties and the compensation rate bracket stipulated in sub-clause (d) of clause 3 of this article.

Article 196. Authority and procedures for licensing of plant varieties pursuant to compulsory decisions

1. The Ministry of Agriculture and Rural Development shall issue decisions on licensing of plant varieties in the domains over which such Ministry exercises State management on the basis of considering licensing requests for the cases stipulated in clause 1 of article 195 of this Law.

Ministries and ministerial equivalent bodies shall, after consulting the opinion of the Ministry of Agriculture and Rural Development, issue decisions on licensing of plant varieties in domains under their respective management for the cases stipulated in clause 1 of article 195 of this Law.

2. Plant variety licensing decisions must set the use scope and conditions in compliance with the provisions of clause 3 of article 195 of this Law.

3. The State body competent to issue a decision licensing a plant variety must promptly notify such decision to the holder of the exclusive right to use the plant variety in question.

4. Decisions on licensing of plant varieties or refusal to license plant varieties may be the subject of complaints lodged or lawsuits instituted in accordance with law.

5. The Government shall provide detailed guidelines on the procedures for compulsory licensing of plant varieties as stipulated in this article.

Article 197. Rights of protection certificate holders in cases of compulsory licensing of plant varieties

A protection certificate holder subject to compulsorily licensing of the plant variety shall have the following rights:

1. To receive compensation corresponding to the economic value of the licensed use right or equivalent to the licensing price under a contract with an equivalent scope and term.

2. To request the State administrative body for rights to plant varieties to amend, terminate validity of or invalidate the compulsory licensing when the conditions for such compulsory licensing no longer exist and when such amendment, termination of validity or invalidation will not cause loss and damage to the licensees who derived their right from the compulsory licensing.