Chương 3 Nghị định 104/2006/NĐ-CP quyền đối với giống cây trồng hướng dẫn luật sở hữu trí tuệ: Quyền và nghĩa vụ của chủ bằng bảo hộ và tác giả giống cây trồng

Chapter III

RIGHTS AND OBLIGATIONS OF PROTECTION CERTIFICATE HOLDERS AND BREEDERS OF PLANT VARIETIES

Article 26.- Rights of plant variety protection certificate holders

1. The rights of plant variety protection certificate holders provided for in Article 186 of the Intellectual Property Law apply to harvested materials obtained from the use of propagating materials of protected plant varieties without permission of protection certificate holders. If a protection certificate holder has reasonable conditions to exercise his/her rights to propagating materials of a plant variety, a user is not required to ask for permission of that protection certificate holder for use of harvested materials of the same plant variety.

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;

3. Conducting activities for the purpose of selecting and breeding other plant varieties, except for the cases specified in Article 187, and taking acts related to plant varieties specified in Article 186 of the Intellectual Property Law and Article 26 of this Decree.

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.

Article 30.- Obligations of plant variety breeders

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.