Chương 4 Nghị định 104/2006/NĐ-CP quyền đối với giống cây trồng hướng dẫn luật sở hữu trí tuệ: Chuyển giao, chuyển nhượng quyền đối với giống cây trồng được bảo hộ

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.

Article 33.- Cases of compulsory licensing of protected plant varieties to satisfy urgent social needs

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.

Article 35.- Competence to decide on compulsory licensing of protected plant varieties

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;

b/ Certificate of registration of a business line of producing or trading in plant varieties;

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.