Chương 6 Nghị định 105/2006/NĐ-CP bảo vệ quyền sở hữu trí tuệ quản lý nhà nước hướng dẫn luật sở hữu trí tuệ: Giám định sở hữu trí tuệ

Chapter VI

INTELLECTUAL PROPERTY ASSESSMENT

Article 39.- Contents and areas of intellectual property assessment

1. Intellectual property assessment covers the following contents:

a/ Determination of the legal status and protectability of the intellectual property right subject matter; the scope of intellectual property right protection;

b/ Determination of evidence for calculation of the level of damage;

c/ Determination of infringing elements, infringing products/services, the element serving as a basis for determination of the value of the protected intellectual property right subject matter, the infringing objects;

d/ Determination of the ability to prove the intellectual property right holder status, infringement, infringing goods or the ability to prove to the contrary of documents and evidence used in the dispute or infringement;

e/ Other circumstances of the case that need to be clarified.

2. Intellectual property assessment shall cover the following areas:

a/ Assessment of copyright and related rights;

b/ Assessment of industrial property rights;

c/ Assessment of the rights to plant varieties.

Article 40.- Competence to solicit and the right to request intellectual property assessment

1. The agencies with competence to solicit intellectual property assessment are agencies with competence to settle disputes, handle infringements and settle intellectual property-related complaints and denunciations as defined in Article 200 of the Law on Intellectual Property.

2. The following organizations and individuals are entitled to request intellectual property assessment:

a/ Intellectual property right holders;

b/ Organizations and individuals subject to a request for handling of acts of infringement or intellectual property-related complaint or denunciation;

c/ Other organizations and individuals with related rights and interests in an intellectual property-related dispute, infringement, complaint or denunciation.

3. Organizations and individuals entitled to request assessment as defined in Clause 2 of this Article may directly request or authorize other organizations or individuals to request intellectual property assessment organizations or intellectual property assessors to conduct assessment.

Article 41.- Rights and obligations of persons soliciting or requesting intellectual property assessment

1. Persons soliciting or requesting intellectual property assessment are entitled to:

a/ Request the assessment organization or assessor to make assessment conclusions according to the contents and within the time limit as requested;

b/ Request the assessment organization or assessor to explain assessment conclusions;

c/ Request additional assessment or re-assessment under the provisions of Article 50 of this Decree;

d/ Agree on the assessment charges in the case of request for assessment.

2. Persons soliciting or requesting intellectual property assessment are obliged to:

a/ Supply fully and honestly documents, evidence and information relating to the assessed subject matter at the request of the assessment organization or assessor;

b/ Clearly and specifically present issues of which assessment is solicited or requested;

c/ Pay the assessment charges as agreed upon; make advance payment of assessment charges at the request of the assessment organization or assessor;

d/ Receive back the assessed subject matter at the request of the assessment organization or assessor.

Article 42.- Intellectual property assessment organizations

1. Intellectual property assessment organizations are organizations meeting all conditions for conducting intellectual property assessment.

2. Conditions for establishing an assessment organization:

a/ Having at least two members who have intellectual property assessor’s cards;

b/ Meeting other conditions under relevant provisions of law.

3. Conditions for an assessment organization to conduct intellectual property assessment:

a/ Meeting all conditions specified at Point a, Clause 2 of this Article;

b/ Having a certificate of registration of scientific and technological activity and a certificate of registration of the assessment business or practice according to current law;

c/ An assessment organization may practice assessment only in the area in which it has registered its activity and assessment business.

Article 43.- Rights and obligations of intellectual property assessment organizations

1. In assessment activities, intellectual property assessment organizations shall have the rights and obligations provided in Clause 4, Article 44 of this Decree; be responsible for ensuring necessary conditions for intellectual property assessors to discharge their rights and obligations; and be liable for assessment conclusions if the assessment is conducted in their names.

2. Intellectual property assessment organizations shall be responsible for taking part in the following activities:

a/ Scientific research into intellectual property assessment;

b/ Training assessors and fostering professional skills in intellectual property assessment.

Article 44.- Intellectual property assessors

1. Intellectual property assessors are those who have adequate knowledge and professional skills to assess and conclude on issues related to the contents of assessment and are recognized by competent state agencies under the provisions of Clause 5 of this Article.

Intellectual property assessors may operate independently or as a member of an intellectual property assessment organization.

2. The Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development shall, according to their assigned areas of state management of intellectual property, coordinate with the Ministry of Education and Training and the Ministry of Justice in issuing specific regulations on the programs on professional training in each area of assessment under their respective management.

3. Those who fully meet the following conditions shall be recognized and granted intellectual property assessor’s cards:

a/ Having a university degree in the area of assessment;

b/ Possessing good moral qualities;

c/ Having full civil act capacity;

d/ Having passed a professional exam of knowledge about intellectual property law, scientific and technical capability, professional skills and experience for performing assessment of contents related to industrial property rights, copyright, related rights and rights to plant varieties.

The Ministry of Science and Technology, the Ministry of Culture and Information and the Ministry of Agriculture and Rural Development shall stipulate the contents of examination referred to at this Point in the areas under their assigned management; guide and organize those exams and grant certificates of professional eligibility for working as intellectual property assessors.

4. Intellectual property assessors shall have the following rights and obligations:

a/ To perform assessment when solicited or requested; to perform assessment according to the contents of assessment as solicited or requested, and according to the time requirement on assessment; when it is necessary to have more time for assessment, to promptly report it to the person who solicits or requests such assessment;

b/ To refuse to perform assessment when the subject matters of assessment or documents are insufficient or are irrelevant to make assessment conclusions, or when they have rights or benefits relating to the subject matters of assessment or the cases in which assessment is required or where there exist other reasons that may influence the objectiveness of assessment conclusions while they also act as representatives to protect the interests of one of the parties involved in the case in which assessment is required;

c/ To request agencies, organizations to supply documents, exhibits and information relating to the subject matters of assessment;

d/ To select the necessary and appropriate method for assessment; to use test results or conclusions of professionals or comments of experts in service of assessment;

e/ To prepare assessment dossiers, to be present as required in the writ of summon of the assessment-soliciting agency; to explain the assessment conclusions if so requested;

f/ To preserve the exhibits and documents relating to the assessment; to keep confidential all assessment results and information and documents for assessment;

g/ To independently make and be responsible for assessment conclusions;

h/ To compensate for damage when intentionally making false assessment conclusions, causing damage to concerned individuals and organizations;

i/ To comply with the regulations on the order and procedures for assessment and to discharge other rights and obligations provided for by law.

5. The Ministry of Culture and Information, the Ministry of Science and Technology and the Ministry of Agriculture and Rural Development shall stipulate the procedures for recognition of intellectual property assessors, grant and withdrawal of intellectual property assessor’s cards; and publish lists of intellectual property assessors in the areas under their respective management corresponding to copyright and related rights, industrial property rights and rights to plant varieties.

Article 45.- Solicitation of assessment

1. Any solicitation of assessment must be made in writing.

2. A document on solicitation of assessment must have the following principal contents:

a/ Name and address of the agency soliciting assessment; name and position of the person competent to solicit assessment;

b/ Name and address of the assessment organization or the assessor;

c/ Subject matter and details that need to be assessed;

d/ Relevant evidence, documents and exhibits;

e/ The time limit for notifying the assessment conclusions.

Article 46.- Assessment request

1. A request for assessment must be made in the form of an assessment service contract between the person requesting assessment and an assessment organization or an assessor.

2. An assessment service contract must contain the following principal details:

a/ Name and address of the organization or individual requesting assessment;

b/ Name and address of the assessment organization or the assessor;

c/ Contents of the assessment request;

d/ Relevant evidence, documents and exhibits;

e/ Time limit for notifying assessment conclusions;

f/ Rights and obligations of the parties;

g/ Liabilities for breach of the contract.

Article 47.- Delivery, receipt and return of objects for intellectual property assessment

Where the assessment solicitation or request is enclosed with an assessment object, the handing, receipt and return of the object must be recorded in writing. Such a record must have the following principal details:

1. Time and place of delivery, receipt and return of the assessment object;

2. Names and addresses of the deliverer and recipient of the assessment object or of their representatives;

3. Name of the assessment object; related documents or items.

4. Conditions and method of preservation of the assessment object upon delivery, receipt and return.

5. Signatures of the deliverer and recipient of the assessment object.

Article 48.- Taking of samples for intellectual property assessment

1. The assessment organization or assessor may directly take samples for assessment (particular exhibits that are infringing elements or intellectual property subject matters) or request the assessment solicitor or requester to supply samples for assessment. The taking of samples for assessment must be recorded in writing to the witness of the involved parties who shall sign this record for certification.

2. The delivery, receipt and return of assessment samples shall comply with the provisions of Article 47 of this Decree.

Article 49.- Performance of intellectual property assessment

1. Intellectual property assessment may be performed by one or several intellectual property assessors. Individual assessment means assessment performed by a single assessor. Collective assessment means assessment performed by two or more assessors.

2. In case of individual assessment, the assessors shall perform the whole of the assessment and be responsible for their assessment conclusions. In case of collective assessment of issues in the same professional area, the assessors shall jointly perform the assessment, sign the common assessment conclusion document and be jointly responsible for assessment conclusions; if the assessors hold different opinions, each assessor shall write his/her own opinion in the common assessment conclusion document and be responsible for that opinion. In case of collective assessment of issues in different professional areas, each assessor shall perform his/her assessment job and be responsible for his/her assessment conclusion.

Article 50.- Additional assessment, re-assessment

1. Additional assessment shall be performed when the assessment conclusion is insufficient and unclear regarding the contents that need assessment or when new circumstances arise and need to be made clear. The request for additional assessment and the performance of additional assessment shall comply with the provisions applicable to first-time assessment.

2. Re-assessment shall be performed when the assessment solicitor or requester disagrees with the assessment result or when exist contradictory assessment results on the same assessed issue. The re-assessment may be performed by the assessment organization or assessor that has performed the previous assessment or by another assessment organization or assessor as requested by the assessment solicitor or requester.

3. If the first-time assessment conclusion is contradictory to the re-assessment conclusion on the same assessed issue, it is possible to further request or solicit re-assessment by another assessment organization or assessor.

Article 51.- Written assessment conclusions

1. Written assessment conclusion shall be considered as evidence used for handling the case.

2. A written assessment conclusion must contain the following principal contents:

a/ Name and address of the assessment organization or assessor;

b/ Name and address of the agency soliciting assessment or the organization or individual requesting assessment;

c/ Object, contents and scope of assessment;

d/ Mode of assessment;

e/ Assessment conclusions;

f/ Time and place of performance and completion of the assessment.

3. A written assessment conclusion must be signed by the assessor(s) performing the assessment. When the assessment is performed by an assessment organization, the written assessment conclusion must also be signed by the head of the assessment organization and affixed with the seal of the assessment organization.

Article 52.- Prohibited acts in the performance of assessment

In the performance of assessment, the following acts are prohibited:

1. Accepting and performing assessment in the cases in which assessment must be refused according to regulations.

2. Intentionally making false assessment conclusions.

3. Disclosing confidential information known in the course of assessment without permission of the involved parties.

4. Taking advantage of the assessment status and assessment activities for self-seeking purposes.

Article 53.- Assessment charges

Charges for intellectual property assessment upon solicitation shall comply with the provisions of law on charges and fees.

Charges for intellectual property assessment upon service request shall be agreed upon by the involved parties.