Chương III Nghị định 79/2023/NĐ-CP hướng dẫn Luật Sở hữu trí tuệ về quyền đối với giống cây trồng: Quyền đối với giống cây trồng là kết quả của nhiệm vụ khoa học và công nghệ sử dụng ngân sách nhà nước

Chapter III

RIGHTS TO PLANT VARIETIES THAT ARE THE RESULTS OF SCIENTIFIC AND TECHNOLOGICAL TASKS FUNDED BY THE STATE BUDGET

Article 16. Assignment of rights to register plant varieties that are the results of scientific and technological tasks funded by the state budget

1. After 12 months from the time of testing of scientific and technological tasks, if the organization in charge of scientific and technological tasks does not submit an application for registration of rights to the related plant variety or a report on not needing to exercise the rights to registration to the state ownership representative, the state ownership representative shall assign the rights to register the mentioned plant variety to another organization established under the laws of Vietnam or an individual who are a Vietnamese citizen with permanent residence in Vietnam. Procedures for assigning rights are as follows:

a) The state ownership representative shall disclose notification of the submission of the application for the assignment of rights to register the plant variety on the web portal or website of the authority managing scientific and technological tasks within 90 days. Contents of the notification: names of the scientific and technological tasks; brief information on the plant variety such as the name of the variety, name of the plant type, several main agronomic and biological traits; requests and conditions for the organization or individual assigned with the registration rights; name of the receiving unit, methods of receiving the application for assignment of rights to the plant variety.

d) Within the time limit prescribed in Point a Clause 1 of this Article, any concerned organization or individual shall submit an application for assignment of registration rights following Form No. 15 enclosed herewith to the receiving unit.

Within 12 days from the end date of the application receipt, the state ownership representative shall disclose a list of organizations and individuals with valid applications and the intention to assign such organizations and individuals to exercise rights to registration or become the joint applicants of applications for plant variety protection with assigned rights on the website of the authority managing scientific and technological tasks and impose a 7-working-day time limit from the disclosure date for the applicants to have any suggestions on the mentioned contents. After the above time limit, if concerned organizations and individuals agree to become the joint applicant in writing or do not have any written response, within 5 working days after the end date of the above time limit, the state ownership representative shall issue a decision to assign the rights to register plant variety protection to the organizations and individuals such organizations and individuals.

2. In case the rights to registration cannot be assigned to the concerned organization or individual according to Clause 1 of this Article or in the case prescribed in Point a Clause 3 Article 191b of the Law on Amendments to the Law on Intellectual Property 2022 or the related application for plant variety registration is a result of certain scientific and technological task funded by the state budget is not accepted, declined from the issuance of a plant variety protection title, or withdrew before being disclosed, the state ownership representative shall disclose on the web portal or website of the authority managing scientific and technological tasks the brief information on the name of the related variety, name of the plant type, several main agronomic and biological traits for other permitted organizations or individuals to utilize and use according to the law on production and trading of plant varieties.

Article 17. Responsibilities of organizations in charge of scientific and technological tasks; organizations and individuals assigned with rights to register plant varieties

1. Organizations in charge of scientific and technological tasks shall:

a) Ensure the novel requirements for plant varieties up to the time of assigning registration rights to other organizations or individuals if such plant varieties are not registered for protection, except for cases of failure to assign registration rights.

b) Store and maintain the plant varieties to ensure their stability according to the description at the time of the thematic testing during the time such plant varieties are used until the handover to other organizations or individuals in case of transfer of registration rights or ownership, except cases where other agreements are made.

2. Organizations and individuals assigned with registration rights shall:

a) Register plant variety protection or continue to carry out procedures for the issuance of plant variety protection titles.

b) Store and maintain plant varieties, provide information, materials, and materials for plant variety reproduction of the protected plant varieties upon requests from the Ministry of Agriculture and Rural Development of Vietnam, and maintain the stability of the protected plant varieties according to the described traits at the time of issuance of plant variety protection titles.

3. Annually, plant variety protection title holders shall submit reports to the authority managing scientific and technological tasks with the following contents:

a) Situation of the commercial utilization and assessment of the efficiency of the utilization of plant varieties;

b) The total profit that the plant variety protection title holders have received from the use and transfer of use rights, transfer of ownership, and the settlement of remuneration for breeders, and profit distribution enclosed with the financial statements;

c) Measures to protect rights currently in implementation concerning plant varieties.

Article 18. Procedures for permitting other organizations and individuals to use protected plant varieties that are the results of scientific and technological tasks funded by state budget

1. The appropriate time, according to Point a Clause 3 Article 191b of the Law on Amendments to the Law on Intellectual Property 2022, is determined as after 3 years for annual plants, ephemeral plants, medicinal plants, aquatic plants, and mushroom varieties or 5 years for perennial plants, forestry plants, and long-day plants from the issuance date of plant variety protection titles that the concerned holders fail to recognize the circulation or disclose the circulation or recognize the varieties as per regulation.

2. Regarding the prescribed in Point b Clause 3 Article 191b of the Law on Amendment to the Law on Intellectual Property 2022, other organizations and individuals may request the utilization and use of plant varieties that are the results of scientific and technological tasks funded by state budget shall submit applications to authorities competent to approve scientific and technological tasks. An application includes:

a) Application for the use of the plant variety following Form No. 16 enclosed herewith;

b) Documents proving legitimate grounds to utilize and use the plant variety

3. Within 7 working days from the receipt of an adequate application, the authority competent to approve scientific and technological tasks shall assess it.

a) If the application is valid, the authority competent to approve scientific and technological tasks shall issue a decision to permit the utilization and use of the plant variety while providing notifications for the plant variety protection title holder and the applicant for implementation.

b) If the application is invalid, the authority competent to approve scientific and technological tasks shall answer and explain in writing.

4. A decision to permit an organization or individual that is not the plant variety protection title holder to utilize and use the plant variety prescribed in Clause 3 of this Article shall specify the scope and requirements for such an entity entitled to the permission, including the following contents:

a) Rights to utilization and use of the plant variety shall not be exclusive;

b) Rights to utilization and use may only be exercised within the scope and time period adequate to achieve the targets of the use permission;

c) The organization or individual permitted by the competent authority shall not transfer the rights to other entities.

5. The plant variety protection title holder may request the termination of the permission for the concerned organization or individual to utilize and use the related plant variety when the grounds prescribed in Point b Clause 3 Article 191b of the Law on Amendments to the Law on Intellectual Property 2022 no longer exist. Specifically:

a) The plant variety protection title holder shall submit an application to the Ministry of Agriculture and Rural Development of Vietnam requesting the termination of the utilization and use of the related plant variety. The application includes:

Application requesting the termination of the use of the related plant variety following Form No. 17 enclosed herewith;

Documents proving the grounds to permit the utilization and use of the related plant variety no longer exist.

b) Within 7 working days after receiving the adequate application, the Ministry of Agriculture and Rural Development of Vietnam shall assess it;

If the application is valid, the Ministry of Agriculture and Rural Development of Vietnam shall issue a decision to terminate the utilization and use of the related plant variety.

If the application is invalid, the Ministry of Agriculture and Rural Development of Vietnam shall answer and explain in writing.