Chương 4 Nghị định 88/2010/NĐ-CP hướng dẫn luật sở hữu trí tuệ: Chuyển giao, chuyển nhượng quyền đối với giống cây trồng được bảo hộ

Chapter IV

LICENSING AND ASSIGNMENT OF RIGHTS TO PROTECTED PLANT VARIETIES

Article 25. Contents of contracts on the licensing or assignment of rights to protected plant varieties

1. A contract on the licensing of a protected plant variety has the following details:

a/ Full names and addresses of the licensor and licensee;

b/ Licensing grounds;

c/ The licensing scope, covering limitations on use rights and territorial limitations;

d/ The licensing duration;

e/ The licensing price;

f/ Rights and obligations of the licensor and licensee;

g/ Liabilities for breaches of the contract.

2. A contract on the assignment of rights to a protected plant variety has the following details:

a/ Full names and addresses of the assigner and the assignee:

b/ Grounds for the assignment;

c/ Contents of the assignment of rights to the plant variety;

d/ The assignment price and mode of payment:

e/ Rights and obligations of the assignor and assignee;

f/ Liabilities for breaches of the contract.

Article 26. Assignment of rights to protected plant varieties

1. After finalizing a contract on the assignment of rights to a plant variety in accordance with law. the assignor shall submit a dossier of registration for the assignment contract to the plant variety protection agency and pay a fee according to regulations.

2. A dossier of registration for a contract on the assignment of rights to a plant variety comprises:

a/ Two registration declaration forms, made according to a set form;

b/ Two original or lawful copies of the contract. Contracts must be made in Vietnamese or translated into Vietnamese, bearing the signatures of involved parties on each page or a seal on every two adjoining pages;

c/ The original or a lawful copy of the protection certificate;

d/ The written consent of co-owners, for plant varieties under joint ownership:

e/ Charge and fee payment documents;

f/ For plant varieties created with state budget funds, documents evidencing the compliance with Clause 1. Article 27 of this Decree are required.

3. The plant variety protection agency shall examine the registration dossier within thirty (30) days after the receiving the application in order to determine its validity.

4. In case the registration dossier is valid and flawless, the Minister of Agriculture and Rural Development shall decide to re-grant a plant variety protection certificate, recognizing the assignee as a new owner, record the assignment of the ownership rights to the plant variety protection certificate in the national register of protected plant varieties and publish such assignment in the specialized plant variety magazine;

5. In case the registration dossier is invalid or flawed, the plant variety protection agency shall notify in writing these flaws to the dossier submitter and set a time limit of thirty (30) days from the date of signing this notice for the dossier submitter to correct these flaws. Past this time limit, if the dossier submitter fails to correct these flaws, the examination of the registration dossier shall terminate.

Article 27. Licensing or assignment of rights to plant varieties created and bred or discovered and developed with state budget funds

1. The assignment of rights to a plant variety created or discovered and developed with state budget funds complies with the Law on Technology Transfer and guiding documents.

2. The management and use of after-tax proceeds from the licensing or assignment of rights to plant varieties created and bred or discovered and developed with state budget funds comply with following regulations:

a/ Protection certificate holders shall specify and publicize the level of remuneration paid to breeders of plant varieties in internal regulations; in case no internal regulation has been promulgated. Point b. Clause 1. Article 24 of this Decree shall be applied; a half of the remainder will be invested in scientific research and technological development while the other half will be deposited in welfare and reward funds of the unit or section directly creating protection plant varieties;

b/ For plant varieties created or discovered and developed with different capital sources, including state budget funds, the management and use of the proceeds corresponding to the state capital portion comply with Point a. Clause 2 of this Article.

Article 28. Competence to decide on the compulsory licensing of rights to use plant varieties

1. The Ministry of Agriculture and Rural Development shall decide on the compulsory licensing of protected plant varieties of agricultural, forest and aquatic species.

2. The Ministry of Agriculture and Rural Development shall assume the prime responsibility for, and coordinate with the Ministry of Health in. deciding on the compulsory licensing of protected plant varieties used for medicinal purposes.

Article 29. Cases of compulsory licensing of protected plant varieties to meet urgent social needs

1. Compulsory licensing of protected plant varieties to meet urgent social needs prescribed at Point a. Clause 1, Article 195 of the Law on Intellectual Property applies to cases of dealing with emergency circumstances such as natural disaster, epidemic, war and widespread environmental pollution.

2. The Ministry of Agriculture and Rural Development shall publicly announce the needs for plant varieties, denominations of plant varieties, use purposes and quantity of varieties needed, licensing scope and duration and time limit for submission of registration dossiers.

Article 30. Principles of determining compensation levels for compulsory licensing of protected plant varieties

The compensation level for a compulsory licensing shall be determined on the following principles:

1. The agreement between the licensor and licensee;

2. In case no agreement is reached, the compensation level shall be determined based on:

a/ The value of the latest contract for licensing of the same variety to another subject, corresponding 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 use of that plant variety, corresponding to the quantity of the licensed variety and the licensing duration:

c/ In case neither of the grounds specified at Points a and b of this Clause is available, the compensation level shall be determined based on actual expenses for creating that plant variety.

3. The Ministry of Agriculture and Rural Development shall request an organization or assume the prime responsibility for. and coordinate with concerned ministries and branches in. setting up councils to evaluate compensation levels for cases defined in Clause 2 of this Article on a case-by-case basis.

Article 31. Procedures for compulsory licensing of protected plant varieties under decisions

1. Organizations and individuals that wish to use plant varieties shall file their dossiers of registration for compulsory licensing of plant varieties under decisions as specified at Point a. Clause 1. Article 195 of the Law on Intellectual Property. Organizations and individuals that fail to reach agreement on the licensing of plant varieties or meet with obstacles in competition may file dossiers of registration for compulsory licensing of plant varieties under Points b and c. Clause 1. Article 195 of the Law on Intellectual Property.

2. A dossier for licensing of a plant variety comprises:

a/ Two written requests for compulsory licensing of a plant variety, made according to a set form, clearly stating the scope and duration of the compulsory licensing;

b/ The certificate of registration for plant variety production and trading;

c/ Requests evidencing the licensee's financial capability to pay compensation to the licensor according to regulations;

d/ Documents evidencing the request for compulsory licensing of the plant variety is supported by sound grounds as prescribed by law. for cases defined at Points b and c. Clause 1, Article 195 of the Law on Intellectual Property;

e/ A power of attorney, for cases of filing dossiers through a representative;

f/ Fee payment document.

3. The order of and procedures for compulsory licensing of a protected plant variety under Point a. Clause 1. Article 195 of the Law on Intellectual Property:

a/ The plant variety protection agency shall receive a dossier specified in Clause 2 of this Article;

b/ Within fifteen (15) days after receiving the dossier, the Ministry of Agriculture and Rural Development shall issue a decision on compulsory licensing of the plant variety and notify its decision to the licensor and licensee for compliance.

4. The order of and procedures for compulsory licensing of a protected plant variety under Point b or c. Clause 1, Article 195 of the Law on Intellectual Property:

a/ The plant variety protection agency shall receive a dossier specified in Clause 2 of this Article;

b/ Within fifteen (15) days after receiving the dossier, the Ministry of Agriculture and Rural Development shall notify the holder of the exclusive rights to use the plant variety of the request for compulsory licensing of that plant variety;

c/ Within 30 (thirty) days after the date of issuance of the notice, the holder of the exclusive rights to use the plant variety shall make a written reply;

d/ In case the holder of monopolistic rights to use the plant variety rejects the compulsory licensing request, within 15 (fifteen) days, the Ministry of Agriculture and Rural Development shall issue a written reply to the requestor;

e/ The Ministry of Agriculture and Rural Development shall issue a decision on compulsory licensing of the plant variety if the request for compulsory licensing is conformable with regulations and shall notify its decision to the licensor and licensee for compliance;

f/ If the request for compulsory licensing of a plant variety is not supported by sound grounds as specified at Point b and c. Clause 1. Article 195 of the Law on Intellectual Property, it shall issue a written reply clearly stating the reason for refusal.

Article 32. Modification, invalidation and cancellation of decisions on compulsory licensing of protected plant varieties

1. According to Clause 2. Article 197 of the Law on Intellectual Property, holders of the exclusive rights to use plant varieties may request competent agencies defined in Article 29 of this Decree to modify, invalidate or cancel decisions on compulsory licensing of protected plant varieties and shall pay charges and fees according to regulations.

2. A decision on compulsory licensing of a plant variety may be:

a/ Modified upon changes in the conditions which lead to its issuance;

b/ Invalidated when the conditions which lead to its issuance no longer exist;

c/ Cancelled when there are grounds to prove that it has been issued in contravention of law.

3. A dossier of request for modification, invalidation or cancellation of a decision on compulsory licensing of a protected plant variety comprises the following documents:

a/ A written request for modification of the licensing price, the quantity of plant varieties to be licensed, licensing scope and time; or request for invalidation or cancellation of a decision on compulsory licensing of a protected plant variety:

b/ Documents evidencing that the modification, invalidation or cancellation of the compulsory licensing decision is based on grounds specified in Clause 2 of this Article without causing any harm to the licensee;

c/ A power of attorney, for requests filed via a representatives;

d/ Fee payment document.

4. Responsibilities of state agencies competent to decide on compulsory licensing of protected plant varieties:

a/ To receive dossiers specified in Clause 3 of this Article;

b/ Within fifteen (15) days after receiving a valid dossier, to examine and issue a decision to modify, invalidate or cancel the decision on compulsory licensing of a plant variety:

c/ In case the request for modification, invalidation or cancellation of a decision on compulsory licensing of a plant variety is not supported with sound grounds as specified in Article 195 of the Law on Intellectual Property, to issue a written reply clearly the reason for the refusal;

d/ To notify its decision to the licensor and licensee for compliance.