Chương 4 Pháp lệnh 15/2004/PL-UBTVQH11: Bảo hộ giống cây trồng mới

Chapter IV

PROTECTION OF NEW PLANT VARIETIES

Article 20.- Principles of protection of new plant varieties

1. The State protects the ownership, copyright over new plant varieties in the form of granting new plant variety protection titles.

2. The Ministry of Agriculture and Rural Development is the agency performing the State management over the protection of new plant varieties nationwide.

3. The protection of new plant varieties must comply with the provisions of this Ordinance, the legislation on intellectual property and other relevant law provisions.

Article 21.- Conditions for new plant varieties to be protected

1. Being on the list of State-protected plant varieties, promulgated by the Ministry of Agriculture and Rural Development.

2. Being distinct, uniform and stable.

3. Being commercially novel.

4. Having appropriate names as prescribed in Article 17 of this Ordinance.

Article 22.- Subjects entitled to apply for new plant variety protection titles

1. Organizations that select, create new plant varieties with the State budget capital or with capital of other sources.

2. Individuals who select, create new plant varieties with their own efforts and/or capital or with capital of other sources.

3. Contract owners that hire organizations, individuals to select, create new plant varieties, unless otherwise agreed upon in the contracts.

4. Organizations or individuals that have sufficient grounds to prove that they are the first to select, create the new plant varieties in cases where many organizations or individuals submit dossiers on the same day for the same new plant varieties; where it is impossible to determine the organization or individual that is the first to select, create such new plant variety, the involved parties may reach agreement on jointly submitting the dossier or on one party submitting the dossier, if they cannot reach such agreement, the New Plant Variety Protection Office shall be entitled to reject their dossiers.

5. Organizations, individuals being the first to submit dossiers in cases where many organi-zations or individuals apply for new plant variety protection titles to the same new plant varieties.

Article 23.- Dossiers of application for new plant variety protection titles

1. To apply for new plant variety protection titles, organizations and individuals must directly submit, or authorize organizations or individuals to act as their representatives to submit, dossiers to the New Plant Variety Protection Office.

2. A dossier of application for a new plant variety protection title consists of:

a/ The application for a new plant variety protection title;

b/ A written description of the plant variety, made according to a set form, together with photos.

Dossiers must be made in Vietnamese. Where foreign organizations or individuals apply for new plant variety protection titles, they must submit the Vietnamese-language dossiers together with the English-language dossiers.

3. Where a dossier of application for a new plant variety protection title complies with the provisions of Clause 2 of this Article, the New Plant Variety Protection Office must give certification of the date of submission of the dossier, clearly writing the dossier’s serial number.

Article 24.- Order and procedures for granting new plant variety protection titles

1. The New Plant Variety Protection Office shall evaluate the dossiers, organize the evaluation of the new plant varieties applied for protection titles according to the provisions of Articles 25 and 26 of this Ordinance, and propose the Minister of Agriculture and Rural Development to grant new plant variety protection titles.

2. The Minister of Agriculture and Rural Development shall consider and decide to grant new plant variety protection titles when such new plant varieties fully satisfy the conditions specified in Articles 21, 22, 23, 25 and 26 of this Ordinance.

At the requests of the owners of new plant variety protection titles, the Minister of Agriculture and Rural Development shall consider and grant duplicates of their new plant variety protection titles.

Article 25.- Evaluation of dossiers of application for new plant variety protection titles

1. Within fifteen days as from the date of receiving the dossiers of application for new plant variety protection titles, the New Plant Variety Protection Office must certify the validity of such dossiers; where a dossier is not valid, it must notify the submitter thereof. Within thirty days as from the date of receiving the notice that his/her/its dossier is not valid, the submitter must complete his/her/its dossier as required; if such dossier remains invalid, the New Plant Variety Protection Office shall refuse to accept it. The date of submission of a valid dossier is the date the New Plant Variety Protection Office accepts to receive the dossier.

2. The New Plant Variety Protection Office must complete the evaluation of dossiers within ninety days as from the date the valid dossiers of application for new plant variety protection titles are submitted.

The evaluation of a dossier covers:

a/ Determining the eligibility of the dossier submitter;

b/ Determining the compatibility of the new plant variety with the list of State-protected plant varieties as prescribed in Clause 1, Article 21 of this Ordinance;

c/ Determining the compliance of the new plant variety to be protected in Vietnam with international agreements which Vietnam has signed or acceded to;

d/ Determining the compliance of the new plant variety with the law provisions on protection of State secrets;

e/ Determining the commercial novelty of the plant variety;

f/ Determining the appropriateness of the plant variety's name as prescribed in Article 17 of this Ordinance.

3. In the course of evaluating the dossiers, the New Plant Variety Protection Office may request the dossier submitters to correct mistakes; if the dossiers are not corrected, the New Plant Variety Protection Office may reject them.

4. After evaluating the dossiers, if finding that they are valid the New Plant Variety Protection Office shall accept them in writing, notify such acceptance in a specialized journal and to the submitters for carrying out the procedures for new plant variety assay and evaluation as prescribed in Article 26 of this Ordinance.

Article 26.- Assay, evaluation of new plant varieties applied for new plant variety protection titles

1. Within fifteen days as from the date of receiving the New Plant Variety Protection Office's notices on its acceptance of the valid dossiers, the submitters of the dossiers of application for new plant variety protection titles must submit the variety samples to the new plant variety-assaying establishments.

2. The new plant variety-assaying establish-ments must assay the distinctness, uniformity and stability (DUS) of the new plant varieties according to the assay regulations on each plant species, promulgated by the Ministry of Agriculture and Rural Development.

3. The New Plant Variety Protection Office shall evaluate the DUS assay results of the new plant variety-assaying establishments.

4. After receiving the assay results, the New Plant Variety Protection Office shall have the following responsibilities:

a/ To notify its intention to grant new plant variety protection titles in a specialized journal for three successive issues;

b/ Within thirty days as from the date the notice on its intention to grant new plant variety protection titles is published for the last time in the specialized journal, if there is no written protest, to carry out the procedures to propose the Minister of Agriculture and Rural Development to grant new plant variety protection titles. Where there is a protest, within thirty days as from the date of receiving the protest, the New Plant Variety Protection Office must look into it and make conclusions thereon;

c/ In cases of refusing to grant new plant variety protection titles, to notify such and clearly state the reasons therefor to the dossier submitters; and at the same time notify its refusal in the specialized journal for three successive issues.

5. Within thirty days as from the date of receiving the notices stated at Point b, Point c, Clause 4 of this Article, the dossier submitters may send written complaints to the Minister of Agriculture and Rural Development about not being granted the new plant variety protection titles.

6. After the Minister of Agriculture and Rural Development issues decisions to grant new plant variety protection titles, the New Plant Variety Protection Office shall notify the new plant varieties granted the new plant variety protection titles in the specialized journal.

Article 27.- Rights of owners of new plant variety protection titles

1. To allow or disallow the use of propagating materials of the protected plant varieties, the products harvested from the cultivation of propagating materials of the protected plant varieties in the following activities:

a/ Variety production or propagation;

b/ Variety processing;

c/ Sale offer;

d/ Sale or other forms of exchange;

e/ Export;

f/ Import;

g/ Storing for the purposes of carrying out the activities stated at Points a, b, c, d and e of this Clause.

2. To request competent bodies to handle acts of infringing upon their ownership of the new plant varieties already granted the new plant variety protection titles.

3. Apart from the rights defined in Clause 1 and Clause 2 of this Article, the owners of new plant variety protection titles shall also enjoy benefits in the following cases:

a/ Plant varieties created by anyone from their protected varieties provided that their protected varieties are not created from other protected plant varieties;

b/ Plant varieties created by anyone, which are not clearly distinct from their protected plant varieties;

c/ Plant varieties created by anyone, the production of which requires the use of propagating materials of their protected plant varieties;

d/ Using the propagating materials of their protected varieties for producing varieties for commercial purposes in other countries where such plant varieties are not yet protected.

4. To exploit by themselves or transfer under contracts the right to exploit new plant varieties to other organizations and individuals. Contracts on transfer of the right to exploit new plant varieties must be made in writing and registered at the New Plant Variety Protection Office.

5. To bequeath or transfer the right to own new plant variety protection titles according to law provisions in cases where they are concurrently authors; to transfer the right to own new plant variety protection titles in cases where they are not concurrently authors.

Article 28.- Restriction of the rights of owners of new plant variety protection titles

1. The owners of new plant variety protection titles may exercise the right to commercially exploit the new plant varieties when such plant varieties are on the list of plant varieties permitted for production and trading.

2. For the interests of the nation or community, the Minister of Agriculture and Rural Development shall issue decisions to force the transfer of the protected new plant varieties and add the names of such plant varieties to the list of plant varieties permitted for production and trading if such plant varieties are not yet included in this list.

Organizations, individuals being transferees of the right to exploit new plant varieties must pay royalties as contracted to the owners of new plant variety protection titles.

Article 29.- Cases where royalties are not required to be paid to owners of new plant variety protection titles

1. Organizations, individuals using the protected plant varieties shall not have to pay royalties to the owners of new plant variety protection titles in the following cases:

a/ Using them for hybridization to create new plant varieties or for scientific research;

b/ Using for personal needs for non-commercial purposes;

c/ The new plant varieties or propagating materials thereof have been sold on the market by the owners of new plant variety protection titles.

2. Households, individuals using the propagating materials of the protected plant varieties for propagation for subsequent crops in the land or water surface areas under their use right.

Article 30.- Obligations of owners of new plant variety protection titles

1. To preserve directly or through other authorized persons, the propagating materials of the protected varieties and supply such propagating materials at the request of competent State bodies.

2. To pay charges and fees for new plant variety protection according to the law provisions on charges and fees.

3. To pay remunerations to the authors in cases where the authors are not also owners, unless otherwise agreed upon by the owners and authors. Where the owners of new plant variety protection titles are foreign organizations or individuals having registered for protection in Vietnam, the payment of remunerations to authors shall comply with the laws of the countries of such foreign organizations or individuals.

Article 31.- Rights and obligations of authors of new plant varieties

1. The authors of new plant varieties who are also owners of the protection titles of such new plant varieties shall have the following rights and obligations:

a/ To have their names inscribed in the new plant variety protection titles;

b/ To enjoy the rights of new plant variety protection title owners as prescribed in Article 27 of this Ordinance;

c/ To fulfill the obligations of new plant variety protection title owners as prescribed in Clause 1 and Clause 2, Article 30 of this Ordinance.

2. The authors of new plant varieties, who are not concurrently owners of the protection titles of such new plant varieties, shall have the following rights and obligations:

a/ To have their names inscribed in the new plant variety protection titles;

b/ To receive remunerations paid by the owners of the new plant variety protection titles as prescribed in Clause 3, Article 30 of this Ordinance;

c/ To request competent bodies to handle infringements of the rights prescribed at Point a, Point b of this Clause;

d/ To assist the owners of new plant variety protection titles in performing the obligation of preserving the propagating materials of the protected new plant varieties.

Article 32.- Priority right to determine the date of submission of valid dossiers

1. If the owners of new plant varieties, that have submitted dossiers of registration for protection of such new plant varieties in the countries which have, together with Vietnam, signed or acceded to the international agreements on protection of new plant varieties, submit, within twelve months as from the date of submission of dossiers in the foreign countries, dossiers of registration for protection of such plant varieties in Vietnam, they shall enjoy the priority right to determine the date of submission of valid dossiers.

The date of submission for the first valid dossiers in foreign countries is accepted as the date of submission of valid dossiers in Vietnam.

2. Within ninety days as from the date of submission of dossiers in Vietnam, the owners of new plant varieties must submit the copies of the first dossiers of registration for protection in foreign countries, with the certification of the dossier-receiving agencies, and the samples of the plant varieties as evidences to prove that the new plant varieties in the two dossiers are the same. The dossiers of registration for protection of new plant varieties in Vietnam must contain the request to enjoy the priority right to determine the date of submission of valid dossiers.

Article 33.- Duration of protection of new plant varieties

1. The duration of protection of new plant varieties is twenty years for timber trees and twenty five years for grapes.

2. Protection shall start from the date the dossiers of application for new plant variety protection titles are accepted as being valid by the New Plant Variety Protection Office.

Article 34.- Suspension of new plant variety protection titles

1. The Minister of Agriculture and Rural Development may suspend new plant variety protection titles.

2. New plant variety protection titles shall be suspended in one of the following cases:

a/ The plant varieties no longer satisfy the uniformity and stability standards as when being granted the protection titles;

b/ The owners of new plant varieties fail to supply documents and propagating materials necessary for the preservation and storage of such new plant varieties at the requests of competent State bodies;

c/ Past three months counting from the prescribed date of subsequent payment of fees, the owners of new plant variety protection titles fail to pay fees for maintaining the validity of their new plant variety protection titles.

3. In the duration when their new plant variety protection titles are suspended, the owners of new plant varieties shall not have the rights prescribed in Article 27 and Clause 1, Article 28, of this Ordinance.

4. The new plant variety protection titles shall be considered for validity resumption when their owners remedy the causes of suspension prescribed in this Article.

Article 35.- Cancellation of new plant variety protection titles

1. The Minister of Agriculture and Rural Develop-ment may cancel new plant variety protection titles.

2. New plant variety protection titles shall be cancelled in one of the following cases:

a/ The owners of new plant variety protection titles voluntarily propose the cancellation;

b/ There are evidences to prove that the owners of new plant variety protection titles are not eligible for being granted the new plant variety protection titles as prescribed by law;

c/ The plant varieties are not commercially novel, not distinct as determined at the time of being granted the new plant variety protection titles.