Decree 88/2010/ND-CP

This Decree details and guides a number of articles of the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property regarding rights to plant varieties...

DECREES

DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY AND THE LAW AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE LAW ON INTELLECTUAL PROPERTY REGARDING RIGHTS TO PLANT VARIETIES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property;
At the proposal of the Minister of Agriculture and Rural Development,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides a number of articles of the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property regarding rights to plant varieties, covering responsibilities for state management of rights to plant varieties: order of and procedures for establishing rights to plant varieties; rights and obligations of plant variety protection certificate holders and plant variety breeders; licensing and assignment of rights to protected plant varieties; and representation of rights to plant varieties.

Article 2. Subjects of application This Decree applies to:

1. Vietnamese organizations and individuals;

2. Foreign organizations and individuals defined in Clause 18. Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Properly.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Applicant means an organization or individual that has the right to file an application for registration of rights to plant varieties under Clause 2. Article 164 of the Law on Intellectual Properly;

2. Application submitter means the applicant or a lawful representative of the applicant;

3. Plant variety protection certificate holder means an organization or individual that is granted a plant variety protection certificate;

4. Plant variety breeder means a person who directly selects and breeds or discovers and develops a new plant variety: in case two persons jointly select and breed or discover and develop a new plant variety, they are co-breeders.

5. Plant variety protection agency is the Office for Protection of Plant Varieties at the Ministry of Agriculture and Rural Development;

6. Country having concluded with Vietnam an agreement on the protection of rights to plant varieties means a member country of the International Convention for the Protection of New Plant Varieties (UPOV) or any country which has concluded with Vietnam a bilateral agreement on the protection of rights to plant varieties.

7. Discovery and development of a new plant variety:

a/ Discovery of a new plant variety means the selection of natural variants;

b/ Development of a new plant variety means the process of propagating and assessing these natural variants.

8. Detailed description of a plant variety (referred to as variety description) means a document expressing the characteristics of a plant variety made under the process of testing the distinctness, uniformity and stability and certified by the plant variety protection agency. A variety description is considered having been already published when it has been made available to the public in such form as scientific report or news report: or an article in newspapers, magazines or other publications;

Article 4. Responsibilities of ministries and ministerial-level agencies for the protection of rights to plant varieties

1. The Ministry of Agriculture and Rural Development shall perform the stale management of the protection of rights to plant varieties nationwide and have the following responsibilities:

a/ To submit to competent authorities for promulgation or to promulgate according to its competence legal documents on the protection of rights to plant varieties and organize the implementation;

b/ To grant, re-grant, withdraw, invalidate or cancel plant variety protection certificates;

c/ To promulgate a list of protected plant varieties; processes and procedures of technical tests of plant varieties;

d/ To define the organization, functions, tasks and powers of the plant variety protection agency; to designate and manage the operation of organizations and individuals conducting technical tests of plant varieties;

e/ To disseminate and educate about the law on protection of rights to plant varieties;

f/ To examine, inspect and handle administrative violations in the protection of rights to plant varieties:

g/ To undertake international cooperation on the protection of rights to plant varieties;

h/ To manage activities of representing rights to plant varieties; to accredit and expunge rights-to-plant varieties representation service providers; to grant and withdraw- rights-to-plant varieties representation practice certificates;

i/ To provide information and make statistics on the protection of rights to plant varieties;

j/ To issue forms on the protection of rights to plant varieties.

2. The Ministry of Finance shall assume the prime responsibility for. and coordinate with the Ministry of Agriculture and Rural Development in. guiding the collection, management and use of charges and fees for the protection of rights to plant varieties.

3. The Ministry of Science and Technology and other ministries, ministerial-level agencies and government-attached agencies shall, within the scope of their assigned tasks and powers, coordinate with the Ministry of Agriculture and Rural Development in performing the state management of the protection of rights to plant varieties.

Article 5. Responsibilities of provincial-level People's Committees for the protection of rights to plant varieties

1. To organize the implementation of policies and law on the protection of rights to plant varieties.

2. To disseminate and propagate the law on the protection of rights to plant varieties.

3. To examine, inspect and handle administrative violations in the protection of rights to plant varieties.

4. To direct People's Committees of districts, provincial towns or cities in taking measures of state management of the protection of rights to plant varieties in their localities.

Chapter II

ORDER OF AND PROCEDURES FOR ESTABLISHING RIGHTS TO PLANT VARIETIES

Article 6. Registration for the protection of rights to plant varieties selected and bred or discovered and developed with state budget funds

1. For a plant variety which is selected and bred or discovered and developed with state budget funds, the ownership right to that plant variety shall be assigned by the State to the organization directly selecting and breeding or discovering and developing that plant variety, which shall file an application for registration for the protection of rights to the plant variety and may perform the rights of a protection certificate holder specified in Article 186 of the Law on Intellectual Property.

2. For a plant variety which is selected and bred or discovered and developed with different capital sources, including state budget fund, the organization assigned by the State to use slate funds which is directly engaged in the selection and breeding or discovery and development of that plant variety shall be assigned to act as the owner of the state fund portion and file a protection registration application corresponding to the proportion of the state fund.

Article 7. Responsibilities of applicants and representatives of applicants

1. Application submitters shall ensure the truthfulness of information and documents provided to the plant variety protection agency in the process of registering for the protection of rights to plant varieties:

a/ All submitted documents must be signed by the applicant or his/her representative and affixed with their stamp (for organizations) for certification;

b/ All Vietnamese versions of foreign-language documents must be authentic translations of original documents.

2. Applicants shall take responsibility for all consequences and obligations arisen from transactions between their representatives and the plant variety protection agency.

3. Applicants' representatives shall take responsibility before applicants for all consequences caused by the declaration and supply of untruthful information in their transactions with the plant variety protection agency. If causing damage, they shall pay compensations.

Article 8. Applications for registration for the protection of rights to plant varieties

1. An application for registration for the protection of rights to a plant variety defined in Article 174 of the Intellectual Property Law shall be made in 2 sets and submitted to the plant variety protection agency.

2. In addition to the documents specified in Clauses 1. 2 and 3. Article 174 of the Law on Intellectual Property, an application of an organization or individual from a country which has concluded with Vietnam an agreement on the protection of rights to plant varieties defined in Clause 18. Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property that has no residence address or production or business establishment in Vietnam shall be enclosed with necessary and sufficient papers to certify its/his/ her nationality or headquarters.

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Article 40. Effect

This Decree takes effect on October 1, 2010, and replaces the Government's Decree No. 104/ 2006/ND-CP of June 22. 2006, detailing and guiding a number of articles of the Law on Intellectual Property regarding plant varieties.

Article 41. Implementation provisions

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People's Committees shall implement this Decree.-