Circular No. 03/2021/TT-BNNPTNT amends and supplements certain Articles of Circular No. 16/2013/TT-BNNPTNT dated February 28, 2013, of the Minister of Agriculture and Rural Development on the protection of rights to plant varieties.

CIRCULAR

Amending and supplementing some articles of Circular No. 16/2013/TT-BNNPTNT dated February 28, 2013 issued by the Minister of Agriculture and Rural Development on protecting rights to plant varieties

_________________

Pursuant to Decree No. 15/2017/NĐ-CP dated February 17, 2017 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Agriculture and Rural Development;

Pursuant to the Intellectual Property Law on November 29, 2005; Law Amending and Supplementing Some Articles of the Intellectual Property Law on June 19, 2009;

Pursuant to the Plant Cultivation Law on November 19, 2018;

Pursuant to Decree No. 88/2010/NĐ-CP dated August 16, 2010 of the Government detailing and guiding the implementation of some provisions of the Intellectual Property Law and the Law Amending and Supplementing Some Articles of the Intellectual Property Law on rights to plant varieties and Decree No. 98/2011/NĐ-CP dated October 26, 2011 of the Government amending and supplementing some articles of decrees on agriculture;

Pursuant to Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of some provisions of the Intellectual Property Law on protecting intellectual property rights and state management of intellectual property and Decree No. 119/2010/NĐ-CP dated December 30, 2010 of the Government amending and supplementing some articles of Decree No. 105/2006/NĐ-CP;

Pursuant to Decree No. 94/2019/NĐ-CP dated December 13, 2019 of the Government detailing some provisions of the Plant Cultivation Law on plant varieties and cultivation;

At the proposal of the Director of the Plant Cultivation Department;

The Minister of Agriculture and Rural Development issues this Circular amending and supplementing some articles of Circular No. 16/2013/TT-BNNPTNT dated February 28, 2013 of the Minister of Agriculture and Rural Development on protecting rights to plant varieties.

Article 1. Amending and supplementing some articles of Circular No. 16/2013/TT-BNNPTNT dated February 28, 2013 of the Minister of Agriculture and Rural Development on protecting rights to plant varieties (hereinafter referred to as Circular No. 16/2013/TT-BNNPTNT) as follows:

1. Amending and supplementing Article 1 as follows:

“Article 1. Scope of Regulation

This Circular details the establishment of rights, representation of rights to plant varieties; issuance, reissuance of certificates for plant variety protection; suspension, restoration, revocation of the validity of certificates for plant variety protection.”

2. Amend Clause 2 of Article 4 as follows:

“2. Representing the applicant's authorized agent to handle procedures for plant variety protection according to the regulations on authorization; the power of attorney shall be in accordance with Model I attached to this Circular.”

3. Amend and supplement Article 5 as follows:

“Article 5. General provisions on administrative procedures in this Circular

1. Submission of administrative procedure files: Depending on the conditions for receiving / delivering results of the Plant Cultivation Department, organizations and individuals may submit files directly, send through postal services, or submit via electronic environment (national single window mechanism, online public service, electronic software, email, fax):

a) In case of direct submission or submission through postal services: All file components must be original or certified copies or copies presented with original for comparison or stamped copies from the issuing entity for documents issued by such entity;

b) In case of submission via electronic environment: All file components must be scanned or photographed from the original. File components must be declared and signed with digital signature on the provided electronic forms in accordance with Clause 1, Clause 2 of Article 9 of Decree No. 45/2020/NĐ-CP dated April 8, 2020 of the Government on implementing administrative procedures in electronic environment.

2. Number of files: 01 set.

3. Time limit for responding to completeness of file components:

a) In case of direct submission: The Plant Cultivation Department will check the completeness of the file components and immediately inform the organization or individual about the completeness of the file;

b) In case of submission through postal services: Within no more than 03 working days from the date of receipt of the file, the Plant Cultivation Department will examine the completeness of the file components; if the file is incomplete according to the regulations, it will notify the organization or individual in writing;

c) In case of submission via electronic environment: Within no more than 08 hours from the time of receipt of the file, the Plant Cultivation Department will examine the completeness of the file components; if the file is incomplete according to the regulations, it will notify the organization or individual.

4. Method of payment of fees for administrative procedures: Organizations and individuals pay fees according to current regulations directly at the Plant Cultivation Department or through other services as prescribed by law.

5. Method of delivering results: The Plant Cultivation Department delivers the result of administrative procedure resolution directly at the place where the file was received or sends it through postal services or via electronic environment.

6. In cases where the administrative procedures stipulated in this Circular differ from those specified in Clauses 1, 2, 3, 4, and 5 of this Article, they shall be implemented according to the provisions of this Circular.

7. In cases where documents in the file specified in Clause 2 of Article 174 of the Intellectual Property Law must be translated into Vietnamese, the translation must be notarized or confirmed by the registrant.

8. Organizations and individuals are responsible under the law for the authenticity of the submitted file.”

4. Amending and supplementing Article 6 as follows:

“Article 6. Plant varieties known widely and novelty of plant varieties

1. Plant varieties known widely are plant varieties falling under one of the following cases:

a) Plant varieties where propagation material or harvested material of such variety is widely used on the market in Vietnam or in any country at the time of filing the application for protection;

b) Plant varieties that have been protected or recognized for circulation or special recognition for circulation, self-declared for circulation, recognized for trial production, officially recognized in Vietnam, or included in the list of varieties permitted for production and business in any country;

c) Plant varieties that are the subject of an application for registration with the purpose of: protecting plant varieties; recognizing circulation or special recognition for circulation; list of varieties in any country, if these applications are not refused.

2. Novelty of plant varieties

A plant variety is considered to no longer be novel twelve (12) months from the date it is permitted for production and business in Vietnam. Permitted varieties for production and business include: officially recognized varieties; varieties listed in the list of plant varieties permitted for production and business in Vietnam; varieties granted a decision for circulation recognition or special circulation recognition; varieties self-declared for circulation published on the electronic information website of the Crop Production Department.

5. Amend and supplement Article 7 as follows:

“Article 7. Forms for protection of rights over plant varieties

1. The application form for transferring rights over plant varieties according to Form at Appendix II issued together with this Circular.

2. The application form for compulsory transfer of rights to use plant varieties according to Form at Appendix III issued together with this Circular.

6. Amend and supplement Article 8 as follows:

“Article 8. Fees and charges for protection of rights over plant varieties

1. Fees and charges for the protection of rights over plant varieties shall be implemented in accordance with the provisions of Circular No. 207/2016/TT-BTC dated November 9, 2016, of the Minister of Finance stipulating the collection, payment, management, and use of fees and charges in the field of crop production and forest tree seed (hereinafter referred to as Circular No. 207/2016/TT-BTC).

2. The deadline for paying maintenance fees shall be in accordance with Clause 2, Article 24 of Decree No. 88/2010/NĐ-CP dated August 16, 2010, of the Government detailing and guiding the implementation of certain articles of the Intellectual Property Law and the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law concerning rights over plant varieties (hereinafter referred to as Decree No. 88/2010/NĐ-CP).

3. In case Circular No. 207/2016/TT-BTC is amended, supplemented, or replaced by another regulatory document, the new document shall apply.

7. Amend and supplement Article 9 as follows:

“Article 9. Acceptance of Applications and Transfer of Application Filing Rights for Protection of Plant Varieties

1. An application for protection of rights over plant varieties includes the following documents:

a) The application form for protection of plant varieties according to Form at Appendix IV issued together with this Circular;

b) The technical report on examination of distinctness, uniformity, and stability (DUS examination)

- In case the registered variety belongs to a crop species with guidance documents, examination regulations, National Technical Regulations (QCVN), National Standards (TCVN) on DUS examination in Vietnam/UPOV: use the technical report forms in these documents;

- In case the registered variety does not belong to a crop species with guidance documents, examination regulations, QCVN, TCVN on DUS examination in Vietnam/UPOV: use the technical report form at Appendix V issued together with this Circular;

c) Power of attorney according to Form at Appendix I issued together with this Circular (in case the application is submitted through a representative);

d) Photographs of the variety sample: At least three color photographs, minimum size 9cm x 15cm, showing three characteristic traits of the registered variety;

đ) Documents proving the right to register (transfer agreement for the right to use the plant variety, documents proving the applicant is the legitimate representative of the owner of the registered variety);

e) Documents proving priority rights, if the application claims priority rights;

g) Payment receipts for fees and charges.

2. The date of acceptance of the application for protection of plant varieties is the date when the Crop Production Department receives all required documents as stipulated in Clause 1 of this Article.

3. Notification of acceptance of the application for protection of plant varieties according to Form at Appendix VI issued together with this Circular.

4. Before the Crop Production Department issues a decision to grant a certificate of protection for the plant variety or notifies refusal to grant such a certificate, the applicant has the right to transfer the right to file the application for protection of the plant variety to another person. The transferee shall submit the transfer agreement for the right to file the application for protection of the plant variety to the Crop Production Department.

8. Amend and supplement Article 10 as follows:

“Article 10. Amending and supplementing the application for plant variety protection registration

1. Prior to the issuance of the certificate of plant variety protection, organizations and individuals may amend and supplement the application for plant variety protection registration in the following cases:

a) Amending and supplementing the application without changing the nature of the application for plant variety protection registration: typographical errors in the name and address of the applicant, owner, author, and name of the plant variety;

b) Changing the name and address of the applicant, owner, and author of the plant variety based on legal grounds;

c) Changing the name and address of the applicant at the request of the owner (in the case of filing through a representative); changing the name and address of the owner and author of the plant variety due to the transfer of the application according to a contract or inheritance.

2. Documents:

a) A form requesting amendment and supplementation of the application as set out in Appendix VII issued together with this Circular;

b) A certified copy of the transfer contract (in the case of transferring the application for registration); or legal basis proving the change of the name and address of the applicant, owner, and author of the plant variety;

c) Documents proving inheritance or succession (with confirmation from the registered owner), documents proving the personal rights between the registered owner and the heir; death certificate or extract of death record of the registered owner (if available);

d) Power of attorney as set out in Appendix I issued together with this Circular in the case of changing the representative.

3. Procedure and time limit:

Within fifteen working days from the date of receipt of complete files, the Crop Production Department shall organize the examination of the file. In case the file is valid, the Crop Production Department shall issue a notice accepting the amendment and supplementation, return the result to the applicant, and publish the notice on the Crop Production Department's electronic portal. In case the file is invalid, the Crop Production Department shall reply in writing to the applicant specifying the reasons.

4. Requests to amend and supplement the application for plant variety protection registration that do not fall under the cases stipulated in Clause 1 of this Article shall resubmit the application for plant variety protection registration.

9. Amend and supplement Article 16 as follows:

“Article 16. DUS Testing Conducted by the Applicant

1. In addition to the documents prescribed in Article 174 of the Intellectual Property Law, the applicant who conducts their own DUS testing for the registered plant variety shall submit the following additional documents:

a) A detailed declaration of conditions for self-conducted DUS testing as set out in Appendix VIII issued together with this Circular, consistent with specific requirements in the guidance documents, testing regulations, QCVN, TCVN on DUS testing of Vietnam/UPOV for each type of crop;

b) A plan for DUS testing as set out in Appendix IX issued together with this Circular.

2. The Crop Production Department shall examine the application for conducting self-DUS testing. The applicant shall contact the recognized DUS testing organization to cooperate in implementing the inspection and evaluation of the DUS testing. For crops without a recognized DUS testing organization, the Crop Production Department shall establish a technical inspection team. The team includes members of the Plant Variety Protection Office, experts from the recognized DUS testing organization, and experts on the specific crop.

3. For crops without guidance documents, testing regulations, QCVN, TCVN on DUS testing of Vietnam/UPOV, they shall be implemented according to guidance documents issued by the Crop Production Department.

4. On-site Inspection

a) For crops without a recognized DUS testing organization, the technical inspection team shall evaluate the DUS testing experiment at least once at an appropriate time according to guidance documents, testing regulations, QCVN, TCVN on DUS testing of Vietnam/UPOV or guidance documents issued by the Crop Production Department.

b) Content of the inspection: compliance with conditions for self-testing by the organization or individual applying; implementation of the testing; assessment of distinctiveness compared to the most similar variety; uniformity, stability.

c) The on-site inspection report shall be prepared as set out in Appendix X issued together with this Circular and kept in the plant variety protection registration file. The Crop Production Department shall base its examination of the DUS testing report submitted by the applicant on the on-site inspection report.

5. Within forty-five working days from the end of the testing period, the organization or individual conducting self-DUS testing shall submit to the Crop Production Department a report on the results of the DUS testing as set out in Appendix XI issued together with this Circular.

10. Amend and supplement Article 17 as follows:

“Article 17. Time limit for submitting seed samples, managing and using seed samples of plant varieties

1. For plant varieties subject to testing under point a, Clause 1, Article 15 of Decree No. 88/2010/NĐ-CP: If the application for protection of a plant variety is accepted, the applicant must submit seed samples for DUS testing and retain seed samples with the recognized testing organization at least 20 days before the first planting season.

2. For plant varieties subject to testing under points b, c, and d, Clause 1, Article 15 of Decree No. 88/2010/NĐ-CP, and vegetatively propagated plant varieties: the owner shall retain seed samples themselves.

3. The quantity and quality of seed samples submitted for testing and retained shall comply with the provisions set forth in the guidance documents, testing regulations, QCVN, TCVN on DUS testing for that species of plant in Vietnam/UPOV.

4. The owner of a protected plant variety is responsible for submitting protected seed samples when requested by the competent state authority during the period of validity of the protection of such plant variety. Seed samples must meet the quality requirements stipulated in Clause 3 of this Article, and the expression of traits must be consistent with the variety description at the time of application for protection.

5. Seed samples must be retained for a period of 25 years for woody plants and grapevines; 20 years for other plant varieties from the date of issuance of the certificate of protection of the plant variety.

6. The use of retained seed samples outside the purposes of DUS testing, inspection, post-inspection to determine the correctness of the variety or to resolve disputes or complaints must be agreed upon in writing by the owner of the plant variety.

11. Amend and supplement Article 19 as follows:

“Article 19. Issuance and reissuance of certificates of protection for plant varieties

1. Issuance of certificates of protection for plant varieties

a) Documents: Report on the results of DUS testing according to the Form attached at Appendix XI issued together with this Circular.

b) Procedures for implementation shall be carried out in accordance with Article 20 of Decree No. 88/2010/NĐ-CP. Certificates of protection for plant varieties shall be issued according to the Form attached at Appendix XII issued together with this Circular.

2. Reissuance of certificates of protection for plant varieties

The owner has the right to request the reissue of a certificate of protection for a plant variety in the following cases: loss, damage, deterioration, fading to the extent that it cannot be read, change of ownership, or errors related to the name and address of the certificate holder.

a) Documents:

Application form for reissuing a certificate of protection for a plant variety according to the Form attached at Appendix XIII issued together with this Circular;

Legal documents proving the change of name and address of the certificate holder for a plant variety in the case of a change of ownership or errors related to the name and address of the certificate holder;

Original certificate of protection for a plant variety (except in the case of loss of the certificate);

Power of attorney according to the Form attached at Appendix I issued together with this Circular in the case of submission through a representative.

b) Procedures for implementation:

Within 15 working days from the date of receipt of all documents, the Crop Cultivation Department will organize the review of the documents. In the case of valid documents, the Crop Cultivation Department will decide to reissue the certificate of protection for a plant variety and deliver the result to the applicant. In the case of invalid documents, the Crop Cultivation Department will respond in writing to the applicant and clearly state the reasons.

c) In the event of objections to the reissuance of a certificate of protection for a plant variety from a third party, the handling of objections shall be carried out in accordance with the provisions of Article 184 of the Intellectual Property Law.

d) The reissued certificate of protection for a plant variety will be issued 30 days from the date of publication of the decision to reissue in the Agricultural and Rural Development Magazine. The reissued certificate of protection for a plant variety must retain the original number and clearly indicate the content "reissued" in the lower left corner of the certificate of protection.

12. Amend and supplement Article 20 as follows:

“Article 20. Suspension, Restoration, and Revocation of Effectiveness of Plant Variety Protection Certificates

1. The procedures and formalities for suspending the effectiveness of a Plant Variety Protection Certificate due to no longer meeting the conditions of uniformity and stability at the time of issuance shall be carried out in accordance with the provisions of Article 21 of Decree No. 88/2010/NĐ-CP. Other cases of suspending the effectiveness of a Plant Variety Protection Certificate shall be implemented in accordance with the provisions of Article 170 of the Intellectual Property Law.

2. Restoration of the effectiveness of a Plant Variety Protection Certificate

a) The owner of a Plant Variety Protection Certificate who has remedied the reasons for suspension as stipulated in Clause 5 of Article 170 of the Intellectual Property Law.

The application dossier for restoring the effectiveness of a Plant Variety Protection Certificate includes: A request for restoration of the effectiveness of a Plant Variety Protection Certificate; Evidence proving that the reasons for suspension have been remedied; Receipts for fees paid for restoring the effectiveness of a Plant Variety Protection Certificate.

b) Within fifteen working days from the date of receiving a complete dossier, the Crop Cultivation Department shall organize the examination of the dossier. In case the dossier is valid, the Crop Cultivation Department shall issue a decision to restore the effectiveness of a Plant Variety Protection Certificate and deliver the result to the applicant. The decision to restore the effectiveness of a Plant Variety Protection Certificate shall be published in the Agricultural Science & Rural Development Magazine. If the dossier is not valid, the Crop Cultivation Department shall reply in writing to the applicant, clearly stating the reasons.

3. Revocation of the effectiveness of a Plant Variety Protection Certificate

When it is determined that the third party's objection regarding one of the cases specified in Clause 1 of Article 171 of the Intellectual Property Law constitutes sufficient legal grounds, the competent state agency shall issue a decision to revoke the effectiveness of a Plant Variety Protection Certificate and publish it in the Agricultural Science & Rural Development Magazine.

13. Replace Appendix 1 with Appendix I; Appendix 3 with Appendix II; Appendix 4 with Appendix III; Appendix 5 with Appendix IV; Appendix 6 with Appendix VI; Appendix 7 with Appendix VII; Appendix 11 with Appendix VIII; Appendix 12 with Appendix IX; Appendix 9 with Appendix X; Appendix 13 with Appendix XI; Appendix 14 with Appendix XII; Appendices 15 and 16 with Appendix XIII accompanying this Circular.

Article 2. Repeal certain provisions of Circular No. 16/2013/TT-BNNPTNT

Repealed: Article 11, Article 12, Article 13, Article 14, Article 15, Article 21, Article 22, Article 27, Article 28, Article 29, and Appendices 2, 10, 17.

Article 3. Effectiveness

1. This Circular takes effect from August 6, 2021.

2. Circular No. 41/2009/TT-BNNPTNT dated July 9, 2009 of the Ministry of Agriculture and Rural Development on the management and use of Seed Samples becomes invalid from the date this Circular takes effect.

3. Transitional Provisions:

a) Applications for plant variety protection certificates submitted before the effective date of this Circular shall be processed in accordance with Circular No. 16/2013/TT-BNNPTNT and related laws in force; the procedures and formalities for amending and supplementing applications for plant variety protection certificates; amending, supplementing, and reissuing plant variety protection certificates shall be carried out in accordance with this Circular.

b) Dossiers for transferring applications for plant variety protection certificates; dossiers for suspending, restoring, and revoking the effectiveness of plant variety protection certificates; dossiers for handling objections from third parties submitted before the effective date of this Circular shall be processed in accordance with Circular No. 16/2013/TT-BNNPTNT and related laws in force.

4. The Director of the Crop Cultivation Department, the Head of the Ministry’s Office, the Heads of units under the Ministry, and relevant organizations and individuals are responsible for implementing this Circular.

5. During implementation, if there are difficulties or obstacles, organizations and individuals shall promptly report to the Ministry of Agriculture and Rural Development for consideration and resolution./.