Circular No. 04/2012/TT-BKHCN amending and supplementing certain provisions of Circular No. 01/2008/TT-BKHCN dated February 25, 2008 guiding the issuance and revocation of Industrial Property Appraiser Cards and Certificates of Organizations Eligible for Industrial Property Appraisal Activities, which has been amended and supplemented according to Circulars No. 04/2009/TT-BKHCN dated March 27, 2009 and No. 18/2011/TT-BKHCN dated July 22, 2011.

CIRCULAR

Amending and supplementing certain provisions of Circular No. 01/2008/TT-BKHCN

dated February 25, 2008 guiding the issuance and revocation of Intellectual Property Ownership Appraisal Cards and Certificates of Organizations Meeting Conditions for Intellectual Property Appraisal Activities, which have been amended and supplemented by Circular No. 04/2009/TT-BKHCN dated March 27, 2009 and Circular No. 18/2011/TT-BKHCN dated July 22, 2011

Intellectual Property Ownership Appraisal Cards and Certificates of Organizations Meeting Conditions for Intellectual Property Appraisal Activities

industry, amended and supplemented by Circular No. 04/2009/TT-BKHCN dated March 27, 2009, and Circular No. 18/2011/TT-BKHCN dated July 22, 2011

2009 and Circular No. 18/2011/TT-BKHCN dated July 22, 2011

___________________________

Pursuant to the Intellectual Property Law No. 50/2005/QH11 dated November 29, 2005 and Law No. 36/2009/QH12 dated June 19, 2009 amending and supplementing certain articles of the Intellectual Property Law dated November 29, 2005 (hereinafter referred to as the "Intellectual Property Law");

Pursuant to Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain articles 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 certain articles of Decree No. 105/2006/NĐ-CP (hereinafter referred to as the "Amended Decree No. 105/2006/NĐ-CP");

Pursuant to Decree No. 28/2008/NĐ-CP dated March 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

The Minister of Science and Technology amends and supplements certain provisions of Circular No. 01/2008/TT-BKHCN dated February 25, 2008 guiding the issuance and revocation of Intellectual Property Ownership Appraisal Cards and Certificates of Organizations Meeting Conditions for Intellectual Property Appraisal Activities, which have been amended and supplemented by Circular No. 04/2009/TT-BKHCN dated March 27, 2009 and Circular No. 18/2011/TT-BKHCN dated July 22, 2011 (hereinafter referred to as "Circular No. 01/2008/TT-BKHCN") as follows:

Article 1. Amending and supplementing certain provisions of Circular No. 01/2008/TT-BKHCN:

1. Amending Clause 1 Section I of Circular No. 01/2008/TT-BKHCN as follows:

"1. Intellectual Property Appraisal Specialties

The fields of intellectual property appraisal specified in Article 201 of the Intellectual Property Law and Point b Clause 2 Article 39 of the Amended Decree No. 105/2006/NĐ-CP include the following specialties:
a) Patent and Integrated Circuit Layout Design Appraisal;
b) Industrial Design Appraisal;
c) Trademark and Geographical Indication Appraisal;
d) Other Intellectual Property Rights Appraisal."

2. Amending and supplementing Clause 2 Section I of Circular No. 01/2008/TT-BKHCN as follows:

"2. Conditions for Issuing Intellectual Property Ownership Appraisal Cards and Forms of Appraisal Activities

2.1. The conditions for obtaining an Intellectual Property Ownership Appraisal Card (hereinafter referred to as "Appraisal Card") stipulated in Clause 3 Article 201 of the Intellectual Property Law shall be understood as follows:
a) The condition "Residing in Vietnam" means having a permanent place of residence in Vietnam without a fixed term and registered according to the regulations on place of residence under the law;
b) The condition "Having good moral character" means not being subject to administrative penalties for violations of intellectual property laws or professional ethics, and not being subject to criminal prosecution or having been convicted but not yet pardoned;
c) The condition "Having a bachelor's degree or higher in a relevant specialty corresponding to the field for which the Appraisal Card is requested" means holding a bachelor's or postgraduate degree in engineering, physical sciences, chemistry, or biology for the specialty of patent and integrated circuit layout design appraisal; holding a bachelor's or postgraduate degree in any field for other appraisal specialties;
d) The condition "Having at least five years of practical experience in the field for which the Appraisal Card is requested" means having directly engaged in dispute resolution, complaints handling, inspection, auditing, legal consultation on intellectual property, scientific research with the title of researcher, teaching intellectual property with the title of lecturer for at least five years, or those who have directly engaged in interpreting, guiding the implementation of legal regulations, formulating rules, implementing or reviewing the results of substantive examination of patent applications (including utility model applications), industrial design applications, trademark applications, or geographical indication applications (including origin name applications) at national or international intellectual property offices for at least five years, or those who have practiced intellectual property agency services for at least five years.

2.2. Intellectual Property Appraisers may work within an intellectual property appraisal organization under the name of that organization or work independently. In the case of working under the name of an intellectual property appraisal organization, information about the appraiser must be recorded in the list of appraisers belonging to the organization according to the procedures for issuing the Certificate of Organization Meeting Conditions for Intellectual Property Appraisal Activities and such form of activity must be recorded in the list of intellectual property appraisers as stipulated in Clause 6 Section III of this Circular."

3. Amending and supplementing Clause 3 Section I of Circular No. 01/2008/TT-BKHCN as follows:

"3. Organizations eligible for Certificates of Organizations Meeting Conditions for Intellectual Property Appraisal Activities

3.1. Organizations meeting the conditions stipulated in Clause 2 Article 201 of the Intellectual Property Law shall be issued a Certificate of Organization Meeting Conditions for Intellectual Property Appraisal Activities (hereinafter referred to as the "Certificate of Organization Appraisal").

3.2. The organizations stipulated in Clause 1 Article 42 of the Amended Decree No. 105/2006/NĐ-CP include the following organizations:
a) Enterprises, including: limited liability companies, joint stock companies, partnerships, private enterprises established and operating in accordance with the law on enterprises;
b) Cooperatives and cooperative unions established and operating in accordance with the law on cooperatives;
c) Public institutions established and operating pursuant to the Decision of competent authorities;
d) Vietnamese lawyer organizations established and operating in accordance with the law on lawyers, including: law firms; limited liability law firms; partnership law firms; except branches of foreign lawyer organizations, wholly foreign-owned limited liability law firms, and limited liability law firms jointly established between Vietnamese lawyer organizations and foreign lawyer organizations.

Branches and other dependent units of organizations as prescribed in this clause shall only conduct appraisal activities under the name of the organization they depend on, pursuant to the authorization of that organization.

4. Repeal Clause 4, Part I of Circular No. 01/2008/TT-BKHCN.

5. Amend Point a, Clause 1, Part II of Circular No. 01/2008/TT-BKHCN as follows:

"a) The content of the business inspection for intellectual property appraisals as stipulated in Clause 3, Article 201 of the Intellectual Property Law includes industrial property law and specialized appraisal subjects."

6. Amend Clause 5, Part III of Circular No. 01/2008/TT-BKHCN as follows:

"5. Revocation of Appraiser Card

The Director of the National Office of Intellectual Property shall issue a Decision to revoke the Appraiser Card in the following cases:
a) There is evidence indicating that the Appraiser Card was issued contrary to the provisions of the law;
b) The person holding the Appraiser Card no longer meets the conditions prescribed in Clause 3, Article 201 of the Intellectual Property Law and Clause 2, Part I of this Circular;
c) The person holding the Appraiser Card renounces their appraisal activities."

7. Amend Clause 1, Part IV of Circular No. 01/2008/TT-BKHCN as follows:

"1. Authority to Issue, Reissue, and Revoke the Certificate of Appraisal Organization
a) The Director of the National Office of Intellectual Property has the authority to issue, reissue, and revoke the Certificate of Appraisal Organization as provided for in Clauses 2, 3, 4, and 5 of Part IV of this Circular for scientific and technological organizations that are public institutions registered with the Ministry of Science and Technology for scientific and technological activities.
b) The Director of the Department of Science and Technology has the authority to issue, reissue, and revoke the Certificate of Appraisal Organization as provided for in Clauses 2, 3, 4, and 5 of Part IV of this Circular for organizations as specified in Clause 3, Part I of this Circular that have been registered for business and registered with the competent local government authorities.
c) The National Office of Intellectual Property and the Department of Science and Technology are the agencies responsible for receiving and examining applications for the Certificate of Appraisal Organization according to the corresponding authority as provided for in Points a and b above."

8. Amend Point b, Clause 2, Part IV of Circular No. 01/2008/TT-BKHCN as follows:

"2. Documents for Application for the Certificate of Appraisal Organization include the following one set of documents:
b) A copy of the Business Registration Certificate (for enterprises), Business Registration Certificate (for cooperatives and cooperative federations), Scientific and Technological Activity Registration Certificate (for public institutions that are scientific and technological organizations), Establishment Decision and Activity Registration Certificate (if required by law for public institutions that are not scientific and technological organizations) or Activity Registration Certificate for law firms (present the original for verification, except when the copy has been certified)."

9. Amend Clause 2, Part V of Circular No. 01/2008/TT-BKHCN as follows:

"2. Fees and Charges

The collection, payment, management, and utilization of fees and charges for business inspections of intellectual property appraisals, examination of application files, issuance, reissuance of Appraiser Cards, and Certificates of Appraisal Organizations as stipulated in this Circular shall be implemented in accordance with Circular No. 22/2009/TT-BTC dated February 4, 2009, of the Ministry of Finance, which specifies the levels of collection, payment, management, and utilization of fees and charges for intellectual property rights."

Article 2. Effective Date

This Circular takes effect 45 days from the date of issuance.

During implementation, if there are difficulties or obstacles, please report them to the Ministry of Science and Technology for study and resolution./.