Decree No. 104/2006/NĐ-CP on detailing and guiding the implementation of certain provisions of the Intellectual Property Law regarding rights to plant varieties

DECREE

Regarding the detailed regulations and guidance on implementing certain provisions

of the Intellectual Property Law concerning rights to plant varieties

________________________________

THE GOVERNMENT

Pursuant to the Government Organization Law dated December 25, 2001;

Pursuant to the Intellectual Property Law No. 50/2005/QH11 dated November 29, 2005;

Considering the proposal of the Minister of Agriculture and Rural Development,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates detailed regulations and provides guidance on implementing certain provisions of the Intellectual Property Law concerning rights to plant varieties, including: state management responsibilities for rights to plant varieties; procedures for establishing rights to plant varieties; rights and obligations of the holder of the plant variety protection certificate and the author of the plant variety; transfer and assignment of rights to protected plant varieties.

Article 2. Applicability

This Decree applies to:

1. Vietnamese organizations and individuals;

2. Foreign organizations and individuals with a permanent address or production and business establishments for plant varieties in Vietnam;

3. Organizations and individuals from countries that have concluded agreements with Vietnam on the protection of rights to plant varieties;

4. Foreign organizations and individuals who are not citizens of countries that have concluded agreements with Vietnam on the protection of rights to plant varieties but have a permanent address or a legally registered office in the territory of a country that has concluded such an agreement with Vietnam.

Article 3. Explanation of Terms

In this Decree, the following terms are understood as follows:

1. "Plant variety" in this Decree includes complete plants, propagation materials, harvested materials of agricultural, forestry, aquatic plant varieties, and new species of fungi selected or discovered and developed from plant varieties listed in the Protected Plant Variety Species Catalogue;

2. "Holder of the plant variety protection certificate" is an organization or individual granted the plant variety protection certificate;

3. "Propagation material" refers to parts of a plant capable of developing into a complete plant, such as seeds, spores, stems, roots, seedlings, grafts, buds, grafted plants, fungal threads, tubers, fruits, shoots, flowers, tissues, cells, or other parts of the plant;

4. "Harvested material" refers to complete plants or any part thereof obtained from planting propagation material of a plant variety;

5. "Formal examination" refers to the examination of the completeness and validity of the application as prescribed in Article 10 of this Decree;

6. "Substantive examination" refers to the examination of novelty, distinctiveness, uniformity, stability, and the name of the plant variety;

7. "Detailed description of the plant variety" is a document reflecting the characteristics of the plant variety according to the testing standards for distinctiveness, uniformity, and stability, and confirmed by the plant variety protection authority. The detailed description is considered published when it is made available to the public through scientific reports, newsletters, newspapers, journals, or other publications;

8. "Plant variety protection authority" in this Decree refers to the Plant Variety Protection Office located at the Ministry of Agriculture and Rural Development;

9. "Legal representative" of foreign organizations and individuals registering plant variety protection in Vietnam is an organization or individual including Vietnamese citizens, foreign organizations and individuals with production and business establishments or permanent addresses in Vietnam in accordance with the laws of the Socialist Republic of Vietnam, authorized in writing by the organization or individual owning the plant variety to register the protection of the plant variety;

10. "Author of the plant variety" is the person directly performing all or part of the work of selecting, discovering, and developing a new plant variety;

11. "Country having concluded an agreement with Vietnam on the protection of rights to plant varieties" means any country that has concluded a bilateral agreement with Vietnam or member states of an intergovernmental organization in cases where Vietnam has concluded an agreement with an intergovernmental organization on the protection of rights to plant varieties.

Article 4. Responsibilities of Ministries and Ministries-equivalent Agencies for Plant Variety Protection

1. The Ministry of Agriculture and Rural Development shall implement state management over plant variety protection throughout the country and be responsible for:

a) Submitting to competent authorities for issuance or issuing within its authority and organizing the implementation of legal documents on plant variety protection;

b) Issuing, revoking, suspending, and cancelling plant variety protection certificates;

c) Issuing lists of protected plant species; procedures and technical standards for plant variety testing;

d) Defining the organization, functions, tasks, and powers of plant variety protection agencies;

e) Organizing propaganda, education, and dissemination of laws on plant variety protection;

f) Inspecting, auditing, and handling administrative violations in the implementation of plant variety protection;

g) International cooperation on plant variety protection.

2. The Ministry of Science and Technology, the Ministry of Fisheries, the Ministry of Finance, and other ministries, ministries-equivalent agencies, and government agencies within their assigned tasks and powers shall cooperate with the Ministry of Agriculture and Rural Development in state management of plant variety protection.

Article 5. Responsibilities of Provincial People's Committees and Municipal People's Committees under Central Government for Plant Variety Protection

1. Implementing policies and laws on plant variety protection.

2. Organizing propaganda and dissemination of laws on plant variety protection.

3. Inspecting, auditing, and handling administrative violations in the implementation of plant variety protection.

4. Directing district, county, town, and city people's committees under provincial jurisdiction to enforce measures for state management of plant variety protection at the local level.

Chapter II

PROCEDURES AND FORMALITIES

ESTABLISHING RIGHTS TO PLANT VARIETIES

Article 6. Applicants for Plant Variety Protection

1. Applicants for plant variety protection are defined in Clause 2 of Article 164 of the Intellectual Property Law.

2. In cases where plant varieties are selected or discovered and developed using state budget funds or from projects managed by the state, the organizations or individuals directly selecting the plant varieties shall carry out the application for plant variety protection.

Article 7. Application for Plant Variety Protection

1. The application for plant variety protection as stipulated in Article 174 of the Intellectual Property Law shall be prepared in three copies and submitted to the plant variety protection agency.

2. For applications from organizations or individuals from countries that have signed agreements with Vietnam on plant variety protection as stipulated in Clause 2 of Article 157 of the Intellectual Property Law but without a permanent address or production base in Vietnam, in addition to the documents specified in Clauses 1, 2, and 3 of Article 174 of the Intellectual Property Law, they must provide necessary documents sufficient to confirm nationality.

3. In cases where the applicant is not a citizen of a country that has concluded agreements with Vietnam on plant variety protection, they must provide documents proving they have a permanent address or a legally registered office in a country that has signed agreements with Vietnam on plant variety protection.

Article 8. Requirements for Applicants Seeking Priority Rights

For applications meeting the conditions to claim priority rights as stipulated in Clause 1 of Article 167 of the Intellectual Property Law, to be entitled to such priority rights, applicants must fulfill the following procedures:

1. Register the request for priority rights in the application form for registration in accordance with the regulations;

2. Pay the fee for examination of priority rights as prescribed;

3. Within three months from the date of filing the application for registration, the applicant must provide the following documents:

a) A certified copy of all documents related to the first application or confirmation by the authority that received the previous application for registration;

b) Evidence confirming that the registered plant variety in both applications is the same, such as a description of the variety, photographs, and other relevant documents (if available).

Article 9. Acceptance of Applications for Registration

1. The plant variety protection agency accepts applications in one of the following forms:

a) Directly from the applicant or their authorized representative;

b) By post. In cases where the applicant submits the application by post, the filing date is determined as the date the application arrives at the plant variety protection agency.

2. Upon receipt of the application, the plant variety protection agency must stamp the date of receipt on the application; record the application number in the register of received applications; and send one set to the applicant.

Article 10. Formal Examination of Applications

1. Time limit for formal examination:

Within fifteen days from the date of receiving the application for registration of plant varieties, the plant variety protection agency must complete the formal examination of the application.

2. Content of formal examination of the application includes:

Checking the accompanying documents and the validity of the application according to the provisions of Article 174 of the Law and Articles 6 and 7 of this Decree.

Article 11. Inadmissible Applications Due to Formal Defects and Handling of Inadmissible Applications

1. Inadmissible applications due to formal defects:

a) Lacking any of the documents prescribed in Clause 1 of Article 174 of the Intellectual Property Law and Article 8 of this Decree (for applications seeking priority rights);

b) Documents in the application not in the prescribed format or lacking information in the registration form;

c) The application not being in Vietnamese;

d) Documents in the application being erased, torn, or illegible;

đ) Certified copies of documents without the seal of certification or confirmation by the competent authority;

e) The plant variety in the application not belonging to the list of plant species eligible for protection published at the time of registration;

g) The application filed by a person who does not have the right to file an application as stipulated in Article 164 of the Intellectual Property Law and Article 6 of this Decree.

2. Handling of inadmissible applications

a) For applications under point e and g of Clause 1 of this Article, the plant variety protection agency rejects the application for registration and notifies the applicant in writing;

b) For applications under points a, b, c, d, đ of Clause 1 of this Article, the plant variety protection agency informs the applicant of the necessary corrections and supplements. Within thirty days from the date of receipt of the notification, the applicant must rectify the deficiencies in the application as required by the plant variety protection agency. If the applicant fails to correct the deficiencies within the specified period or if the corrections are inadequate, the plant variety protection agency may reject the application;

c) The thirty-day period prescribed in point b of this Clause is calculated based on the postmark of the notification receipt. If the postmark is illegible, this period is extended to forty-five days from the date the plant variety protection agency sends the notification.

Article 12. Examination of the Content of the Application

The examination of the content of the application for protection registration as stipulated in Article 178 of the Intellectual Property Law shall be carried out in accordance with the following procedures:

1. Examine the name of the plant variety in accordance with Article 13 of this Decree;

2. Examine the novelty of the plant variety in accordance with Article 14 of this Decree;

3. Conduct technical testing to evaluate the distinctness, uniformity, and stability of the plant variety in accordance with the provisions of Articles 15 and 16 of this Decree;

4. Examine the results of the technical testing in accordance with the provisions of Article 19 of this Decree.

Article 13. Examination of the Name of the Plant Variety

1. Based on the provisions of Article 163 of the Intellectual Property Law, the plant variety protection authority shall examine whether the proposed name of the plant variety is appropriate compared to the names of other recognized varieties of the same or closely related species in Vietnam or any country that has signed an agreement with Vietnam regarding the protection of plant variety rights. If the proposed name does not comply with the regulations, the plant variety protection authority shall notify the applicant to change the name of the plant variety in accordance with the regulations.

2. Within thirty days from the date of receipt of the notification from the plant variety protection authority, the applicant must propose a new name for the plant variety that complies with the regulations. If the applicant fails to propose a suitable new name within this period, the plant variety protection authority may reject the application.

3. In case the applicant wishes to change the name of the variety during the period from filing the application to before the grant of the protection certificate, the applicant must request a change of the variety name and propose a new name for the registered plant variety while paying the prescribed fee.

4. The plant variety protection authority is responsible for notifying all information related to the name of the plant variety to the competent authorities of countries that have signed agreements with Vietnam regarding the protection of plant variety rights.

5. The official name of the plant variety is the name recognized at the time of issuance of the decision granting the plant variety protection certificate.

Article 14. Examination of Novelty

Based on Article 159 of the Intellectual Property Law, the plant variety protection authority shall conduct the examination of the novelty of the plant variety registration application according to the following procedures:

1. Examine the information in the application form;

2. Consider and handle any feedback or complaints (if any) regarding the novelty of the plant variety registration application after the application is published.

Article 15. Technical Testing

Technical testing as stipulated in Clause 2 of Article 178 of the Intellectual Property Law shall be implemented specifically as follows:

1. The plant variety protection authority shall base on actual conditions to select one of the following forms of technical testing:

a) Technical testing conducted by an inspection agency meeting the conditions specified in Article 16 of this Decree;

b) An organization or individual with sufficient capacity to conduct experimental technical testing;

c) Utilizing existing technical testing results provided by the author or from other sources.

2. In the case specified in Point b, Clause 1 of this Article, the experimental technical testing must be carried out in accordance with the technical testing standards for distinctness, uniformity, and stability;

3. The results of the technical testing must be completed in a unified format by the plant variety protection authority. Organizations or individuals providing technical testing results as specified in Point c, Clause 1 of this Article shall bear responsibility for the technical testing results;

4. In cases specified in Points a and b, Clause 1 of this Article, if the technical testing results are unsatisfactory, the applicant has the right to request the plant variety protection authority to retest and must pay the prescribed retesting fee. The request for retesting must be made in writing, clearly stating the reasons and evidence supporting the request for retesting;

5. The fee specified in Clause 4 of this Article will be refunded to the applicant if the retesting results confirm that the reasons and evidence presented by the applicant are correct.

Article 16. Technical Testing Agency

The technical testing agency referred to in point a, Clause 1, Article 15 of this Decree must meet the following conditions:

1. Have a location and area suitable for testing standards and requirements for the growth and development of each crop species;

2. Have specialized equipment meeting the testing requirements for each crop species as prescribed by competent state agencies;

3. Have or have the condition to hire technical staff with sufficient professional qualifications to meet testing requirements.

Article 17. Submission of Seed Samples

1. The plant variety protection agency shall require applicants falling under the category mentioned in point a, Clause 1, Article 15 of this Decree to submit seed samples to the technical testing agency at least twenty days before the planting season.

2. Applicants falling under the categories mentioned in points b and c, Clause 1, Article 15 of this Decree are not required to submit seed samples to the technical testing agency but must submit them to the seed sample storage agency as stipulated in Clause 3 of this Article. The deadline for submitting seed samples shall be determined by the plant variety protection agency. 3. The storage of seed samples of registered varieties mentioned in Clause 2 of this Article shall be carried out as follows:

a) Seed samples in the form of seeds shall be stored at the seed sample storage agency designated by competent state authorities;

b) For seed samples of crop species propagated vegetatively, applicants shall store the seed samples themselves and must indicate the storage location in the application for plant variety protection.

4. In cases where necessary, the plant variety protection agency may request applicants to provide seed samples of varieties similar to the protected variety upon the proposal of the technical testing agency if the applicant has the ability to provide such samples.

5. Upon receipt of seed samples, the technical testing agency or the seed sample storage agency shall inspect the quality of the seed samples and issue a confirmation certificate if the seed samples meet the requirements. If the seed samples do not meet the requirements, the technical testing agency or the seed sample storage agency may request the applicant to resubmit the seed samples.

6. Within twenty days from the date of receiving the seed samples, the agency receiving the seed samples must conduct a quality inspection and notify the results to the applicant. If the seed samples do not meet the testing standards, the agency receiving the seed samples shall request the applicant to resubmit the seed samples. Within thirty days from the date of receiving the notification, the applicant must provide seed samples that meet the standards.

7. The seed sample storage agency is responsible for ensuring the safety of the seed samples. In cases where the applicant has appropriate requests, the seed sample storage agency shall keep confidential information related to the seed samples according to the applicant's requirements.

Article 18. Reporting on Technical Testing Results

Within thirty days from the end of the testing period, the technical testing agency mentioned in points a and b, Clause 1, Article 15 of this Decree shall submit a report on the technical testing results to the plant variety protection agency.

Article 19. Review of Technical Testing Results

1. Within ninety days from the date of receiving the technical testing results, the plant variety protection agency must complete the review of the technical testing results.

2. In cases of difficulty due to expertise, the Ministry of Agriculture and Rural Development shall establish a specialized committee to review the technical testing results, with the review period not exceeding sixty days from the date of establishing the specialized committee.

Article 20. Granting of Plant Variety Protection Certificates

1. If the examination results confirm that the registered plant variety meets the conditions stipulated in Articles 159, 160, 161, 162, and 163 of the Intellectual Property Law, the plant variety protection authority shall submit to the Minister of Agriculture and Rural Development for signing the decision to grant the plant variety protection certificate and publish it in the specialized journal on plant varieties of the Ministry of Agriculture and Rural Development.

2. Thirty days from the date of publication of the decision to grant the plant variety protection certificate in the specialized journal on plant varieties, if no objections or complaints in writing about the issuance of the certificate are received, the plant variety protection authority shall issue the plant variety protection certificate to the applicant and record it in the national registry of protected plant varieties.

3. Within thirty days from the date of publication of the decision to grant the plant variety protection certificate in the specialized journal on plant varieties, if the plant variety protection authority receives objections or complaints in writing regarding the issuance of the plant variety protection certificate, it must handle them according to the provisions of Article 184 of the Intellectual Property Law and Clause 24 of this Decree.

4. The plant variety protection certificate shall only be issued one (01) original copy. In cases where the applicant wishes to have more than one copy, they must register in advance with the plant variety protection authority. The form of the plant variety protection certificate and the national registry of protected plant varieties are specified in Article 168 of the Intellectual Property Law.

5. The applicant must pay the fees and charges for issuing the plant variety protection certificate as prescribed. In cases where the protection certificate is torn, damaged, lost, or changes ownership, the owner of the protection certificate may request a replacement or exchange and must pay the prescribed fee.

Article 21. Suspension of Effectiveness of Plant Variety Protection Certificate

1. In cases where the plant variety protection certificate is suspended according to point a, Clause 1, Article 170 of the Intellectual Property Law, the plant variety protection authority shall carry out the suspension according to the following procedures:

a) Within thirty days from the date of receipt of the request to suspend the effectiveness of the plant variety protection certificate from any third party, the plant variety protection authority must complete the verification of information stated in the request and notify the holder of the plant variety protection certificate. The request to suspend the effectiveness of the plant variety protection certificate must be in writing accompanied by evidence proving that the plant variety does not meet the uniformity and stability requirements at the time of granting the protection certificate and the re-examination fee (if necessary). The re-examination fee will be refunded to the requester if the re-examination result initiated by the holder of the plant variety protection certificate shows that the reason for requesting the suspension of the certificate's effectiveness is correct;

b) Thirty days from the date of receipt of the notification from the plant variety protection authority regarding the feedback mentioned above, if the holder of the plant variety protection certificate does not file an objection, the Ministry of Agriculture and Rural Development shall issue the decision to suspend the effectiveness of the plant variety protection certificate. The suspension date is determined from the date the decision to suspend the effectiveness of the certificate is published in the specialized journal on plant varieties;

c) In cases where the holder of the plant variety protection certificate files an objection, the plant variety protection authority shall require the holder to conduct the re-examination procedures as stipulated in Clause 4, Article 15 of this Decree. If the re-examination result conducted by the entity specified in point a, Clause 1, Article 15 of this Decree shows that the plant variety does not meet the uniformity or stability requirements at the time of granting the certificate, the plant variety protection authority shall proceed with the suspension procedures as specified in point b of this clause.

2. In cases where there are difficulties in deciding to suspend the effectiveness of the protection certificate, the Ministry of Agriculture and Rural Development shall establish a specialized advisory council to advise on issues related to the suspension of the effectiveness of the plant variety protection certificate.

Article 22. Restoration of Effectiveness of Plant Variety Protection Rights

1. In cases stipulated in point a, Clause 1, Article 170 of the Intellectual Property Law, based on the results of re-examination, the Ministry of Agriculture and Rural Development shall decide to restore or not restore the effectiveness of plant variety protection rights.

2. For plant varieties whose protection rights have been suspended as provided for in points b, c, and d, Clause 1, Article 170 of the Intellectual Property Law, based on the actual results of addressing the reasons for suspension in accordance with Clause 5, Article 170 of the Intellectual Property Law, the Ministry of Agriculture and Rural Development shall decide to restore or not restore the effectiveness of plant variety protection rights.

Article 23. Revocation of Effectiveness of Plant Variety Protection Rights

1. When there is sufficient evidence to determine that a plant variety falls under one of the cases stipulated in Clause 1, Article 171 of the Intellectual Property Law, the Ministry of Agriculture and Rural Development shall decide to revoke the effectiveness of plant variety protection rights.

2. In cases where organizations or individuals submit a request to revoke the effectiveness of plant variety protection rights, after reviewing the application and opinions of relevant parties, the Ministry of Agriculture and Rural Development shall decide to revoke or refuse to revoke the effectiveness of protection rights and notify the applicant.

Article 24. Grounds for Complaints Regarding Granting of Protection Rights

Organizations and individuals who complain about the granting or refusal to grant plant variety protection rights must base their complaints on one of the following grounds:

1. The person applying for protection rights believes that the refusal to grant protection rights lacks legal basis.

2. The protection right granted to a person who does not have the right to receive such protection rights, except when such rights have been transferred to a person entitled to them.

3. The protected plant variety lacks novelty or distinctiveness.

4. The protected plant variety lacks uniformity or stability.

5. The name of the protected plant variety is inappropriate.

Article 25. National Register

The authority responsible for protecting plant varieties shall be responsible for establishing and maintaining a national register of protected plant varieties. All information regarding protection rights and changes during the term of effectiveness of plant variety protection rights shall be recorded in the national register of protected plant varieties.

Chapter III

RIGHTS AND OBLIGATIONS OF THE HOLDER OF PROTECTION RIGHTS AND BREEDER OF PLANT VARIETIES

AND PLANT SEEDLINGS BREEDERS

Article 26. Rights of the Holder of Plant Variety Protection Rights

1. The rights of the holder of plant variety protection rights as stipulated in Article 186 of the Intellectual Property Law apply to harvested material obtained through the use of propagation material of protected plant varieties without permission from the holder of the protection rights, provided that the holder of the protection rights has reasonable conditions to exercise their rights over the propagation material, then for the same harvested material, when using it, the user does not need to seek permission from the holder of the protection rights.

2. The rights of the holder of plant variety protection rights as stipulated in Clause 1 of this Article apply to the plant varieties specified in Article 187 of the Intellectual Property Law.

Article 27. Request for Temporary Protection Rights

The owner of a plant variety enjoys temporary protection rights for the period prescribed in Clause 1, Article 189 of the Intellectual Property Law. If another party uses the plant variety for commercial purposes during the period of temporary protection, the owner of the plant variety shall implement the procedures prescribed in Clauses 2 and 3, Article 189 of the Intellectual Property Law. To enjoy temporary protection for the plant variety, from the date of issuance of the protection certificate, the holder of the protection rights may request temporary protection rights and must follow the procedure below:

1. Agree on compensation levels with the party that has exploited the plant variety for commercial purposes.

2. In case of disagreement, the holder of the protection rights may submit an application to the competent authority as stipulated in Article 200 of the Intellectual Property Law to resolve the matter. The application for temporary protection rights must be in writing and accompanied by evidence proving that the conditions for enjoying temporary protection rights are met.

Article 28. Limitations on Rights to Plant Varieties

In accordance with Article 190 of the Intellectual Property Law, the rights of the holder of a plant variety protection certificate are limited as follows: the following acts shall not be considered infringements of protected plant variety rights:

1. Using plant varieties for personal and non-commercial purposes;

2. Using for scientific research;

3. Activities aimed at creating other plant varieties, except for cases as provided for in Article 187 of the Intellectual Property Law and acts related to plant varieties as stipulated in Article 186 of the Intellectual Property Law and Article 26 of this Decree;

4. Individual production households may use products harvested from protected plant varieties to self-propagate and sow for the next crop on their own land area.

Article 29. Obligations of the Holder of a Plant Variety Protection Certificate

In accordance with Clause 1 of Article 191 of the Intellectual Property Law, the holder of a plant variety protection certificate has the following obligations:

1. Pay remuneration to the breeder of the plant variety in one of the following forms:

a) By agreement between the holder of the protection certificate and the breeder of the plant variety;

b) If no agreement can be reached, the amount of remuneration paid to the breeder is 30% of the copyright revenue received;

c) For plant varieties created or discovered and developed using state budget funds, the holder of the protection certificate pays remuneration to the breeder according to internal regulations. If there is no provision in the internal regulations, the holder of the protection certificate must pay 30% of the copyright revenue received to the breeder.

2. Pay maintenance fees for the validity of the plant variety protection certificate to the plant variety protection authority within three months from the date of issuance of the protection certificate for the first year of validity and the first month of each subsequent year.

3. Maintain the protected plant variety, provide information, documentation, and propagation material of the protected plant variety upon request of the plant variety protection authority; maintain the stability of the protected plant variety as described at the time of issuance of the plant variety protection certificate.

Article 30. Obligations of the Breeder of a Protected Plant Variety

In accordance with Clause 2 of Article 191 of the Intellectual Property Law, during the validity period of the plant variety protection certificate, the breeder has the obligation to maintain the plant variety as described at the time of issuance of the protection certificate in accordance with the agreement with the holder of the plant variety protection certificate.

Chapter IV

TRANSFER AND ASSIGNMENT OF RIGHTS

FOR PROTECTED PLANT VARIETIES

Article 31. Procedures for Registering Transfer Agreements for Rights to Protected Plant Varieties

1. After completing the transfer agreement for rights to protected plant varieties in accordance with the provisions of the law, the transferee must register the transfer agreement with the plant variety protection authority and must pay the fee as prescribed.

2. The plant variety protection authority receives the registration of the transfer agreement and processes the notification to confirm the rights of the holder of the plant variety protection certificate to the transferee.

Article 32. Transfer and Assignment of Rights to Protected Plant Varieties Owned by the State

1. The assignment of rights to protected plant varieties owned by the state must be carried out in accordance with the provisions of the law on state asset management.

2. The management and use of proceeds from contracts for the transfer and assignment of rights to protected plant varieties are implemented in accordance with the provisions of Government Decree No. 43/2006/NĐ-CP dated April 25, 2006, concerning the right to self-management, self-responsibility for the implementation of tasks, organizational structure, staffing, and finance for public service units.

Article 33. Compulsory Transfer of Rights to Use Protected Plant Varieties for Meeting Urgent Social Needs

The compulsory transfer of rights to use protected plant varieties shall be governed by point a, Clause 1, Article 195 of the Intellectual Property Law;

Meeting urgent social needs includes addressing emergency situations such as natural disasters, epidemics, wars, and widespread environmental pollution.

Article 34. Basis for Determining Compensation Price Range for Compulsory Transfer of Rights to Use Protected Plant Varieties

The determination of the compensation price range for compulsory transfer is based on the following grounds:

1. The transferring party and the receiving party shall negotiate;

2. In cases where the parties cannot reach an agreement, the compensation price shall be calculated based on the following grounds:

a) The value of the transfer contract for the same variety with another entity at the nearest time corresponding to the period and quantity of the variety subject to compulsory transfer;

b) The profit value that the holder of the protected plant variety right would have obtained from exploiting the variety right corresponding to the quantity and duration of the variety required to be transferred.

3. The authority responsible for deciding the compulsory transfer under Article 35 of this Decree shall take the lead and coordinate with relevant ministries and agencies to review specific compensation plans for cases stipulated in Clause 2 of this Article.

Article 35. Authority to Decide on Compulsory Transfer of Rights to Use Protected Plant Varieties

1. The Ministry of Agriculture and Rural Development shall issue decisions on compulsory transfer of rights to use protected plant varieties belonging to agricultural and forestry crops;

2. The Ministry of Fisheries shall issue decisions on compulsory transfer of rights to use protected plant varieties belonging to aquatic crops;

3. The Ministry of Health shall issue decisions on compulsory transfer of rights to use protected plant varieties used for medicinal purposes;

4. The authorities mentioned in Clauses 1, 2, and 3 of this Article shall assign units responsible for handling procedures related to the compulsory transfer of rights to use protected plant varieties.

Article 36. Procedures for Compulsory Transfer of Rights to Use Protected Plant Varieties

1. The authorities specified in Clauses 1, 2, and 3 of Article 35 of this Decree shall publicly announce the need for varieties, the name of the plant variety, purpose, quantity needed, scope, and time frame for the transfer;

2. Organizations and individuals wishing to receive the transfer shall submit registration applications to the competent state authorities specified in Article 35 of this Decree.

The transfer application package includes:

a) A request form clearly stating the scope and duration of the compulsory transfer;

b) Certificate of registration for production and business of plant varieties;

c) Documentation proving financial capability to compensate the transferring party according to regulations.

Responsibilities of the competent state authorities regarding compulsory transfer of rights to use protected plant varieties:

a) Receiving the application package as stipulated in Clause 2 of this Article;

b) Within fifteen days from the date of receipt of a valid application, organize an assessment and submit to the competent authority for issuance of a compulsory transfer decision if the applicant meets the conditions;

c) If the applicant does not meet the conditions, the competent authority must notify in writing and specify the reasons;

d) Notify the compulsory transfer decision to both the transferring and receiving parties for implementation.

Chapter V

IMPLEMENTING PROVISIONS

Article 37. Transitional Provisions

1. Applications for protection of plant varieties submitted to the plant variety protection authority before the effective date of this Decree shall be processed in accordance with the provisions of relevant laws on plant variety protection in effect at the time of submission.

2. Applications for protection of plant varieties submitted from the effective date of this Decree shall be implemented in accordance with the provisions of this Decree.

Article 38. Effective Date

This Decree shall take effect fifteen days from the date of publication in the Official Gazette and replace Government Decree No. 13/2001/NĐ-CP dated April 20, 2001, on the protection of plant varieties.

Article 39. Implementation Provisions

1. The Ministry of Agriculture and Rural Development shall be responsible for guiding the implementation of this Decree.

2. The Ministry of Finance shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to guide the collection, management, and use of fees and charges related to the protection of plant variety rights.

3. The Ministers, Heads of ministerial-level agencies, Heads of government agencies, Chairpersons of provincial People's Committees under central cities shall be responsible for implementing this Decree./.