Decree No. 13/2001/NĐ-CP on the Protection of New Plant Varieties

DECREE

On the protection of new plant varieties

__________

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;

Based on the Civil Code dated October 28, 1995;

At the request of the Minister of Agriculture and Rural Development,

DECREE:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of Application

1. This Decree is promulgated to protect the rights of organizations and individuals that have created or legally inherited new plant varieties in Vietnam (including agricultural and forestry plant varieties, referred to in this Decree as new plant varieties); encourage organizations and individuals from various economic sectors to invest in creating and using new plant varieties; contribute to the development of agriculture and rural areas.

2. This Decree stipulates the principles, conditions for granting a Plant Variety Protection Certificate (referred to as the Protection Certificate); procedures and formalities for issuing the Protection Certificate; rights and obligations of the owner of the Protection Certificate; suspension and revocation of the Protection Certificate; state management and penalties related to the protection of new plant varieties.

3. New plant varieties of organizations and individuals from countries that have signed or joined international treaties on the protection of new plant varieties with Vietnam shall be protected in Vietnam according to the provisions of this Decree, except where international treaties to which the Socialist Republic of Vietnam is a party provide otherwise.

4. New plant varieties created by domestic organizations and individuals that relate to national interests requiring confidentiality shall be implemented according to separate State regulations.

Article 2. Definitions

2. Self-generated and self-consumed electricity is electricity produced and consumed by an organization or individual to serve their own needs.

1. "Plant variety" means a group of plants within the lowest taxonomic rank of plant classification, such group must meet the following conditions:

a) Recognizable through the expression of characteristics determined by the genotype;

b) Distinguishable from any other plant variety through the expression of at least one characteristic as mentioned in point a of this clause;

c) Stable during propagation.

2. "New plant variety" means a plant variety that is distinct, uniform, stable, and not widely known.

3. "Protected new plant variety" means a new plant variety granted a Protection Certificate.

4. "Plant variety essentially derived from a protected variety" means a new plant variety produced from a protected variety (the initial variety) by certain breeding methods, for example: selection of spontaneous or induced mutations (natural or artificial, somatic variations, individual selection from the initial plant), backcrossing, gene transfer, cell fusion, basically retaining the characteristics of the initial variety, differing only in one or a few characteristics from the initial variety.

5. "Widely known plant variety" includes:

a) Protected new plant varieties;

b) New plant varieties with application requests published by competent authorities in specialized journals;

c) National recognized plant varieties;

d) Local specialty plant varieties recognized by the Department of Agriculture and Rural Development;

đ) New plant varieties specified in point a and point b of this clause of countries that have signed agreements on the Protection of New Plant Varieties with Vietnam.

6. "Propagating material" means a complete plant or parts of a plant such as seeds, seedlings, cuttings, grafts, tissues, cells, tubers, stem segments used to produce new plants.

7. "Harvested product" means a complete plant or any part of a plant obtained from planting propagating material of a protected variety.

8. "Breeder of a new plant variety" means an individual or group of people who have used plant genetic resources to create or improve wild plants to produce a new plant variety.

9. "Owner of the Protection Certificate" means an organization or individual granted a Protection Certificate or transferred or inherited a Protection Certificate, having legitimate ownership of a new plant variety.

10. "DUS testing" (hereinafter referred to as DUS testing) means field or laboratory testing according to standards to determine the distinctness, uniformity, and stability of a new plant variety.

11. "License" means the transfer of the right to use a plant variety to a person needing to use it.

Article 3. General principles regarding the protection of rights to new plant varieties

1. The State recognizes and protects the rights to new plant varieties in the form of granting a Protection Certificate.

2. All activities involving the creation, production, trading, and use of new plant varieties protected by the State must comply with the provisions of this Decree and other relevant legal documents.

3. A Protection Certificate for a new plant variety is granted only once to the owner of the Protection Certificate after the formal and substantive examination of the application, and will not be reissued.

4. The holder of a Protection Certificate for a new plant variety must pay examination fees and annual fees to maintain the validity of the Protection Certificate.

Chapter II

PROVISIONS ON THE CONDITIONS, PROCEDURES AND FORMALITIES FOR GRANTING CERTIFICATES OF PLANT VARIETY PROTECTION

Article 4. Conditions for new plant varieties to be protected

New plant varieties seeking protection must meet the following conditions:

1. The new plant variety must belong to species or genera listed in the catalogue of protected plants published by the Ministry of Agriculture and Rural Development.

2. The new plant variety must have distinctiveness

A plant variety is considered distinctive if it possesses one or more essential characteristics that clearly distinguish it from other known plant varieties at the time of filing the application for protection.

3. The new plant variety must have uniformity

A plant variety is considered uniform if all plants of the variety exhibit the same essential characteristics, except for minor deviations within permissible limits for certain specific characteristics during propagation.

4. The new plant variety must have stability

A plant variety is considered stable if its essential characteristics remain unchanged when propagated sexually or asexually, maintaining their initial expression without alteration after each propagation cycle.

5. The new plant variety must have novelty in commerce

A plant variety is considered novel in commerce if, at the time of filing the application for protection, the propagation material or harvested products of the variety have not been sold or distributed by the applicant or authorized persons for commercial purposes in Vietnam for one year prior to the filing date; outside Vietnam for six years for woody and climbing plants, and four years for other groups of plants.

6. The new plant variety must have a suitable name that can easily be distinguished from the names of other widely known plant varieties in the same species. Once accepted in writing by the competent authority, the name of the new plant variety will become the official name, even after the expiration of the protection period, and may not be freely used by others.

The following naming styles are not accepted by the State:

a) Consisting solely of numbers;

b) Violating social ethics;

c) Likely to cause confusion regarding the characteristics or origin of the variety or author;

d) Conflicting or similar enough to cause confusion with registered trademarks or geographical indications for products; conflicting or similar to the harvested products of the plant variety.

Article 5. Subjects entitled to request issuance of certificates of protection

1. Organizations that develop new plant varieties using state budget funds or their own capital shall have the right to file an application for issuance of a certificate of protection.

Individuals (variety authors) who undertake the task of developing new plant varieties assigned by organizations shall have the right to file an application for issuance of a certificate of protection.

2. Individuals who develop new plant varieties using their own efforts and financial resources shall have the right to file an application for issuance of a certificate of protection.

3. In cases where new plant varieties are developed through cooperation contracts between parties, the right to file an application shall be agreed upon by the parties in the contract; if the contract does not specify the applicant, the party hiring the variety developer shall have the right to file the application.

4. Where multiple organizations or individuals apply for certificates of protection related to the same new plant variety, the organization or individual submitting the application first shall be accepted for consideration of granting the certificate of protection according to the provisions of this Decree.

5. If the subjects mentioned in Clause 4 of this Article submit applications on the same day, the application of the first organization or individual to develop the new plant variety shall be accepted for consideration for issuance of the certificate of protection. If the first organization or individual cannot be determined, the competent authority shall reject the applications. The aforementioned organizations and individuals may agree to jointly submit a single application and be joint owners when the certificate of protection is issued.

Article 6. Application dossier for requesting issuance of certificates of protection

1. The person requesting issuance of a certificate of protection must have a dossier including:

a) An application form for requesting issuance of a certificate of protection;

b) Documentation describing the variety according to the prescribed model together with photographs.

The dossier must be in Vietnamese; in cases where foreign organizations or individuals request issuance of a certificate of protection, in addition to the dossier in Vietnamese, there must also be a dossier in English.

2. Organizations or individuals requesting issuance of a certificate of protection must submit the dossier directly or authorize another organization or individual to submit the dossier to the competent authority.

3. Foreign organizations or individuals with legitimate representatives in Vietnam requesting issuance of a certificate of protection may submit the dossier directly or authorize another organization or individual with legal personality to submit the dossier to the competent authority.

In cases where foreign organizations or individuals without legitimate representatives in Vietnam request issuance of a certificate of protection, they must submit the dossier and complete related procedures through service organizations with legal personality acting as representatives to submit the dossier.

4. In cases where the application dossier for requesting issuance of a certificate of protection complies with the provisions of Clause 1 of this Article, the competent authority must confirm the filing date and record the application number.

Article 7. Formal examination of the application dossier for requesting issuance of certificates of protection

1. Within fifteen days from the date of submission of the dossier, the competent authority must complete the formal examination of the dossier, determine the valid filing date, and priority date. If the competent authority finds deficiencies or errors in the dossier, it must notify the applicant. Within thirty days from the date of receipt of the notification, the applicant must provide explanations or correct and supplement the dossier. If the corrected and supplemented dossier still does not comply, or if corrections and supplements are not made, the competent authority has the right to refuse to examine the dossier.

2. The valid filing date is determined as the date when the dossier no longer contains deficiencies or the date when the dossier is completed by the applicant and accepted by the competent authority.

3. Within ninety days from the date the applicant submits a valid dossier, the competent authority must complete the first stage of examination on the following contents:

a) Whether the subject submitting the application is in compliance with the provisions of Article 5 of this Decree;

b) Whether the new plant variety belongs to the genera and species listed in the catalog protected by the State pursuant to Clause 1 of Article 4;

c) Whether the new plant variety falls within the scope defined in Clauses 3 and 4 of Article 1 of this Decree;

d) Whether the new plant variety meets the commercial novelty conditions as stipulated in Clause 5 of Article 4 of this Decree;

đ) Whether the name of the new plant variety complies with Clause 6 of Article 4 of this Decree. If the name does not comply, the competent authority must notify the applicant. The applicant shall be responsible for renaming and resubmitting to the competent authority within fifteen days from the date of receipt of the notification. If the renamed variety still does not comply, the competent authority has the right to reject the application.

4. During the process of reviewing the application for content, the competent authority may require the applicant to correct deficiencies related to the form and content of the application. If the applicant fails to supplement or correct the deficiencies, the competent authority has the right to reject the application.

5. In case the application is accepted in writing by the competent authority after the first review stage, the competent authority shall announce on the specialized journal and notify the applicant to proceed with the second review stage.

Article 8. Content Review of Application for Granting Certificate of Protection

1. Within fifteen days from the date of receiving the notification as prescribed in Clause 5 of Article 7 of this Decree, the applicant must submit samples of the new plant variety to the DUS testing agency.

2. DUS testing shall be conducted according to the testing regulations for each new plant variety issued by the Ministry of Agriculture and Rural Development. The competent authority shall review the second stage based on the DUS test results provided by the testing agency to determine the distinctness, uniformity, and stability of the new plant variety.

3. After completing the second-stage review, the competent authority shall be responsible for:

a) Announcing its intention to grant the Certificate of Protection on the specialized journal if the new plant variety meets the requirements set forth in Clauses 2, 3, and 4 of Article 4 of this Decree;

b) Thirty days after the announcement of the intention to grant the Certificate of Protection on the specialized journal by the competent authority, if there is no objection, the competent authority shall proceed with the issuance of the Certificate of Protection; if there is an objection, the competent authority must review and conclude within thirty days from the date of receipt of the objection;

c) Reject the application and notify the applicant, and announce on the specialized journal that the application did not meet the requirements set forth in Clauses 2, 3, and 4 of Article 4 of this Decree after the second-stage review.

4. In case of disagreement with the rejection of the application, the applicant may file a complaint to the Minister of Agriculture and Rural Development within thirty days from the date of receipt of the rejection notice.

5. For varieties meeting the conditions for protection, the Minister of Agriculture and Rural Development shall issue a decision to grant the Certificate of Protection.

At the request of the owner of the Certificate of Protection, the Ministry of Agriculture and Rural Development may issue a copy of the Certificate of Protection to the owner if it deems there to be justifiable reasons.

Article 9. Term of protection for new plant varieties

The term of protection for new plant varieties is twenty years; for woody plants, it is twenty-five years, calculated from the date of issuance of the Certificate of Protection.

The term of protection for new plant varieties runs from the date of issuance of the Certificate of Protection until the end of the validity period of the Certificate of Protection or until the termination of the Certificate of Protection's effectiveness.

Article 10. Priority Rights

1. An applicant requesting the issuance of a Certificate of Protection for a new plant variety may claim priority rights when the first application was submitted in countries that have signed or joined international treaties on the protection of new plant varieties, provided that the second application is filed within twelve months in Vietnam for the same variety.

2. Within ninety days from the date of submission of the second application, organizations or individuals wishing to claim priority rights must submit to the competent authority a certified copy of the first application and other evidence to prove that the new plant variety in both applications is the same.

3. The application for the issuance of a Certificate of Protection claiming priority rights shall have a corresponding priority date which is the filing date of the first valid application.

Chapter III

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

Article 11. Rights of the holder of the Certificate of Protection

1. The holder of the Certificate of Protection for a new plant variety has the right to permit or prohibit the use of propagation material of the protected variety and products harvested from planting such propagation material in the following activities:

a) Production or multiplication for commercial purposes;

b) Processing of propagation material for commercial purposes;

c) Offering for sale;

d) Sale or other forms of commercialization;

đ) Exporting;

e) Importing;

g) Storage for the purpose of carrying out the activities specified in points a, b, c, d, đ, and e of this clause.

2. From the date of filing the application to the date of issuance of the Certificate of Protection for the new plant variety, the holder of the Certificate of Protection has the right to demand compensation from other organizations or individuals for damages caused by actions related to the propagation material and products harvested from the protected variety without permission from the holder of the Certificate of Protection as stipulated in Clause 1 of this Article.

3. The rights of the holder of the Certificate of Protection regarding the activities specified in Clauses 1 and 2 of this Article also apply in the following cases:

a) When the new plant variety is essentially derived from the protected variety, and the protected variety itself is not essentially derived from another protected variety;

b) When the new plant variety is not clearly distinguishable from the protected variety;

c) When the new plant variety requires repeated use of the protected variety for multiplication.

4. The owner of the protection certificate has the right to exploit the new plant variety themselves or transfer the exploitation rights of the new plant variety to other organizations or individuals. The contract for transferring the exploitation rights of the new plant variety shall be documented in writing and registered with the competent authority.

5. The owner of the protection certificate has the right to inherit or transfer ownership of the protection certificate in accordance with the provisions of the law.

6. The owner of the protection certificate has the right to request competent authorities to handle acts infringing upon their rights and to demand compensation from the infringer.

7. The owner of the protection certificate does not have the right to be protected in the following cases:

a) Using the variety for personal needs without commercial purposes;

b) Farmers planting propagation materials of the protected variety to harvest products for use as seeds for subsequent crops on their farms or exchanging such materials among themselves;

c) Using the variety for breeding new plant varieties, except when the variety is essentially derived from the protected variety.

Article 12. Obligations of the owner of the protection certificate

The owner of the protection certificate for new plant varieties has the following obligations:

1. Directly maintain or authorize others to maintain the propagation material of the protected variety and provide such material upon request of the competent authority for gene bank preservation, standard sample preparation, and planting for testing the distinctiveness, uniformity, and stability of the protected variety;

2. If the owner of the protection certificate is a Vietnamese organization or individual, they must pay remuneration to the author of the variety as stipulated in Article 5 of this Decree. If there is no other agreement between the author and the owner of the protection certificate, the minimum remuneration shall not be less than 20% of the profit earned by the owner of the protection certificate from exploiting the new plant variety each year; or 30% of the total amount received by the owner of the certificate from each payment due to selling licenses or compensation from non-voluntary license issuance;

3. Pay fees when submitting applications for examination of the form and content of the application for issuing the protection certificate and annual fees from the year the protection certificate is issued to maintain its validity;

4. Vietnamese organizations or individuals wishing to transfer ownership of the protection certificate for new plant varieties to foreign organizations or individuals must obtain the consent of the Ministry of Agriculture and Rural Development.

Article 13. Limitation of rights of the owner of the protection certificate

1. The owner of the protection certificate for new plant varieties can only exercise the right to exploit the new plant variety for large-scale production within the territory of Vietnam when the new plant variety is recognized as a national variety according to the regulations of the Ministry of Agriculture and Rural Development.

2. For the national interest or public interest, the competent authority may issue a decision to grant a non-voluntary license to exploit a protected new plant variety. A non-voluntary license can only be granted under the conditions specified in Article 802 of the Civil Code.

The Ministry of Agriculture and Rural Development is the state agency authorized to consider and issue decisions on granting non-voluntary licenses to exploit protected plant varieties.

Organizations or individuals receiving a non-voluntary license must pay exploitation fees to the owner of the protection certificate, the level of which is agreed upon by both parties in accordance with the law.

Within thirty days from the date of receipt of the decision to grant a non-voluntary license, if the owner of the protection certificate disagrees with the decision, they have the right to appeal to the competent state authority in accordance with the Law on Petitions and Complaints.

Article 14. Rights and obligations of the author of the new plant variety

The author of the new plant variety as stipulated in Clause 1, 2, and 4 of Article 5 of this Decree has the right:

To be named in the protection certificate for the new plant variety and recorded in the national registry of new plant varieties;

To receive remuneration from the owner of the protection certificate as stipulated in Clause 3 of Article 12 of this Decree;

To request the competent authority to handle or initiate litigation regarding infringement of the rights stipulated in point a and point b of Clause 1 of this Article.

The author of the new plant variety has the obligation to assist the owner of the protection certificate in fulfilling the obligation to maintain the propagation material of the protected new plant variety.

Chapter IV

SUSPENSION AND CANCELLATION OF THE PROTECTION CERTIFICATE

Article 15. Suspension of the Protection Certificate

1. The protection certificate will be suspended if it violates any of the following circumstances:

a) The owner of the protection certificate fails to fulfill the obligations stipulated in Article 12 of this Decree;

b) The plant variety does not meet the uniformity or stability requirements at the time the protection certificate was issued.

2. Any third party has the right to submit an application to the competent authority to review the suspension of the protection certificate based on the reasons stated in Clause 1 of this Article.

3. The protection certificate will regain its effectiveness when the owner of the protection certificate fulfills all obligations stipulated in Article 12 or restores the uniformity and stability as at the time the protection certificate was issued.

Article 16. Cancellation of the Protection Certificate

The protection certificate will be cancelled in the following cases:

1. The plant variety no longer maintains its original characteristics and traits at the time the protection certificate was issued;

2. The owner of the protection certificate voluntarily requests the competent authority to cancel the protection certificate;

3. When it is discovered that the owner of the protection certificate is not the eligible recipient of the protection certificate as stipulated in Article 5 of this Decree.

Article 17. Effectiveness of the suspension and cancellation of the protection certificate

1. When the protection certificate for a new plant variety is cancelled, the owner of the protection certificate must refund the full or partial fee paid by the purchaser of the license to exploit the new plant variety or by the transferee of the ownership of the protection certificate.

2. The decision to suspend or cancel the protection certificate before the expiration date does not affect previous decisions of the Court or the Minister of Agriculture and Rural Development regarding acts infringing upon the rights of the owner of the protection certificate.

3. During the period of suspension of the protection certificate, the owner of the protection certificate does not enjoy the rights stipulated in Article 11 of this Decree.

4. The owner of the Intellectual Property Certificate, if disagreeing with the decision to suspend or revoke the validity of the Intellectual Property Certificate, may file a complaint and such complaints shall be resolved in accordance with the Law on Complaints and Petitions.

Chapter V

STATE MANAGEMENT OF THE PROTECTION OF NEW PLANT VARIETIES

Article 18. Duties and powers of the Ministry of Agriculture and Rural Development in state management of the protection of new plant varieties

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

a) Submitting to competent state agencies for issuance, or issuing within its authority, legal instruments concerning the protection of new plant varieties;

b) Issuing Intellectual Property Certificates, revoking Intellectual Property Certificates;

c) Organizing training for officials to meet the requirements of protecting new plant varieties;

d) Inspecting, auditing, and handling violations related to the protection of new plant varieties;

đ) Resolving complaints and reports regarding the protection of new plant varieties.

2. The Ministry of Agriculture and Rural Development shall delegate competent agencies to perform the state management functions of the Ministry concerning the protection of new plant varieties, which include organizing and guiding the preparation, receipt, examination of files to submit to the leadership of the Ministry for issuance, suspension, revocation, and cancellation of Intellectual Property Certificates for new plant varieties.

Article 19. Responsibilities of Provincial People's Committees and Municipal People's Committees under Central Government

Provincial People's Committees under the Central Government shall perform state management functions over activities related to the protection of new plant varieties within their jurisdictions and shall have the following responsibilities:

1. To organize the management of new plant varieties within their localities in accordance with guidelines from the Ministry of Agriculture and Rural Development;

2. To inspect and handle, within their authority, acts of infringement of rights to new plant varieties in their localities.

Chapter VI

HANDLING VIOLATIONS

Article 20. Handling organizations and individuals who violate the regulations

Organizations and individuals who commit acts violating the laws on the protection of new plant varieties, depending on the nature and degree of violation, shall be subject to penalties or legal responsibility being pursued, and if serious damage is caused, they must provide compensation in accordance with the law.

Article 21. Handling persons in positions of authority who violate the regulations

Any person who abuses their position and power to commit acts violating the regulations on the protection of new plant varieties, including the issuance of Intellectual Property Certificates, shielding violators of the laws on the protection of new plant varieties, and other acts contrary to the laws on the protection of new plant varieties, depending on the nature and degree of violation, shall be subject to disciplinary action or legal responsibility being pursued in accordance with the law.

Chapter VII

IMPLEMENTING PROVISIONS

Article 22. Effectiveness

This Decree shall take effect fifteen days from the date of signature, all previous provisions that conflict with this Decree shall be abolished.

Article 23. Implementation Provisions

1. The Ministry of Agriculture and Rural Development shall take the lead and coordinate with the Ministry of Science and Technology and Environment to guide the implementation of this Decree.

2. The Ministry of Finance shall be responsible for coordinating with the Ministry of Agriculture and Rural Development to guide fee and tax rates, manage and utilize fees and taxes related to the protection of new plant varieties.

3. The ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, and chairpersons of provincial people's committees under central cities shall be responsible for enforcing this Decree.