Circular No. 16/2013/TT-BNNPTNT guiding the protection of rights for plant varieties

CIRCULAR

Guidelines on the protection of rights for plant varieties

Pursuant to Decree No. 01/2008/NĐ-CP dated January 3, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Agriculture and Rural Development; Decree No. 75/2009/NĐ-CP dated September 10, 2009 of the Government amending Article 3 of Decree No. 01/2008/NĐ-CP dated January 3, 2008 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 No. 50/2005/QH11 dated November 29, 2005; the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law No. 36/2009/QH12 dated June 19, 2009;

Pursuant to Decree No. 88/2010/NĐ-CP dated August 16, 2010 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law and the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law regarding rights for plant varieties and Decree No. 98/2011/NĐ-CP dated October 26, 2011 of the Government amending and supplementing certain provisions 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 certain 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 certain articles of Decree No. 105/2006/NĐ-CP;

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

The Minister of Agriculture and Rural Development issues this Circular guiding the protection of rights for plant varieties.

PART I

GENERAL PROVISIONS

This Circular guides the implementation of certain contents regarding the establishment of rights for plant varieties, representation of rights for plant varieties, examination of rights for plant varieties, and forms for protecting plant varieties.

Article 2. Applicability

This Circular applies to:

1. Organizations and individuals of Vietnam;

2. Organizations and individuals from foreign countries as defined in Clause 18, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law.

Article 3. Explanation of Terms

In this Circular, the following terms shall be understood as follows:

1. Breeding plant varieties is the process of sexual hybridization, inducing mutations, or applying other methods to create artificial variations and selecting those that meet production requirements.

2. Discovery and development of plant varieties:

a) Discovery is the activity of selecting natural variations already present within a population of a plant variety or finding new sources of genes available in nature;

b) Development is the process of propagating and evaluating to select variations or gene sources that meet production requirements.

Article 4. Legal representative, representative by power of attorney of the applicant

1. The legal representative of the applicant as provided for in Clause 2, Article 3 of Decree No. 88/2010/NĐ-CP includes:

a) In the case where the applicant is an organization or individual of Vietnam: the legal representative, the representative by power of attorney of the applicant, or an organization providing services for representing rights for plant varieties by power of attorney of the applicant;

b) In the case where the applicant is an organization or individual from a foreign country with a registered office or permanent address in Vietnam or with a production or business facility for plant varieties in Vietnam: the head of the representative office or branch in Vietnam, or an organization providing services for representing rights for plant varieties by power of attorney of the applicant;

c) In the case where the applicant is an organization or individual from a foreign country without a registered office or permanent address in Vietnam or without a production or business facility for plant varieties in Vietnam: an organization providing services for representing rights for plant varieties by power of attorney of the applicant.

1. From the date of publication of the application for plant variety protection on the website of the Plant Variety Protection Office or in the Agricultural and Rural Development Magazine until the date of issuance of the Decision granting the Plant Variety Protection Certificate, any third party has the right to submit objections to the Crop Production Department regarding the application rights, priority rights, conditions for protection, and other issues related to the acceptance of the application for plant variety protection.

2. The third party's objection must be made according to the form prescribed in Appendix 2 of this Circular, accompanied by explanations about the grounds and reasons for the objection, and any other evidence (if available), sent to the Crop Production Department.

3. Procedure and time limit for resolution:

a) Within thirty (30) working days from the date of receipt of the third party's opinion, the Crop Production Department shall notify the applicant for the plant variety protection application.

b) The applicant for the plant variety protection application shall have the responsibility to respond in writing to the Crop Production Department within thirty (30) working days from the date of the Department's notification.

c) Within fifteen (15) working days from the date of receipt of the applicant's response, if necessary, the Crop Production Department may organize direct dialogue between the third party and the applicant or notify the third party of the applicant's response.

d) The third party shall have the responsibility to respond in writing to the Crop Production Department within a maximum of thirty (30) working days from the date of the Department's notification.

đ) In cases where there are sufficient grounds to conclude that the third party's opinion lacks basis: within fifteen (15) working days from the date of receipt of the third party's response, the Crop Production Department must notify the third party of the refusal to consider, clearly stating the reasons.

e) In cases where there are insufficient grounds to conclude that the third party's opinion lacks basis: within thirty (30) working days from the date of receipt of the third party's response, the Crop Production Department shall notify the third party to request the Court to resolve the matter through civil litigation procedures. Within thirty (30) working days from the date of issuance of the notification, if no written response from the third party regarding submission of the lawsuit to the Court is received, the Crop Production Department shall consider the third party to have withdrawn the objection. If a response from the third party is received, the Crop Production Department shall suspend the processing of the application for plant variety protection pending the outcome of the dispute resolution by the Court. After receiving the resolution result from the Court, the processing of the application for plant variety protection will be carried out in accordance with that result and notified in writing to the third party within fifteen (15) working days.

1. A plant variety of the same species as the registered plant variety shall be considered a widely known plant variety in any of the following cases:

a) A plant variety whose propagation material or harvest material was widely used on the Vietnamese market or in any country at the time of filing the application for plant variety protection;

b) A plant variety that has been protected or recognized for trial production, officially recognized, or listed in the Catalogue of permitted plant varieties for production and trade in Vietnam or in any country;

c) A plant variety that is the subject of an application for new plant variety protection, a testing application, or an application for recognition of a new plant variety in Vietnam or in any country, provided that these applications have not been refused.

2. A plant variety shall be considered to have lost its novelty and does not meet the conditions for registration of protection twelve (12) months from the date it is included in the Catalogue of permitted plant varieties for production and trade in Vietnam.

1. The forms for protecting plant variety rights include:

a) The application form for registering the transfer contract of plant variety rights according to the model at Appendix 3 of this Circular;

b) The application form requesting compulsory transfer of plant variety usage rights according to the model at Appendix 4 of this Circular;

c) The Plant Variety Protection Certificate model as prescribed in Appendix 14 of this Circular;

d) Other forms as prescribed in Articles 4 to 35 of this Circular.

2. The Office for Protection of New Plant Varieties accepts applications and files for plant variety protection through one of the following methods:

a) Direct receipt;

b) Receipt via postal service.

3. The place of acceptance and issuance of results for applications and files for plant variety protection at the Office for Protection of New Plant Varieties - Crop Production Department, address: No. 2 Ngoc Ha - Ba Dinh - Hanoi, phone: (04) 38435182, fax: (04) 37342844, email: [email protected], website: pvpo.mard.gov.vn.

4. The submission date is the date when the Office for Protection of New Plant Varieties receives the application as stipulated in Clause 2 of Article 175 of the Intellectual Property Law.

a) Fees and charges related to the protection of plant variety rights shall be implemented in accordance with Circular No. 180/2011/TT-BTC dated December 14, 2011, issued by the Ministry of Finance on the levels of collection, payment, management, and use of fees and charges in crop production and forestry seedling sectors;

b) Individuals participating in training courses on representation of plant variety rights or training courses on plant variety rights appraisal must pay for the training costs.

Chapter II

ESTABLISHING RIGHTS FOR PLANT VARIETIES

1. Documents in the registration application Documents in the registration application are regulated in Article 273 of the Intellectual Property Law and Article 8 of Decree No. 88/2010/NĐ-CP, as follows:

a) The application form for registering plant varieties according to the model at Appendix 5 of this Circular;

b) The technical examination form for DUS according to the model at the examination regulation of each crop species;

c) A copy of the fee and charge receipt or a faxed document proving the transfer of money into the account of the Crop Production Department;

d) Power of attorney according to the model at Appendix 1 of this Circular (if submitted through a representative);

e) Photographs of the plant variety samples: At least three color photographs showing three distinctive characteristics of the variety, size 9cm x 15cm;

2. Notification of acceptance of the registration application for plant variety protection according to the model at Appendix 6 of this Circular.

3. The Director of the Crop Production Department decides to issue Plant Variety Protection Certificates, and certificates of registration of transfer contracts of plant variety rights in cases of transferring Plant Variety Protection Certificates.

1. Before the Crop Production Department issues a refusal notice, an acceptance notice, a decision to issue a Plant Variety Protection Certificate, or a refusal notice to issue a Plant Variety Protection Certificate, the applicant has the right to request or upon the Crop Production Department's requirement to correct typographical errors in the name and address of the applicant, author of the variety, or name of the plant variety; amend and supplement the documents in the application without changing the essence of the application. In case the applicant changes the essence of the application (changing the owner, author of the variety, registered variety), they must resubmit the application from the beginning as prescribed.

2. Applicants who request amendments and supplements must submit one set of documents to the Crop Production Department. The documents include:

a) The application form for amending and supplementing the application according to the model at Appendix 7 of this Circular;

b) A certified copy or original document presented for comparison: Decision to change name or address or Business Registration Certificate noting the change of name or address or other legal documents proving the change of name or address of the applicant, author of the plant variety (in case of correcting errors in the name and address of the applicant, author of the plant variety);

c) Explanation of the change of variety name (in case of amending the variety name);

d) New documents that have been amended, accompanied by a detailed description of the amended content compared to the initial documents submitted in the application (in case of amending and supplementing the documents in the application);

e) Power of attorney according to the model at Appendix 1 of this Circular (in case of changing the representative);

f) A copy of the fee and charge receipt or a faxed document proving the transfer of money into the account of the Crop Production Department.

3. Procedure and time limit for resolution:

a) Within five (05) working days from the date of receiving the documents, the Crop Production Department determines the completeness of the documents according to the regulations and sends a request for supplementation if the documents are incomplete according to the regulations;

b) Within thirty (30) working days from the date the Crop Production Department receives complete documents according to the regulations, the Director of the Crop Production Department signs the notification of acceptance of the amendment and supplementation of the application and publishes it on the website of the Office for Protection of New Plant Varieties within five (05) working days from the date of signing the notification or in the Rural Development Magazine. If not resolved, a written notification must be issued, stating the reasons.

1. If the plant variety owner has not filed an application for protection after transferring ownership to another organization or individual in accordance with the law, the transferee shall have the right to file such an application for protection in accordance with the provisions.

2. The documents in the application for protection as stipulated in Clause 1, Article 9 of this Circular and additional documents proving the right to file the application, including the transfer contract of the plant variety ownership (original or certified copy) in Vietnamese or must be translated into Vietnamese, each page must be signed by both parties or stamped with a cross-seal.

1. Prior to the Plant Cultivation Department issuing a notification rejecting the application, accepting the application; deciding to grant a Certificate of Protection or notifying the rejection of granting a Certificate of Protection for the plant variety, the applicant has the right to assign the application for plant variety protection to another person. The assignee becomes the new applicant. The assignment of the application for protection shall be made in a contract in accordance with Clause 2, Article 25 of Decree 88/2010/ND-CP.

2. The applicant (the assignor of the application for protection) submits one set of documents to the Plant Cultivation Department. The documents include:

a) An application form for registering the assignment contract of the application for protection according to the model at Appendix 3 of this Circular;

b) The contract (original or certified copy) in Vietnamese or must be translated into Vietnamese, each page must be signed by both parties or stamped with a cross-seal;

c) A consent document from co-owners, in cases where the plant variety is jointly owned;

d) A copy of the receipt for payment fees or proof of money transfer into the account of the Plant Cultivation Department;

đ) In cases where the plant variety was created using state budget funds, additional documents proving that the assignment was carried out in accordance with Clause 1, Article 27 of Decree No. 88/2010/ND-CP must be provided.

3. Procedure and time limit for resolution:

a) Within five (05) working days from the date of receiving the documents, the Plant Cultivation Department determines the completeness of the documents in accordance with the regulations. If the documents are incomplete, the Plant Cultivation Department will notify the deficiencies clearly, setting a deadline of thirty (30) working days from the date of signing the notification for the applicant to correct the deficiencies and provide feedback. If the applicant does not correct or supplement within the above period, the Plant Cultivation Department will issue a notification rejecting the application, stating the reasons.

b) Within thirty (30) working days from the date the Plant Cultivation Department receives complete documents in accordance with the regulations, the Director of the Plant Cultivation Department signs a notification accepting the assignment of the application and publishes it on the website of the New Plant Variety Protection Office within five (05) working days from the date of signing the notification or in the Agricultural and Rural Development Magazine.

1. Organizations and individuals meeting the conditions stipulated in Clause 1, Article 1 of Decree No. 98/2011/ND-CP and satisfying specific requirements for DUS testing for each type of crop, submit one (01) set of documents to the Plant Cultivation Department requesting designation to conduct DUS testing. The documents include:

a) A request form for designation to conduct DUS testing according to the model specified in Appendix 8 of this Circular;

b) Decision on establishment or Business Registration Certificate, or Investment License of the organization; identity card or passport of the individual (certified copy or original for verification).

2. Procedure and Timeframe for Resolution:

a) Within five (05) working days from the date of receiving the documents, the Plant Cultivation Department determines the completeness of the documents in accordance with the regulations and guides supplementation if the documents are incomplete;

b) Within thirty (30) working days from the date the Plant Cultivation Department receives complete documents in accordance with the regulations, the Director of the Plant Cultivation Department establishes an Evaluation Team consisting of two to three people to evaluate the conditions for conducting DUS testing on plant varieties at the site;

c) Within ten (10) working days from the date the Plant Cultivation Department receives the evaluation report of the inspection team and the corrective report of the organization or individual applying for DUS testing, the Director of the Plant Cultivation Department signs a decision designating organizations and individuals to conduct DUS testing on plant varieties; publishes it on the website of the New Plant Variety Protection Office within five (05) working days from the date of signing the decision. In case of non-resolution, a written notification must be issued, stating the reasons.

d) The validity period of the designation decision is ten (10) years. Ninety (90) days before the expiration of the validity period, organizations and individuals wishing to be designated again must submit a request form according to the model specified in Appendix 8 of this Circular. Based on the request form and the results of supervision during the designated period, the Director of the Plant Cultivation Department signs a decision to re-designate or not to re-designate organizations and individuals to conduct DUS testing on plant varieties, stating the reasons.

3. Supervision of Activities of Designated Organizations and Individuals Conducting DUS Testing

a) Inspection frequency is at least once every two years, except for unscheduled inspections;

b) The Director of the Plant Cultivation Department establishes an Inspection Team consisting of two to three people to conduct on-site inspections;

c) On-site inspections are conducted at the DUS testing organization and at least one (01) DUS testing experiment. The inspection results serve as the basis for maintaining, warning, suspending, or revoking the validity of the designation decision;

d) Inspection contents: checking the suitability of organizations and individuals conducting DUS testing with the designated conditions; the suitability of the DUS testing experiments with the DUS testing regulations; records and results of DUS testing;

đ) In cases where organizations and individuals conducting DUS testing make errors, they must immediately take corrective actions and report the results to the Plant Cultivation Department according to the time specified in the inspection report; the Plant Cultivation Department reviews the corrective results based on the corrective report of the DUS testing organization or individual; if necessary, on-site inspections may be conducted again.

4. Evaluation reports and inspection reports according to the models at Appendix 9; corrective reports according to the model specified in Appendix 10 of this Circular.

1. Rights of organizations and individuals designated for DUS examination:

a) Conduct examinations based on contracts signed with organizations and individuals possessing plant varieties subject to designation;

b) Charge examination fees according to state regulations or agreements with organizations and individuals possessing plant varieties if there are no state regulations;

c) Refuse to provide information related to examination results to third parties unless required by competent state authorities.

2. Obligations of organizations and individuals designated for DUS examination:

a) Meet conditions as stipulated in Article 16 of Decree No. 88/2010/NĐ-CP amended;

b) Carry out examinations according to the DUS examination standards set forth in Clause 3 of Article 15 of Decree No. 88/2010/NĐ-CP;

c) Conduct DUS examinations within the scope designated. They may not refuse to conduct examinations without legitimate reasons;

d) Based on examination standards, establish specific procedures for each examination object to be submitted to the Crop Cultivation Department and notified to organizations and individuals registering for examination;

đ) Ensure transparency, impartiality, independence, objectivity, accuracy, and non-discrimination in examination activities;

e) Submit to the Crop Cultivation Department reports on examination results according to Form 13 of this Circular within forty-five (45) working days from the date of completion of the examination; report any changes affecting designated operational capacity within fifteen (15) days from the date of change;

g) Refund examination fees to applicants according to Clause 4, Clause 5 of Article 15 of Decree No. 88/2010/NĐ-CP;

h) Be responsible under the law for the examination results conducted by themselves; be subject to inspection and audit by competent state authorities.

1. Warning when organizations and individuals designated for examination have errors but they do not affect examination results.

2. Suspension of the designation decision in cases where technical errors can be corrected and have not caused serious consequences including:

a) Actions to rectify errors noted in inspection records were not fully implemented;

b) Complaints about examination results due to errors of organizations and individuals conducting examinations were not resolved;

c) Failure to comply with reporting requirements as stipulated in Point e Clause 2 of Article 14 of this Circular.

3. Restoration of the effectiveness of the designation decision when errors have been corrected.

4. Revocation of the effectiveness of the designation decision in cases where organizations and individuals conducting examinations commit serious errors: failing to meet conditions stipulated in Clause 3 of Article 15, Article 17 of Decree No. 88/2010/NĐ-CP or publishing false examination results. Within one (01) year from the date the Director of the Crop Cultivation Department decides to revoke the designation decision, organizations and individuals conducting examinations may not engage in examination activities. If they wish to resume examinations thereafter, they must re-register for designation according to Clause 1, Clause 2 of Article 13 of this Circular.

1. In addition to the documents prescribed in Article 273 of the Intellectual Property Law, when the applicant conducts DUS testing on their own variety, they must submit the following additional documents to the Crop Production Department:

a) A detailed declaration form for self-testing conditions according to Model Form 11 of this Circular, which is consistent with the specific requirements of the DUS testing regulations for each crop species.

b) A testing plan according to Model Form 12 of this Circular.

2. The Crop Production Department will review the application file, conduct on-site inspections if necessary, and notify the applicant of permission to conduct self-testing for the registered variety in the acceptance notice as stipulated in Clause 2 of Article 9 of this Circular.

3. Within thirty (30) working days from the date of issuance of the notification allowing self-testing, if there are changes to the testing plan, the applicant must report in writing to the Crop Production Department.

4. Within forty-five (45) working days from the end of the testing period, the applicant must submit to the Crop Production Department a report on the testing results according to Model Form 13 of this Circular.

5. On-Site Inspection

a) The Crop Production Department will establish an inspection team consisting of two to three (2-3) members, including at least one (1) specialist from the designated DUS testing agency or specialized research institution of the crop species.

b) The inspection team will evaluate the DUS testing experiment at least once during a suitable time according to the DUS testing regulations.

c) Content of the inspection: compliance of organizations and individuals with the conditions for self-testing; implementation of testing according to the testing regulations and testing results.

d) The on-site inspection record will be prepared according to the model form specified in Appendix 9 of this Circular; the inspection record serves as a basis for the Crop Production Department to verify the testing result report submitted by the applicant and will be kept in the verification file of the testing results.

6. Handling of inspection results

a) If the organization or individual conducting self-testing has errors but these do not affect the testing results, they must immediately take corrective actions and report the results to the Crop Production Department according to Model Form 10 of this Circular.

b) If the organization or individual conducting testing commits serious errors as stipulated in Clause 4 of Article 15 of this Circular, they will be required to cease self-testing and choose another testing method for the registered variety.

1. The time limit for submission of variety samples, management and use of variety samples shall be implemented according to Circular No. 41/2009/TT-BNNPTNT dated July 9, 2009, concerning the management and use of variety samples.

2. Within a maximum period of one (1) year from the date of acceptance of a valid application, if the applicant does not submit the variety sample to the testing agency, the application will be rejected.

Article 18. Amendment of Plant Variety Protection Certificate

1. The certificate holder has the right to request the Crop Production Department to change or correct errors regarding the name and address of the certificate holder.

2. When requesting an amendment to the Plant Variety Protection Certificate, the certificate holder must submit one (1) set of documents to the Crop Production Department. The documents include:

a) An application form for amending the Plant Variety Protection Certificate according to Model Form 15 of this Circular.

b) The original Plant Variety Protection Certificate.

c) A certified copy (or original presented for comparison) of the decision to change the name or address, or the Business Registration Certificate indicating the change of name or address, or other legal documents proving the change of name or address of the certificate holder.

d) Power of attorney (if submitting through a representative).

đ) A photocopy of the receipt for payment of fees or a faxed document proving payment into the Crop Production Department's account.

3. Procedure and time limit for resolution:

a) Within three (3) working days from the date of receiving the application, the Crop Production Department will determine the completeness of the application according to the prescribed requirements and send a notification requesting supplementary information if the application is incomplete.

b) Within fifteen (15) working days from the date of receiving a complete application, the Director of the Crop Production Department will sign the decision to amend the Plant Variety Protection Certificate, record it in the National Register, and publish it on the website of the New Plant Variety Protection Office within five (5) working days from the date of signing the decision or in the Agricultural and Rural Development Magazine. If the request is not granted, a written notification must be issued stating the reasons.

4. In cases where the Plant Variety Protection Certificate contains errors due to the Crop Production Department, the Crop Production Department must issue a new certificate within three (3) working days from the date of the request (without charging a fee for issuing the new certificate).

1. The certificate holder has the right to request the Crop Production Department to reissue a Plant Variety Protection Certificate in the following cases:

a) The certificate is lost;

b) The certificate is damaged, torn, dirty, or faded to the extent that it cannot be used.

2. The certificate holder who requests a reissue shall submit one (01) set of documents to the Crop Production Department. The documents include:

a) A form requesting the reissue of a Plant Variety Protection Certificate according to Model 16 of this Circular;

b) Power of attorney (if submitting through a representative);

c) A copy of the fee and charge receipt or a faxed document proving the transfer of money into the account of the Crop Production Department;

d) The damaged, torn, dirty, or faded certificate.

3. Procedure and time limit for resolution:

a) Within three (03) working days from the date of receiving the documents, the Crop Production Department shall determine the completeness of the documents as prescribed and send a request for supplementation if the documents are incomplete as prescribed;

b) Within fifteen (15) working days from the date of receiving complete documents as prescribed, the Director of the Crop Production Department shall sign a decision to reissue the Plant Variety Protection Certificate, record it in the National Register. In case of non-resolution, a written notification must be issued, specifying the reasons.

1. During the validity period of the certificate, any third party has the right to submit one (01) set of documents to request the suspension of effectiveness of the Plant Variety Protection Certificate to the Crop Production Department on the grounds that the protected plant variety does not meet the uniformity and stability requirements at the time of issuance as stipulated in Point a Clause 1 Article 7901 of the Intellectual Property Law. The documents include:

a) A form requesting the suspension of effectiveness of the protection certificate according to Model 17 of this Circular;

b) Documentation and evidence proving that the plant variety does not meet the uniformity and stability requirements at the time of issuance of the certificate;

c) A copy of the receipt for the re-examination fee and a faxed document proving payment into the account of the Crop Production Department.

2. Procedure and Timeframe for Resolution

a) Within thirty (30) working days from the date of receiving the request to suspend the effectiveness of the plant variety protection certificate from any third party, the Crop Production Department must complete the verification of information stated in the request; if there is sufficient basis, notify the certificate holder of the proposed suspension; if there is insufficient basis, notify the third party and specify the reasons. The request to suspend the effectiveness of the 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 issuance of the certificate and pay the re-examination fee;

b) After thirty (30) working days from the date of issuing the notice of proposed suspension by the plant variety protection authority, if the certificate holder does not file an objection, the Crop Production Department shall issue a decision to suspend the effectiveness of the plant variety protection certificate and notify the third party. The effective date of the suspension is the date of signing the decision to suspend the effectiveness of the certificate and will be published on the website of the Plant Variety Protection Office or in the Agricultural and Rural Development Magazine;

c) If the certificate holder files an objection, within thirty (30) working days from the date of receiving the objection, the Crop Production Department shall require the certificate holder to carry out re-examination procedures as prescribed in Clause 4 Article 15 of Decree 88/2010/NĐ-CP; the re-examination shall be conducted by the examination agency specified in Point a Clause 1 Article 15 of Decree 88/2010/NĐ-CP. If the re-examination results show that the plant variety does not meet the uniformity or stability requirements at the time of issuance of the certificate, within thirty (30) working days from the date of receiving the re-examination results, the Crop Production Department shall proceed with the suspension procedures as prescribed in Point b of this clause and refund the re-examination fee to the person requesting the suspension of the certificate's effectiveness. If the re-examination results show that the plant variety meets the uniformity or stability requirements at the time of issuance of the certificate, within fifteen (15) working days from the date of receiving the re-examination results, the Crop Production Department shall notify the third party.

1. Within thirty (30) working days from the date the Director of the Crop Production Department issues a notice to suspend the effectiveness of the Plant Variety Protection Certificate, the certificate holder has the right to submit one (1) set of application documents for restoration of the certificate's effectiveness to the Crop Production Department. The documents include:

a) An application form for restoring the effectiveness of the protection certificate according to the model at Appendix 18 of this Circular;

b) Evidence proving that the certificate holder has remedied the reasons for suspension;

c) A copy of the receipt for payment of fees and charges or a faxed document proving the transfer of funds to the Crop Production Department’s account.

2. Timeframe for resolution:

a) In cases where the suspension reason is due to non-payment of maintenance fees, failure to change the plant variety name, or failure to provide breeding materials: Within five (05) working days from the date evidence shows that the certificate holder has taken corrective actions, the Director of the Crop Production Department will issue a decision to restore the certificate's effectiveness, record it in the National Register, and publish it on the website of the New Plant Variety Protection Office within five (05) working days from the date of the decision or in the Agricultural and Rural Development Magazine;

b) In cases where the suspension reason is due to the plant variety not meeting the uniformity and stability requirements as stipulated in point a, Clause 1, Article 7901 of the Intellectual Property Law: Within ten (10) working days from the date the certificate holder proves that the variety meets the conditions for uniformity and stability, the Director of the Crop Production Department will issue a decision to restore the certificate's effectiveness, record it in the National Register, and publish it on the website of the New Plant Variety Protection Office within five (05) working days from the date of the decision or in the Agricultural and Rural Development Magazine.

1. During the validity period of the Plant Variety Protection Certificate, any third party has the right to submit one (1) set of application documents for revoking the certificate's effectiveness to the Crop Production Department if there are signs of violation as prescribed in Clause 1, Article 7909 of the Intellectual Property Law. The documents include:

a) An application form for revoking the effectiveness of the protection certificate according to the model at Appendix 17 of this Circular;

b) Evidence proving the reason for requesting the revocation of the certificate's effectiveness;

c) A copy of the receipt for re-examination fees or a faxed document proving the transfer of funds to the Crop Production Department’s account (applicable to points b and c of Clause 1, Article 7909 of the Intellectual Property Law).

2. Procedure and Timeframe for Resolution:

a) Within five (05) working days from the date of receiving the documents, the New Plant Variety Protection Office will determine the completeness of the documents according to regulations and request additional information if the documents are incomplete;

b) If the reason for requesting the revocation of the certificate's effectiveness is that the plant variety does not meet the novelty requirement or the certificate holder is not entitled to file an application: Within thirty (30) working days from the date of receiving complete documents according to regulations, the Director of the Crop Production Department will issue a decision to revoke the certificate's effectiveness, record it in the National Register, or notify the rejection of the revocation request with clear reasons and publish it on the website of the New Plant Variety Protection Office within five (05) working days from the date of the decision or in the Agricultural and Rural Development Magazine.

c) If the reason for requesting the revocation of the certificate's effectiveness is that the plant variety does not meet the distinctness, uniformity, or stability requirements: Within ten (10) working days from the end of the re-examination results review, the Director of the Crop Production Department will issue a decision to revoke the certificate's effectiveness, record it in the National Register, or notify the rejection of the revocation request with clear reasons and publish it on the website of the New Plant Variety Protection Office within five (05) working days from the date of the decision or in the Agricultural and Rural Development Magazine.

Chapter III

REPRESENTATION OF RIGHTS FOR PLANT VARIETIES

Article 23. Training on representation of plant variety rights

1. The training content on representation of plant variety rights includes two parts:

a) Laws on plant variety rights, including legal provisions of Vietnam and international treaties, bilateral agreements that Vietnam participates in;

b) Professional skills in representing plant variety rights, including the application of laws in filing, processing, and monitoring applications for plant variety rights; general regulations on DUS testing; and professional skills in searching and exploiting information on plant variety protection.

2. The Director of the Crop Production Department approves the training program on representation of plant variety rights, which includes the training content, duration, instructor requirements, and a set of questions to test professional skills in representing plant variety rights.

3. Individuals who fully participate in the training on laws regarding plant variety rights shall be issued a Certificate of Training on Plant Variety Rights. Those who fully participate in the training on professional skills in representing plant variety rights and achieve a passing grade or higher in the professional skills test shall be considered to have met the requirements for the professional skills test.

4. Implementation of training on representation of plant variety rights:

a) The Crop Production Department notifies individuals requesting training about the training content, time, location, and training costs;

b) The Crop Production Department organizes training on representation of plant variety rights and conducts professional skills tests according to the approved training program by the Director of the Crop Production Department;

c) The Director of the Crop Production Department issues Certificates of Training on Plant Variety Rights and approves the list of individuals meeting the professional skills test requirements; announces this on the new Plant Variety Protection Office's website.

Article 24. Issuance of Certificate for Practicing Plant Variety Rights Representation Services

1. Individuals meeting the conditions stipulated in Point 5, Clause 21, Article 1 of the amended Intellectual Property Law who request issuance of a Certificate for Practicing Plant Variety Rights Representation Services shall submit one (01) set of documents to the Crop Production Department. The documents include:

a) A form requesting issuance of a Certificate for Practicing Plant Variety Rights Representation Services according to Appendix 19 of this Circular;

b) A copy of the National Identity Card;

c) A bachelor’s degree diploma (certified copy or original for verification);

d) A copy of the Certificate of Training on Plant Variety Rights or an original of one of the following documents: Confirmation from the training institution that the applicant has completed a thesis on plant variety rights at the bachelor’s or postgraduate level; a certified copy of the thesis with the original for verification; Confirmation from the competent authority that the applicant has directly worked in examining applications for plant variety protection at national or international offices or has continuously worked in plant variety rights law for five (05) years or more.

e) Two (02) 3x4 photographs;

f) A copy of the fee and charge receipt or a faxed document proving the transfer of money into the account of the Crop Production Department.

2. Procedure and Timeframe for Resolution:

a) Within three (03) working days from the date of receiving the documents, if the documents are incomplete, the Crop Production Department will notify the applicant, clearly stating the reasons.

b) Within ten (10) working days from the date of receiving complete documents as prescribed, the Director of the Crop Production Department signs a decision to issue a Certificate for Practicing Plant Variety Rights Representation Services to eligible applicants whose names appear on the list of those meeting the professional skills test requirements for representing plant variety rights; records this in the National Register of Plant Variety Rights Representation and publishes it on the new Plant Variety Protection Office's website within five (05) working days from the signing date. In case of refusal, a written notification must be issued, clearly stating the reasons.

Article 25. Revocation of the Professional Certificate for Plant Variety Rights Representation Services

1. The Professional Certificate shall be revoked in the following cases:

a) The holder of the Professional Certificate for Plant Variety Rights Representation Services violates the provisions set forth in Clause 2, Article 38 of Decree No. 88/2010/ND-CP or other legal regulations, and is recommended by the competent authority to revoke the Professional Certificate;

b) There is evidence that the Professional Certificate was issued contrary to the regulations, and the recipient does not meet the requirements stipulated in Point 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law.

2. Procedures for revoking the Professional Certificate when there are grounds for revocation according to Clause 1 of this Article, the National Plant Variety Protection Office shall implement the following procedures:

a) Submit to the Director of the Crop Production Department for issuance of a decision to revoke the Professional Certificate for Plant Variety Rights Representation Services based on the recommendation of the competent state authority as specified in Point a, Clause 1 of this Article;

b) Remove the name from the National Register of Representatives for Plant Variety Rights;

c) Announce on the website of the National Plant Variety Protection Office within five (05) working days from the date of signing the decision.

Article 26. Reissuance of the Professional Certificate for Plant Variety Rights Representation Services

1. A person whose Professional Certificate has been lost, torn, soiled, or faded to the point of being unusable, or a person whose Professional Certificate has been revoked and has exceeded three (03) years since the date of revocation as provided in Point a, Clause 1 of Article 25 of this Circular may request reissuance of the Professional Certificate.

2. A person requesting reissuance of the Professional Certificate shall submit one (01) set of application documents to the Crop Production Department. The documents include:

a) An application form for reissuance of the Professional Certificate according to Model 20 of this Circular;

b) Two (02) 3x4 photographs;

c) A copy of the receipt for payment of fees and charges or a faxed document proving the transfer of funds to the Crop Production Department’s account.

3. Procedure and time limit for resolution:

a) Within three (03) working days from the date of receiving the documents, the Crop Production Department shall determine the completeness of the documents as prescribed and send a request for supplementation if the documents are incomplete as prescribed;

b) Within ten (10) working days from the date the Crop Production Department receives complete application documents as prescribed, the Director of the Crop Production Department shall reissue the Professional Certificate for Plant Variety Rights Representation Services.

4. In the case where the Professional Certificate for Plant Variety Rights Representation Services is faulty due to the Crop Production Department, the Department must reissue the certificate free of charge within three (03) working days from the date of receiving the request.

1. An organization wishing to be registered as an organization providing Plant Variety Rights Representation Services shall submit one (01) set of application documents to the Crop Production Department. The documents include:

a) An application form for registration as an organization providing Plant Variety Rights Representation Services according to Model 21 of this Circular;

b) A list of members holding the Professional Certificate for Plant Variety Rights Representation Services (certified copy or original for verification), including the head of the organization or a person authorized by the head of the organization;

c) A certified copy of the Business Registration Certificate or the Certificate of Operation of the organization;

d) A certified copy of the receipt for fees and charges or a faxed document proving payment into the account of the Crop Production Department.

2. Procedure and Timeframe for Resolution:

a) Within five (05) working days from the date of receiving the documents, the Crop Production Department determines the completeness of the documents according to the regulations and sends a request for supplementation if the documents are incomplete according to the regulations;

b) Within fifteen (15) working days from the date the Crop Production Department receives complete application documents as prescribed, the Director of the Crop Production Department shall issue a notice registering the organization as a provider of Plant Variety Rights Representation Services, enter it into the National Register of Representatives for Plant Variety Rights; announce on the website of the National Plant Variety Protection Office within five (05) working days from the date of signing the decision or in the Rural Development Magazine. If rejected, a written notification must be issued, stating the reasons.

1. A service organization representing rights for plant varieties that requests recording changes to its name or address, or to the list of representatives of rights for plant varieties, shall submit one (01) set of application documents to the Crop Cultivation Department. The documents include:

a) An application form for recording changes to information on the service organization representing rights for plant varieties according to the model attached at Appendix 22 of this Circular;

b) A certified copy of the business registration certificate or the certificate of operation registration that has been amended of the service organization representing rights for plant varieties;

c) Decisions on recruitment or termination of employment contracts with members listed in the representative list of rights for plant varieties of the organization;

d) A certified copy of the receipt for fees and charges or a faxed document proving payment into the account of the Crop Production Department.

2. Procedure and Timeframe for Resolution:

a) Within three (03) working days from the date of receiving the documents, the Crop Production Department shall determine the completeness of the documents as prescribed and send a request for supplementation if the documents are incomplete as prescribed;

b) Within ten (10) working days from the date when the Crop Cultivation Department receives complete application documents as prescribed, the Director of the Crop Cultivation Department shall sign a notification to record changes to information on the service organization representing rights for plant varieties, which will be entered into the National Register of Representatives of Rights for Plant Varieties; and publish on the website of the New Plant Variety Protection Office within five (05) working days from the date of signing the notification or in the Agricultural and Rural Development Magazine. In case of refusal, a written notification must be issued, stating the reasons.

In cases where a service organization representing rights violates the provisions of Clause 2, Article 37 of Decree No. 88/2010/NĐ-CP and is proposed to be removed by the competent authority, the New Plant Variety Protection Office shall carry out the following procedures:

1. Submit to the Director of the Crop Cultivation Department for issuance of a decision to remove the name of the service organization representing rights;

2. Remove the name from the National Register of Representatives of Rights for Plant Varieties;

3. Publish on the website of the New Plant Variety Protection Office within three (03) working days from the date of signing the decision or in the Agricultural and Rural Development Magazine.

Chapter IV

INSPECTION OF RIGHTS FOR PLANT VARIETIES

Article 30. Training on Inspection of Rights for Plant Varieties

1. The training content on inspection of rights for plant varieties includes two parts:

a) Laws on plant variety rights, including legal provisions of Vietnam and international treaties, bilateral agreements that Vietnam participates in;

b) Professional skills in inspecting rights for plant varieties include applying laws to determine the scope of protection; factors constituting infringement of rights for plant varieties; differences between the variety under consideration and the protected variety; value of rights for plant varieties and damage value.

2. The Director of the Crop Cultivation Department shall approve the training program on inspection of rights for plant varieties including: content, duration of training, requirements for trainers, and a set of questions for testing professional skills in inspection of rights for plant varieties.

3. Participants who attend all training content on inspection of rights for plant varieties and achieve a passing score or higher in the professional skills test on inspection of rights for plant varieties are considered to have met the requirements for such testing.

4. Implementation of training on inspection of rights for plant varieties:

a) The Crop Cultivation Department shall notify individuals requesting training about the content, time, location, and cost of training.

b) The Crop Cultivation Department shall organize training on inspection of rights for plant varieties and conduct a professional skills test on inspection of rights for plant varieties according to the approved training program by the Director of the Crop Cultivation Department.

c) The Director of the Crop Cultivation Department shall approve the list of those who meet the requirements for the professional skills test on inspection of rights for plant varieties and announce it on the website of the New Plant Variety Protection Office.

Article 31. Issuance of Plant Variety Rights Appraiser Card

1. Individuals who are Vietnamese citizens, have full capacity for civil acts, reside permanently in Vietnam, meet the requirements of professional examination on appraising plant variety rights, have not been administratively sanctioned for violating intellectual property laws or professional ethics, and are not under criminal prosecution or have been convicted but not yet rehabilitated, have the right to request issuance of a Plant Variety Rights Appraiser Card (hereinafter referred to as the Appraiser Card).

2. Individuals as stipulated in Clause 1 of this Article must submit one (01) set of application dossier to the Crop Production Department. The dossier includes:

a) An application form for the Appraiser Card according to the model at Appendix 23 of this Circular;

b) A copy of the National Identity Card;

c) A bachelor's degree certificate in crop production, agronomy, or related fields concerning plant varieties (a certified copy or original for verification);

d) Documentation with confirmation from the competent authority that the applicant has directly worked in the field of plant varieties for five (05) years or more;

e) Two (02) 3x4 photographs;

f) A copy of the fee and charge receipt or a faxed document proving the transfer of money into the account of the Crop Production Department.

3. Procedure and time limit for resolution:

a) Within five (05) working days from the date of receiving the dossier, if the dossier is incomplete, the Crop Production Department shall notify the applicant, clearly stating the reasons;

b) Within fifteen (15) working days from the date of receiving a complete dossier, the Director of the Crop Production Department shall issue the Appraiser Card to individuals meeting the conditions according to the model prescribed in Appendix 24 issued together with this Circular; record it in the National Register of Plant Variety Rights Appraisers; announce on the website of the Office for Protection of New Plant Varieties within five (05) working days from the date of issuance. In case of refusal, a written notification must be issued, clearly stating the reasons.

Article 32. Revocation of the Appraiser Card

1. The Appraiser Card shall be revoked in the following cases:

a) The holder of the Appraiser Card violates the provisions of Article 52 of Decree No. 105/2006/NĐ-CP or other legal regulations, and is proposed by a competent state agency to revoke the Appraiser Card;

b) There is evidence confirming that the Appraiser Card was issued contrary to regulations, and the recipient does not meet the requirements stipulated in Clause 12 of Article 1 of Decree No. 119/2011/NĐ-CP and Clause 1 of Article 30 of this Circular;

c) The recipient of the Appraiser Card abandons or fails to perform appraisal activities.

2. Procedures for revoking the Appraiser Card When there is a basis for revoking the Appraiser Card as prescribed in Clause 1 of this Article, the Crop Production Department shall implement the following procedures:

a) The Director of the Crop Production Department signs the decision to revoke the Appraiser Card;

b) Remove the name from the National Register of Appraisers of Plant Variety Rights;

c) Announce on the website of the Office for Protection of New Plant Varieties within five (05) days from the date of signing the decision.

Article 33. Reissuance of the Appraiser Card

1. Individuals whose Appraiser Card is lost, damaged, soiled, or faded to the point of being unusable, or those whose Appraiser Card has been revoked and have completed the period of deprivation of the right to use the Appraiser Card as prescribed in Point a, Clause 1 of Article 32 of this Circular, if they request reissuance of the Appraiser Card, must submit one (01) set of application dossier to the Crop Production Department. The dossier includes:

a) An application form for reissuing the Appraiser Card according to the model at Appendix 25 of this Circular;

b) The Appraiser Card (in case of damage);

c) Two (02) 3x4 photos;

d) A certified copy of the receipt for fees and charges or a faxed document proving payment into the account of the Crop Production Department.

2. Procedure and Timeframe for Resolution:

a) Within five (05) working days from the date of receiving the documents, the Crop Production Department determines the completeness of the documents according to the regulations and sends a request for supplementation if the documents are incomplete according to the regulations;

b) Within ten (10) working days from the date the Crop Production Department receives a complete dossier as prescribed, the Director of the Crop Production Department shall reissue the Appraiser Card. In case of refusal, a written notification must be issued, clearly stating the reasons.

3. In case the Plant Variety Rights Appraiser Card is faulty due to the Crop Production Department, the Crop Production Department must reissue the Appraiser Card free of charge within three (03) working days from the date of receipt of the request.

Article 34. Issuance of Certificate of Eligibility for Plant Variety Rights Appraisal Activities

1. An organization that meets the requirements stipulated in Clause 10, Article 1 of Decree No. 119/2010/ND-CP, if it requests issuance of a Certificate of Eligibility for Plant Variety Rights Appraisal Activities (hereinafter referred to as the Certificate), shall submit one (01) set of application documents along with fees and charges as prescribed to the Crop Production Department. The application documents include:

a) A request form for issuance of the Certificate of Eligibility for Plant Variety Rights Appraisal Activities according to the model at Appendix 26 of this Circular;

b) Decision on recruitment or labor contract between the organization and the appraiser working for the organization (certified copy or original presented for verification);

c) Business registration certificate, scientific and technological activity registration certificate, or lawyer practice registration certificate (certified copy or original presented for verification), which includes the function of conducting plant variety rights appraisal activities;

d) Statistical table on office premises, equipment, working tools; sources of necessary information databases to conduct appraisal activities (list of permitted varieties for production and trade, list of protected varieties, technical standards of UPOV and Vietnam);

đ) A certified copy of the receipt for payment of fees and charges or a faxed document proving the transfer of money to the Crop Production Department's account.

2. Procedure and Timeframe for Resolution:

a) Within five (05) working days from the date of receiving the documents, the Crop Production Department determines the completeness of the documents according to the regulations and sends a request for supplementation if the documents are incomplete according to the regulations;

b) Within thirty (30) working days from the date the Crop Production Department receives complete application documents as prescribed, the Director of the Crop Production Department shall issue the Certificate of Eligibility for Plant Variety Rights Appraisal Activities to the organization meeting the conditions for such activities according to the model at Appendix 27 issued together with this Circular, record it in the National Register of Plant Variety Rights Appraisal; announce on the website of the Office for Protection of New Plant Varieties within five (05) working days from the date of signing the decision. In case of refusal, a written notification must be issued, clearly stating the reasons.

Article 35. Recording of Changes in Information of Plant Variety Rights Appraisal Organizations

1. An appraisal organization requesting changes in its name, address, or list of appraisers shall submit one (01) set of application documents to the Crop Production Department. The application documents include:

a) A request form for recording changes in information about the Appraisal Organization according to the model at Appendix 28 of this Circular;

b) A certified copy of the business registration certificate/scientific and technological activity registration certificate that has been amended of the appraisal organization;

c) Decision on recruitment or termination of labor contracts with members in the list of appraisers of the organization;

d) A certified copy of the receipt for fees and charges or a faxed document proving payment into the account of the Crop Production Department.

2. The procedure and time limit for processing applications for changes in information about plant variety rights appraisal organizations shall be conducted similarly to the procedures prescribed in Clause 2, Article 28 of this Circular.

Article 36. Removal of Names of Plant Variety Rights Appraisal Organizations

1. An appraisal organization will have its name removed in the following cases:

a) The appraisal organization violates the provisions stipulated in Article 52 of Decree No. 105/2006/ND-CP, and the competent state agency proposes removal of its name as a penalty;

b) There is evidence confirming that the Certificate of Eligibility for Plant Variety Rights Appraisal Activities was issued contrary to regulations, and the organization holding the Certificate does not meet the requirements stipulated in Clause 10, Article 1 of Decree No. 119/2010/ND-CP;

c) The appraisal organization abandons or fails to conduct appraisal activities.

2. Procedures for Removing the Name of an Appraisal Organization When there is a basis for removing the name of an appraisal organization as prescribed in Clause 1 of this Article, the Crop Production Department shall carry out the following procedures:

a) The Director of the Crop Production Department signs the decision to remove the name of the Plant Variety Rights Appraisal Organization;

b) Remove the name from the National Register of Plant Variety Rights Appraisal.

c) Announce on the website of the National Plant Variety Protection Office within five (05) working days from the date of signing the decision.

Chapter V

IMPLEMENTING PROVISIONS

Article 37. Implementation clauses

1. This Circular takes effect from April 13, 2013.

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

3. During implementation, if there are difficulties or obstacles, related organizations and individuals should report them in writing to the Ministry of Agriculture and Rural Development (Crop Production Department) for prompt resolution./.