DECREE NO. 88/2010/ND-CP provides detailed regulations and guidance on implementing certain provisions of the Intellectual Property Law and the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law concerning rights to plant varieties.

DECREE

Detailed regulations and guidance on implementation of certain provisions of the Intellectual Property Law andLaw amending and supplementing

amending certain provisions of the Intellectual Property Law concerning rights to plant varieties

_____________________________

THE GOVERNMENT

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

Based on the Intellectual Property Law dated November 29, 2005; the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law dated June 19, 2009;

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

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed regulations and guidance on implementation of certain provisions of the Intellectual Property Law and the Law amending and supplementing certain provisions of the Intellectual Property Law concerning rights to plant varieties, including: responsibilities for state management of rights to plant varieties; procedures for establishing rights to plant varieties; rights and obligations of holders of plant variety protection certificates and authors of plant varieties; transfer and assignment of rights to protected plant varieties; representation of rights to plant varieties.

Article 2. Applicability

This Decree 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 Decree, the following terms are understood as follows:

1. The applicant is an organization or individual having the right to submit an application for registration of protection of rights to plant varieties in accordance with Clause 2, Article 164 of the Intellectual Property Law.

2. The applicant is the applicant or the lawful representative of the applicant;

3. The holder of a plant variety protection certificate is an organization or individual granted a certificate protecting rights to plant varieties;

4. The author of a plant variety is the person directly selecting or discovering and developing a new plant variety; if two or more persons together directly select or discover and develop a new plant variety, they are joint authors;

5. The plant variety protection agency is the Plant Variety Protection Office located at the Ministry of Agriculture and Rural Development;

6. A country that has concluded an agreement with Vietnam on protection of rights to plant varieties is a member of the International Convention for the Protection of New Varieties of Plants (UPOV) or a country that has concluded a bilateral agreement with Vietnam on protection of rights to plant varieties;

7. Discovery and development of a new plant variety:

a) Discovery of a new plant variety is the activity of selecting natural variations;

b) Development of a new plant variety is the process of propagating and evaluating such natural variations;

8. The detailed description of a plant variety (referred to as the Plant Variety Description) is a document reflecting the characteristics of the plant variety according to the technical examination standards for distinctness, uniformity, stability, and confirmed by the plant variety protection agency. The Plant Variety Description is considered published when it is made available to the public in forms such as scientific reports, newsletters, newspapers, magazines, or other publications.

Article 4. Responsibilities of Ministries and ministerial-level agencies regarding protection of rights to plant varieties

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

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

b) Issuing new, reissuing, revoking, suspending, or canceling plant variety protection certificates;

c) Publishing lists of plant species eligible for protection; technical examination standards for plant varieties;

d) Defining the organizational structure, functions, tasks, and powers of the plant variety protection agency; appointing and managing the activities of organizations and individuals conducting technical examinations;

đ) Organizing propaganda, education, and dissemination of laws on protection of rights to plant varieties;

e) Inspecting, auditing, and handling administrative violations in the implementation of protection of rights to plant varieties;

g) International cooperation on protection of rights to plant varieties;

h) Managing activities related to representation of rights to plant varieties; recording and removing names of service organizations representing rights to plant varieties; issuing and revoking Certificates of Practice in Services Representing Rights to Plant Varieties;

i) Organizing information and statistical activities on protection of rights to plant varieties;

k) Issuing forms related to protection of rights to plant varieties;

2. The Ministry of Finance shall take the lead and coordinate with the Ministry of Agriculture and Rural Development to guide the collection of fees and charges; manage and use fees and charges for protection of rights to plant varieties.

3. The Ministry of Science and Technology and other ministries, ministerial-level agencies, and government agencies within their assigned tasks and powers shall be responsible for coordinating with the Ministry of Agriculture and Rural Development in state management of protection of rights to plant varieties.

Article 5. Responsibilities of the People's Committee of provinces and centrally governed cities for protecting rights to plant varieties

1. Implement policies and laws on protecting rights to plant varieties

2. Organize propaganda and dissemination of laws on protecting rights to plant varieties.

3. Inspect, audit, and handle administrative violations in the implementation of protection of rights to plant varieties.

4. Direct the People's Committees of districts, towns, counties, and cities under provinces to enforce state management measures for protecting rights to plant varieties at local levels.

Chapter II

PROCEDURES FOR ESTABLISHING RIGHTS TO PLANT VARIETIES

Article 6. Registration for protection of rights to plant varieties that have been selected or discovered and developed entirely with state budget funds

1. Plant varieties that have been selected or discovered and developed entirely with state budget funds shall be granted ownership rights by the State to the organization directly selecting or discovering and developing such plant varieties; it shall be the owner of the registration application for protection of rights to plant varieties and shall exercise the rights of the owner of the protected intellectual property as stipulated in Article 186 of the Intellectual Property Law.

2. Plant varieties that have been selected or discovered and developed with multiple sources of funding, including part from the state budget, shall be granted ownership rights by the State to the organization directly using state funds to participate in selecting or discovering and developing such plant varieties; it shall exercise the right to submit an application for protection corresponding to the proportion of state investment.

Article 7. Responsibilities of the applicant and representative of the applicant

1. The applicant has the responsibility to ensure the truthfulness of all information and documents provided to the plant variety protection authority during the process of registering protection of rights to plant varieties:

a) All transaction documents must be self-certified by the applicant's signature or that of their representative, and stamped with the organization's confirmation seal (if applicable);

b) Any Vietnamese translations of foreign language documents must be accurate translations from the original texts;

2. The applicant shall bear responsibility for all consequences and obligations arising from actions taken by their representative in transactions with the plant variety protection authority.

3. The representative of the applicant shall be responsible to the applicant for all consequences resulting from false declarations or provision of untruthful information in transactions with the plant variety protection authority, and shall compensate for any damages caused.

Article 8. Application for registration of protection of rights to plant varieties

1. The application for registration of protection of rights to plant varieties, as prescribed in Article 174 of the Intellectual Property Law, shall be prepared in two copies and submitted to the plant variety protection authority.

2. For organizations and individuals from countries that have signed agreements with Vietnam regarding the protection of rights to plant varieties as stipulated in Clause 18, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law but without a residential address or production base in Vietnam, in addition to the documents prescribed in Clauses 1, 2, and 3 of Article 174 of the Intellectual Property Law, they must provide necessary documents sufficient to confirm nationality or headquarters.

3. In cases where the application is from organizations and individuals not from countries that have signed agreements with Vietnam regarding the protection of rights to plant varieties, there must be documentation proving a lawful registered address or headquarters in a country that has signed an agreement with Vietnam regarding the protection of rights to plant varieties.

Article 9. Procedures for Submitting Applications to Claim Priority Rights

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

1. Register the request to claim priority rights in the application form for registration of protection according to the prescribed model;

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

3. Within ninety (90) days from the date of filing the application for registration of protection, the applicant must provide the following documents:

a) A certified copy of the application or the first applications with confirmation from the authority that received the previous application for registration of protection;

b) Evidence confirming that the two applications are for the same variety: variety description, photographs, other related documents (if available);

c) A valid copy of the transfer, inheritance, or succession document of the priority right, if such right is derived from another person;

Article 10. Acceptance of Applications for Registration of Protection

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

a) Directly from the applicant;

b) Through postal service. In cases where the application is sent through postal service, the filing date is determined based on the postmark date of submission;

c) Through information technology networks.

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

3. The Ministry of Agriculture and Rural Development guides the acceptance of applications, amendments, supplements, assignment of application submission rights, and assignment of applications for registration of plant variety protection.

Article 11. Formal Examination of Applications

1. Formal examination of applications includes the following contents:

a) Checking the completeness and validity of the application;

b) Checking the accompanying documents according to Article 174 of the Intellectual Property Law and Articles 6, 7, 8, and 9 of this Decree.

2. An application that is not valid in form is an application that does not meet one of the following requirements:

a) For applications not claiming priority rights: missing one of the documents specified in Clause 1, Article 174 of the Intellectual Property Law. For applications claiming priority rights: missing one of the documents specified in Clause 1, Article 174 of the Intellectual Property Law or missing one of the procedures specified in Article 9 of this Decree;

b) Documents in the application are not in the prescribed format or lack information required in the registration form;

c) Documents specified in Clause 2, Article 174 of the Intellectual Property Law have not been translated into Vietnamese;

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

đ) Valid copies of relevant documents;

e) The application is submitted by someone without the right to submit it; in cases where the registration right belongs to multiple organizations or individuals, all such organizations or individuals must agree;

3. Handling of Invalid Applications:

a) For applications falling under point b, Clause 2, Article 176 of the Intellectual Property Law and point e, Clause 1 of this Article, the plant variety protection authority rejects the application for registration of protection and notifies the applicant in writing;

b) For applications falling under points a, b, c, d, đ, Clause 1 of this Article, the plant variety protection authority handles them according to the provisions of points b, c, Clause 3, Article 176 of the Intellectual Property Law;

c) The thirty (30)-day period specified in point b, Clause 3, Article 176 of the Intellectual Property Law is determined based on the postmark date.

Article 12. Review of the Content of the Application

The review of the content of the application for plant variety protection registration as stipulated in Article 178 of the Intellectual Property Law includes:

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

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

3. Reviewing the results of technical trials (DUS trials) in accordance with the provisions of Article 19 of this Decree).

Article 13. Review of the Name of the Plant Variety

1. The plant variety protection authority shall review the suitability of the proposed name of the plant variety compared to the names of other recognized plant varieties of the same genus or closely related genera in Vietnam or any country that has concluded agreements with Vietnam on the protection of plant variety rights as provided for in Clause 20, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law.

2. In cases where the proposed name of the plant variety does not meet the requirements, the plant variety protection authority shall notify the applicant to change the name of the plant variety in accordance with the regulations. Within thirty (30) days from the date of receipt of the notification from the plant variety protection authority, the applicant must propose a new suitable name for the plant variety in accordance with the regulations. If the applicant fails to propose a new suitable name within the above period, the plant variety protection authority may reject the application.

3. If the applicant wishes to change the name of the plant variety during the period from submission of the application to before issuance of the protection certificate, the applicant must request a name change simultaneously with proposing a new name for the registered plant variety and pay the prescribed fee.

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

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

Article 14. Review of Novelty

1. The review of the novelty of the registered plant variety includes the following contents:

a) Reviewing the information in the application form;

b) Handling feedback and complaints (if any) regarding the novelty of the registered plant variety after the application is published.

2. A plant variety does not lose its novelty if, within one year prior to the filing date, the applicant or a person authorized by the applicant transfers the propagation material of the registered plant variety for trial testing or experimental production in Vietnam for the purpose of recognizing the plant variety in accordance with the regulations.

Article 15. Forms of Technical Trials

1. Technical trials are conducted in one of the following four forms:

a) Technical trials conducted by organizations or individuals designated by the Ministry of Agriculture and Rural Development;

b) Technical trials conducted by the applicant themselves;

c) Using existing technical trial results provided by the applicant;

d) Contracting with organizations or individuals of UPOV member countries to conduct technical trials or to purchase existing technical trial results.

2. The plant variety protection authority bases the selection of one of the technical trial forms specified in Clause 1 of this Article on the application and actual conditions.

3. In cases where technical trials are conducted on Vietnamese territory, they must follow the DUS trial regulations issued by the Ministry of Agriculture and Rural Development; if such regulations have not been issued, they must follow the UPOV trial regulations.

4. In cases under point a of Clause 1 of this Article, if the trial results are unsatisfactory, the applicant has the right to request the organization or individual who previously conducted the trial, or another designated organization or individual to conduct the trial again and must pay the prescribed re-trial fee. The request for re-trial must be made in writing, clearly stating the reasons and evidence supporting the request for re-trial.

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

Article 16. Conditions for organizations and individuals conducting technical trials to be designated

a) Having the function of conducting trials or researching and breeding plant varieties;

b) Having suitable locations and land areas to arrange experiments according to the requirements of the plant species being tested;

c) Having specialized equipment or having contracts with other organizations or individuals to analyze and evaluate indicators according to the requirements of the plant species being tested;

d) Having at least one technical staff member with a bachelor's degree in a relevant field and a certificate in technical trial training or having directly worked in technical trials for at least two years;

đ) Possessing a set of standard samples of widely known plant varieties of the species being tested;

2. The Ministry of Agriculture and Rural Development shall provide detailed guidance on the conditions for organizations and individuals conducting technical trials to be designated.

Article 17. Conditions for technical trials conducted by the applicant

1. Applicants who wish to conduct technical trials on registered plant varieties for protection in Vietnam must meet the following conditions:

a) Having suitable locations and land areas to arrange experiments according to the requirements of the plant variety being tested;

b) Having specialized equipment or having contracts with other organizations or individuals to analyze and evaluate indicators according to the requirements of the plant variety being tested;

c) Having appropriate control varieties that will be planted alongside the test variety in the technical trial experiment;

d) Having or contracting with at least one technical staff member with a bachelor's degree in a relevant field and a certificate in technical trial training or having directly worked in technical trials for at least two years.

2. The Ministry of Agriculture and Rural Development shall provide detailed guidance on the conditions for applicants to conduct their own technical trials and on-site inspections of technical trial experiments conducted by applicants.

Article 18. Submission of Seed Samples

1. The plant variety protection authority requires applicants falling under the category mentioned in point a, Clause 1, Article 15 of this Decree to submit seed samples to the technical trial agency at least twenty (20) days before the planting season.

2. Applicants falling under the categories mentioned in points b, c, and d, Clause 1, Article 15 of this Decree are not required to submit seed samples to the technical trial agency but must submit them to the seed sample storage agency as stipulated in Clause 3 of this Article.

3. The storage of seed samples of registered varieties mentioned in Clause 2 of this Article shall be carried out as follows:

a) Seed samples in the form of seeds shall be stored at the seed sample storage agency designated by the Ministry of Agriculture and Rural Development;

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

4. Upon receiving seed samples, the technical trial agency or the storage agency shall inspect the quality of the seed samples, issue a confirmation if the seed samples meet the requirements. In cases where the seed samples do not meet the requirements, the technical trial agency or the seed sample storage agency has the right to request the applicant to resubmit the seed samples.

5. Within twenty (20) days from the date of receipt of seed samples, the receiving agency must conduct quality testing and notify the results to the applicant. If the seed samples do not meet the standards according to the trial regulations, the receiving agency shall require the applicant to resubmit the seed samples. Within thirty (30) days from the date of notification, the applicant must provide seed samples meeting the standards.

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

7. The Ministry of Agriculture and Rural Development shall provide detailed guidance on the deadlines for submitting seed samples, managing and using plant variety seed samples.

Article 19. Examination of Technical Testing Results

1. The technical testing result report shall include a description of the variety prepared according to the model.

2. Within forty-five (45) days from the date of completion of the technical testing, the technical testing agency or the applicant, as provided for in point b, Clause 1, Article 15 of this Decree, shall submit the technical testing result report to the plant variety protection agency.

3. The plant variety protection agency shall examine the technical testing results in accordance with Clause 3, Article 178 of the Intellectual Property Law. If necessary, the Ministry of Agriculture and Rural Development shall establish a specialized council to examine the technical testing results within sixty (60) days from the date of establishment of the specialized council.

Article 20. Granting of Plant Variety Protection Certificate

1. The Minister of Agriculture and Rural Development shall decide to grant a plant variety protection certificate for registered varieties that meet the conditions stipulated in Articles 159, 161, and 162 of the Intellectual Property Law and points 19 and 20 of Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law. Within thirty (30) days from the date of signing, the decision on granting the plant variety protection certificate must be published in the specialized journal on plant varieties of the Ministry of Agriculture and Rural Development.

2. Thirty (30) days from the date the decision on granting the plant variety protection certificate is published in the specialized journal on plant varieties, if no objections or complaints in writing about the issuance of the certificate are received, the plant variety protection agency shall issue the plant variety protection certificate to the applicant and record it in the national register of protected plant varieties.

3. Within thirty (30) days from the date the decision on granting the plant variety protection certificate is published in the specialized journal on plant varieties, if the plant variety protection agency receives objections or complaints in writing about the issuance of the plant variety protection certificate, it must handle them promptly in accordance with Article 184 of the Intellectual Property Law.

4. Only one (01) copy of the plant variety protection certificate shall be issued.

5. The applicant must pay the fees and charges for issuing the plant variety protection certificate as prescribed. In case the certificate is torn, damaged, lost, or changes ownership, the owner of the plant variety protection certificate has the right to request reissue or replacement and must pay the fee as prescribed.

6. The Ministry of Agriculture and Rural Development shall provide detailed guidance on procedures for replacing and reissuing plant variety protection certificates.

Article 21. Suspension and Restoration of Effectiveness of Plant Variety Protection Certificate

1. In cases where the plant variety protection certificate is suspended as provided for in point a, Clause 1, Article 170 of the Intellectual Property Law, the plant variety protection agency shall carry out the suspension procedure as follows:

a) Within thirty (30) days from the date of receipt of a request to suspend the effectiveness of the plant variety protection certificate from any third party, the plant variety protection agency must complete the verification of information stated in the request and notify the holder of the plant variety protection certificate. The request to suspend the effectiveness of the plant variety protection certificate must be in writing accompanied by evidence proving that the plant variety does not meet uniformity and stability at the time of issuance of the certificate and payment of the testing fee (as provided for in point c, Clause 1 of this Article).

b) Thirty (30) days from the date of receipt of the notification from the plant variety protection agency regarding the feedback provided for in point a, Clause 1 of this Article, if the holder of the plant variety protection certificate does not file an objection, the Ministry of Agriculture and Rural Development shall issue a decision to suspend the effectiveness of the plant variety protection certificate. The suspension takes effect from the date of signing the decision to suspend the effectiveness of the certificate and is published in the specialized journal on plant varieties.

c) If the holder of the plant variety protection certificate files an objection, the plant variety protection agency shall require the holder to conduct the retesting procedures as provided for in Clause 4, Article 15 of this Decree. If the retesting results conducted by the testing agency as provided for in point a, Clause 1, Article 15 of this Decree show that the plant variety does not meet uniformity or stability at the time of issuance, the plant variety protection agency shall proceed with the suspension procedures as provided for in point b of this clause and refund the retesting fee to the person requesting the suspension of the certificate's effectiveness.

2. Based on the retesting results, the Ministry of Agriculture and Rural Development shall decide whether to restore or not restore the effectiveness of the plant variety protection certificate as provided for in point a, Clause 1, Article 170 of the Intellectual Property Law.

Article 22. National Register Book

1. Protected plant varieties shall be managed in the National Register Book.

2. The plant variety protection authority shall be responsible for establishing and maintaining the National Register Book on protected plant varieties. All information about plant variety protection certificates and changes during the validity period of such certificates shall be recorded in the National Register Book on protected plant varieties.

3. Any organization or individual has the right to request the plant variety protection authority to provide information from the National Register Book on protected plant varieties and must pay fees and charges as prescribed.

Chapter III

RIGHTS AND OBLIGATIONS OF THE HOLDER OF THE PROTECTION CERTIFICATE

Article 23. Expansion of rights of the holder of the protection certificate

Methods of influencing protected varieties (original varieties) to create new plant varieties with distinct characteristics from the original varieties as stipulated in Point 1, Clause 23, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law include: gene transfer, backcrossing, natural or artificial mutation selection, or somatic mutation, and selection of mutant individuals from the original variety population.

Article 24. Obligations of the holder of the plant variety protection certificate

According to Clause 1, Article 191 of the Intellectual Property Law, the holder of the protection certificate has the following obligations:

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

a) As agreed between the holder of the protection certificate and the author of the plant variety;

b) In case of no agreement, the amount of remuneration paid to the author is thirty-five percent (35%) of the amount received under the contract for transferring or assigning rights to the plant variety after paying taxes as prescribed. If the holder of the protection certificate uses the protected plant variety for production and business, they must pay ten percent (10%) of the profit earned by the holder of the protection certificate, except when the holder of the protection certificate is the assignee;

c) For plant varieties created or discovered and developed using state budget funds, the holder of the protection certificate pays remuneration to the author according to internal regulations. In the absence of such provisions in internal regulations, the provisions of Point b, Clause 1 of this Article shall apply;

d) In cases where the plant variety is created by joint authors, the remuneration specified in Clause 1 of this Article is for all joint authors; the joint authors themselves negotiate the distribution of the remuneration paid by the holder of the protection certificate;

e) The obligation to pay remuneration to the author of the plant variety exists throughout the protection period of that plant variety, except in cases where the protected plant variety has been assigned;

2. Pay maintenance fees for the validity of the plant variety protection certificate to the plant variety protection authority within three (03) months from the date of issuance of the protection certificate for the first year of validity and the first month of each subsequent year of validity.

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

Chapter IV

TRANSFER AND ASSIGNMENT OF RIGHTS TO PROTECTED PLANT VARIETIES

Article 25. Contents of contracts for the transfer and assignment of rights to protected plant varieties

1. The contents of a contract for the transfer of the right to use a protected plant variety include:

a) Full name and address of the transferring party and the receiving party;

b) Basis for the transfer of the right to use;

c) Scope of the transfer, including limits on the right to use and territorial limits;

d) Duration of the contract;

đ) Price for the transfer of the right to use;

e) Rights and obligations of the transferring party and the receiving party;

g) Liability for breach of contract.

2. The contents of a contract for the assignment of rights to a protected plant variety include:

a) Full name and address of the assigning party and the receiving party;

b) Basis for the assignment;

c) Content of the assignment of rights to the plant variety;

d) Price for the assignment and payment method;

đ) Rights and obligations of the assigning party and the receiving party;

e) Liability for breach of contract.

1. After completing the contract for the assignment of rights to a protected plant variety in accordance with the provisions of the law, the assigning party must submit the registration application for the assignment contract to the plant variety protection authority and pay the prescribed fee.

2. The registration application for the assignment contract of rights to a protected plant variety includes:

a) Two copies of the Registration Form according to the model;

b) Two copies of the contract (original or certified copy), the contract made in Vietnamese or must be translated into Vietnamese, each page must have signatures of the parties or a stamp of authentication;

c) Original or certified copy of the plant variety protection certificate;

d) Written consent of co-owners, in cases where the plant variety is jointly owned;

đ) Payment receipt;

e) In cases where the plant variety is created using state budget funds, additional documents proving that the assignment is carried out in accordance with Clause 1, Article 27 of this Decree must be supplemented.

3. The plant variety protection authority shall examine the registration application within thirty (30) days from the date of receipt to determine the validity of the application.

4. If the registration application is valid and free of errors, the Minister of Agriculture and Rural Development shall decide to reissue the plant variety protection certificate recording the new owner as the transferee; record the assignment of ownership rights to the plant variety protection certificate in the National Register of Protected Plant Varieties and publish it in a specialized journal on plant varieties.

5. If the registration application is invalid or contains errors, the plant variety protection authority shall notify the deficiencies in the application clearly, set a deadline of thirty (30) days from the date of issuance of the notification for the applicant to correct the deficiencies. If the applicant does not correct the deficiencies after the deadline, the examination of the registration application will be terminated.

Article 27. Transfer and assignment of rights to plant varieties selected or discovered and developed using state budget funds

1. The assignment of rights to plant varieties selected or discovered and developed using state budget funds shall be carried out in accordance with the provisions of the Law on Technology Transfer and guiding documents for the implementation of the Law on Technology Transfer.

2. Management and use of proceeds from the transfer and assignment of rights to plant varieties selected or discovered and developed using state budget funds, after paying taxes as prescribed, shall be carried out as follows:

a) The holder of the protection certificate shall specify and publicly announce the remuneration paid to the breeder of the plant variety in the internal regulations; if there is no provision in the internal regulations, then apply as provided in Point b, Clause 1, Article 24 of this Decree; the remaining amount shall be used 50% for scientific research and technology development investment; 50% for welfare and incentive funds of the unit or department directly creating the protected plant variety.

b) In cases where plant varieties are selected or discovered and developed using multiple sources of funding, including a portion from state budget funds, management and use of the proceeds corresponding to the proportion of state contribution shall be carried out as provided in Point a, Clause 2 of this Article.

Article 28. Authority to Order Compulsory Transfer of Plant Variety Rights

1. The Ministry of Agriculture and Rural Development decides on compulsory transfer of rights to use plant varieties that are protected under agricultural, forestry, and aquaculture crops.

2. The Ministry of Agriculture and Rural Development shall take the lead and coordinate with the Ministry of Health to decide on compulsory transfer of rights to use plant varieties that are protected for medicinal purposes.

Article 29. Cases of Compulsory Transfer of Rights to Use Protected Plant Varieties to Meet Urgent Social Needs

1. Cases of compulsory transfer of rights to use protected plant varieties to meet urgent social needs as prescribed in point a, Clause 1, Article 195 of the Intellectual Property Law include: addressing emergency situations such as natural disasters, epidemics, wars, and widespread environmental pollution.

2. The Ministry of Agriculture and Rural Development publicly announces the demand for seeds, the name of the protected plant variety, purpose, quantity of seeds needed, scope, time frame for fulfilling the transfer purpose, and deadline for submitting registration applications.

Article 30. Principles for Determining Compensation Value for Compulsory Transfer of Rights to Use Protected Plant Varieties

Principles for determining compensation value for compulsory transfer of rights to use protected plant varieties are stipulated as follows:

1. The transferring party and the receiving party negotiate among themselves;

2. In cases where the parties cannot reach an agreement, the compensation value is determined as follows:

a) The value of the most recent contract for transferring the same variety to another entity at a corresponding time and quantity as the compulsory transfer;

b) The profit value that the owner of the protected plant variety would have earned from using the variety for the corresponding quantity and duration of the compulsory transfer;

c) If there is no basis for determination as prescribed in points a and b of this clause, the compensation value is considered based on the actual costs incurred in producing the protected plant variety.

3. The Ministry of Agriculture and Rural Development shall request an appraisal organization to determine the compensation value or take the lead and coordinate with relevant ministries and sectors to establish a committee to review the specific compensation value for cases stipulated in Clause 2 of this Article.

1. Organizations and individuals who need to use plant varieties may submit an application to receive the compulsory transfer of rights to use plant varieties as prescribed in point a, Clause 1, Article 195 of the Intellectual Property Law. Organizations and individuals who fail to reach an agreement on the use of plant varieties or are hindered in competition may submit an application to receive the compulsory transfer of rights to use plant varieties as prescribed in points b and c, Clause 1, Article 195 of the Intellectual Property Law.

2. Documents for transferring rights to use plant varieties include:

a) Two copies of the Application Form for Compulsory Transfer of Rights to Use Plant Varieties, specifying the scope and period of compulsory transfer;

b) Certificate of Registration for Production and Business of Plant Varieties;

c) Financial capability report to fulfill compensation obligations to the transferring party as prescribed;

d) Documentation proving that the decision to compel the transfer of rights to use plant varieties is justified according to the law, for cases prescribed in points b and c, Clause 1, Article 195 of the Intellectual Property Law;

đ) Power of attorney if the application is submitted through a representative;

e) Payment receipt.

3. Procedures for Compulsory Transfer of Rights to Use Protected Plant Varieties as Prescribed in Point a, Clause 1, Article 195 of the Intellectual Property Law:

a) The plant variety protection authority receives the documents as prescribed in Clause 2 of this Article;

b) Within fifteen (15) days from the date of receiving valid documents, the Ministry of Agriculture and Rural Development issues a decision on compulsory transfer of rights to use plant varieties and notifies the decision to both the transferring and receiving parties for implementation.

4. Procedures for Compulsory Transfer of Rights to Use Protected Plant Varieties as Prescribed in Points b and c, Clause 1, Article 195 of the Intellectual Property Law:

a) The plant variety protection authority receives the documents as prescribed in Clause 2 of this Article;

b) Within fifteen (15) days from the date of receiving valid documents, the Ministry of Agriculture and Rural Development informs the holder of exclusive rights to use plant varieties about the request for compulsory transfer of rights to use plant varieties;

c) Within thirty (30) days from the date of notification, the holder of exclusive rights to use plant varieties must respond in writing;

d) If the holder of exclusive rights to use plant varieties disagrees with the request for compulsory transfer of rights to use plant varieties, within fifteen (15) days, the Ministry of Agriculture and Rural Development responds in writing;

đ) The Ministry of Agriculture and Rural Development issues a decision on compulsory transfer of rights to use plant varieties if the request for compulsory transfer of rights to use plant varieties complies with the regulations and notifies the decision to both the transferring and receiving parties for implementation.

e) If the request for a decision to transfer rights to use plant varieties lacks a justified basis as prescribed in points b and c, Clause 1, Article 195 of the Intellectual Property Law, a refusal notice is issued, clearly stating the reasons for refusal.

Article 32. Amending, suspending, and revoking the effect of compulsory transfer decisions for protected plant variety rights

1. In accordance with Clause 2 of Article 197 of the Intellectual Property Law, the holder of exclusive rights to use a protected plant variety has the right to request the competent authority specified in Article 29 of this Decree to amend, suspend, or revoke the effect of the compulsory transfer decision for the protected plant variety rights and must pay fees and charges as prescribed.

2. The compulsory transfer decision for plant variety rights:

a) Shall be amended when the conditions leading to the issuance of the compulsory transfer decision have changed;

b) Shall be suspended when the conditions leading to the issuance of the compulsory transfer decision no longer exist;

c) Shall be revoked when there is evidence proving that the compulsory transfer decision is contrary to the law.

3. Documents required for requesting to amend, suspend, or revoke the effect of the compulsory transfer decision for plant variety rights include the following:

a) A document requesting to amend the transfer price, quantity of seeds, scope, and duration of transfer; to suspend or revoke the effect of the compulsory transfer decision for protected plant variety rights;

b) Evidence proving that amending, revoking, or suspending the effect of the compulsory transfer decision is based on Clause 2 of this Article and does not cause damage to the recipient of the compulsory transfer;

c) Power of attorney in cases where the request is submitted through a representative;

d) Proof of payment of fees.

4. Responsibilities of the state agency authorized to handle compulsory transfer of protected plant variety rights:

a) To accept the documents specified in Clause 3 of this Article;

b) Within fifteen (15) days from the date of receiving valid documents, organize the examination and issue a decision to amend, suspend, or revoke the effect of the compulsory transfer decision for plant variety rights;

c) If the request to amend, suspend, or revoke the compulsory transfer decision for plant variety rights lacks credible grounds as stipulated in Article 195 of the Intellectual Property Law, issue a notification of refusal, clearly stating the reasons for refusal;

d) Notify the decision to the compulsory transferor and the transferee to implement it.

Chapter V

REPRESENTATION OF RIGHTS FOR PLANT VARIETIES

Article 33. Representation Services for Plant Variety Rights

Representation services for plant variety rights include:

1. Representing organizations and individuals before state agencies regarding the establishment and enforcement of plant variety rights;

2. Advising on issues related to procedures for establishing and enforcing plant variety rights;

3. Other services related to procedures for establishing and enforcing plant variety rights.

Article 34. Scope of Representation Rights for Plant Variety Rights

1. Organizations providing representation services for plant variety rights may only perform services within the scope of authorization and may delegate such services to other representation service organizations for plant variety rights if they obtain written consent from the principal;

2. Organizations providing representation services for plant variety rights have the right to cease representation activities for plant variety rights if they have legally transferred incomplete representation work to another representation service organization for plant variety rights;

3. Representation for plant variety rights shall not engage in the following activities:

a) Simultaneously representing conflicting parties in disputes over plant variety rights;

b) Withdrawing applications for protection certificates, declaring abandonment of protection, or withdrawing complaints about the establishment of plant variety rights without permission from the represented party;

c) Deceiving or coercing clients in signing and implementing representation service contracts for plant variety rights;

d) Using or disclosing information related to unannounced protection application forms by the plant variety protection agency.

Article 35. Responsibilities of representatives for plant variety rights

1. Representatives for plant variety rights shall have the following responsibilities:

a) Clearly notify all fees, charges related to procedures for establishing and enforcing plant variety rights; service costs according to the registered cost schedule at the plant variety protection agency;

b) Maintain confidentiality of information and documents entrusted in relation to the cases they represent;

c) Provide truthful and complete notifications and requests from competent state agencies regarding the establishment and enforcement of plant variety rights; promptly deliver certificates of protection and other decisions to the represented party;

d) Protect the legitimate rights and interests of the represented party by promptly responding to requests from competent state agencies regarding the establishment and enforcement of plant variety rights for the represented party;

đ) Notify competent state agencies responsible for establishing and enforcing plant variety rights of any changes in the name, address, and other information of the represented party; information on changes in the name, address, and representative of the representative party;

2. Service organizations representing plant variety rights must bear civil liability for individuals performing representation activities on behalf of the organization;

3. Service organizations representing plant variety rights and individuals registering to practice plant variety rights representation services must pay fees and charges as prescribed;

Article 36. Conditions for Issuing a Professional Practice Certificate for Plant Variety Rights Representation Services

1. The Ministry of Agriculture and Rural Development shall issue a professional practice certificate for plant variety rights representation services to individuals meeting the conditions stipulated in Point 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law;

2. An individual shall be deemed to have graduated from a legal training program on plant variety rights if they have a graduation thesis on a topic related to plant variety rights;

3. The Ministry of Agriculture and Rural Development shall specify the training program on plant variety rights law and the examination of professional representation skills for plant variety rights;

Article 37. Recording and Removing Names of Service Organizations Representing Plant Variety Rights

1. Organizations and individuals meeting the business and professional practice conditions for plant variety rights representation services stipulated in Points 2, 3, 4, and 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law shall be recorded in the National Register of Plant Variety Rights Representation and published in specialized journals on plant varieties;

2. Service organizations representing plant variety rights shall be removed from the National Register of Plant Variety Rights Representation and published in specialized journals on plant varieties in the following cases:

a) Ceasing to operate plant variety rights representation services;

b) No longer fully meeting the conditions stipulated in Points 2, 3, 4, and 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law;

c) Seriously violating the provisions of Clause 3, Article 34 and Article 35 of this Decree;

d) Committing serious misconduct during the provision of plant variety rights representation services causing damage to national and social interests;

đ) Exploiting the status of plant variety rights representation to engage in activities outside the scope of plant variety rights representation services as specified in Clause 1, Article 34 of this Decree;

3. Consideration of applications for re-recording service organizations representing plant variety rights in the National Register of Plant Variety Rights Representation after being removed according to Clause 2 of this Article shall only be conducted after a period of three (03) years from the date of removal;

4. The Ministry of Agriculture and Rural Development shall guide the implementation of recording, re-recording, and removing names of service organizations representing plant variety rights.

Article 38. Issuance and Revocation of Professional Practice Certificate for Plant Variety Rights Representation Services

1. The Professional Practice Certificate for Plant Variety Rights Representation Services shall be issued to individuals who meet the conditions stipulated in Point 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law upon their request after paying the prescribed fees and charges.

2. The holder of the Professional Practice Certificate for Plant Variety Rights Representation Services shall have their certificate revoked in any of the following cases:

a) Ceasing representation activities for plant variety rights;

b) No longer meeting the conditions stipulated in Point 5, Clause 21, Article 1 of the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law;

c) Seriously violating the provisions of Clause 3, Article 34 and Article 35 of this Decree;

d) Committing serious violations during the practice of representing plant variety rights, causing damage to the interests of the State and society;

đ) Exploiting the status of plant variety rights representation to engage in activities outside the scope of plant variety rights representation services as specified in Clause 1, Article 34 of this Decree;

3. A request for reissuance of the Professional Practice Certificate for Plant Variety Rights Representation Services, after it has been revoked pursuant to Clause 2 of this Article, may only be considered after a period of three (03) years from the date of revocation.

4. The Ministry of Agriculture and Rural Development shall provide guidance on the issuance and revocation of the Professional Practice Certificate for Plant Variety Rights Representation Services.

Chapter VI

IMPLEMENTING PROVISIONS

Article 39. Transitional Provisions

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

2. Applications for protection of plant varieties submitted from the effective date of this Decree shall be governed by the provisions of this Decree.

Article 40. Effective Date

This Decree takes effect from October 1, 2010 and replaces Decree No. 104/2006/NĐ-CP dated June 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law concerning rights to plant varieties.

Article 41. Implementation Clauses

Ministers, Heads of ministerial-level agencies, Heads of government agencies, Chairpersons of provincial and centrally-administered city People's Committees are responsible for implementing this Decree./.