Thông tư 03/2021/TT-BNNPTNT

CIRCULAR

AMENDMENTS TO SOME ARTICLES OF CIRCULAR NO. 16/2013/TT-BNNPTNT DATED FEBRUARY 28, 2013 OF THE MINISTER OF AGRICULTURE AND RURAL DEVELOPMENT ON PROTECTION OF PLANT VARIETY RIGHTS

Pursuant to the Government’s Decree No. 15/2017/ND-CP dated February 17, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Agriculture and Rural Development;

Pursuant to the Law on Intellectual Property dated November 29, 2005; Law on Amendments to the Law on Intellectual Property dated June 19, 2009;

Pursuant to the Law on Crop Production dated November 19, 2018;

Pursuant to the Government’s Decree No. 88/2010/ND-CP dated August 16, 2010 on elaboration of some Articles of the Law on Intellectual Property and Law on Amendments to some Articles of the Law on Intellectual Property regarding plant variety rights and the Government’s Decree No. 98/2011/ND-CP dated October 26, 2011 on amendments to some Articles of Decrees on agriculture;

Pursuant to the Government’s Decree No. 105/2006/ND-CP dated September 22, 2006 on elaboration of some Articles of the Law on Intellectual Property on protection of intellectual property rights and state management of intellectual property and Government’s Decree No. 119/2010/ND-CP dated December 30, 2010 on amendments to some Articles of the Decree No. 105/2006/ND-CP;

Pursuant to the Government’s Decree No. 94/2019/ND-CP dated December 13, 2019 on guidelines for some Articles of the Law on Crop Production regarding plant varieties and crop cultivation;

At the request of the Director General of the Department of Crop Production;

The Minister of Agriculture and Rural Development hereby promulgates a Circular on amendments to some Articles of the Circular No. 16/TT-BNNPTNT dated February 28, 2013 of the Minister of Agriculture and Rural Development on protection of plant variety rights.

Article 1. Amendments to some Articles of the Circular No. 16/TT-BNNPTNT dated February 28, 2013 of the Minister of Agriculture and Rural Development on protection of plant variety rights (hereinafter referred to as “the Circular No. 16/2013/TT-BNNPTNT”):

1. Article 1 is amended as follows:

“Article 1. Scope

This Circular elaborates on the establishment of plant variety rights and representation for plant variety rights; issuance and re-issuance of plant variety protection certificates; suspension, reinstatement and invalidation of plant variety protection certificates.”

2. Clause 2 of Article 4 is amended as follows:

 “2. The legal representative of the applicant shall follow the procedures for protection of plant varieties as prescribed by laws on authorization; the letter of authorization is made according to the form in Annex 1 to this Circular.”

3. Article 5 is amended as follows:

“Article 5. General provisions on completion of administrative procedures specified in this Decree

1. Submission of documents serving administrative procedures: depending on the capacity for receipt / result informing of the Department of Crop Production, organizations and individuals shall submit documents whether in person or by post or online (via the national single-window system, online public services, software, email or fax). To be specific:

a) If documents are submitted in person or by post, the documents must be originals or certified true copies or copies presented together with their originals for comparison; if documents are promulgated by organizations, their copies must bear the seals of such organizations;

b) If documents are submitted online, the documents must be scanned or photocopied from the originals. The documents must be declared and append digital signatures to the given electronic forms as specified in Clauses 1 and 2 Article 9 of the Government’s Decree No. 45/2020/ND-CP dated April 08, 2020 on administrative procedures by electronic means.

2. Number of documents: 01 set.

3. Time limit for notifying the adequacy of documents:

a) If documents are submitted in person, the Department of Crop Production shall inspect the documents and immediately notify their adequacy to the organization or individual;

b) If documents are submitted by post, within 03 working days from the receipt of the documents, the Department of Crop Production shall consider their adequacy. If the documents are inadequate as prescribed, it shall notify the organization/individual in writing;

c) If documents are submitted online, within 08 working hours from the receipt of the documents, the Department of Crop Production shall consider their adequacy. If the documents are inadequate as prescribed, it shall notify the organization/individual;

4. Methods for paying fees and charges for completing administrative procedures: organizations and individuals shall pay fees and charges in accordance with applicable regulations to the Department of Crop Production, whether in person or by another appropriate mean.

5. Methods for informing results: the Department of Crop Production shall inform results directly at the document receipt area or by post or online.

6. In case any regulations herein are contrary to the regulations laid down in Clauses 1 through 5 of this Article, the former shall prevail.

7. If the documents are those specified in Clause 2 Article 174 of the Law on Intellectual Property, they must be translated into Vietnamese language and notarized or verified by the registrant.

8. Organizations and individuals shall take legal responsibility for their submitted documents.”

4. Article 6 is amended as follows:

“Article 6. Well-known plant varieties and novelty of plant varieties

1. A plant variety is considered well-known in one of the following cases:

a) The plant variety of which the propagating material or harvested material is widely used on the Vietnam’s market or in any other country when the application for protection is submitted;

b) The plant variety is protected or recognized for circulation or recognized for privileged circulation, experimentally produced, officially recognized in Vietnam or included in the List of plant varieties permitted for production and trading in any other country;

c) The plant variety is the object in the applications for: protection of plant variety; recognition of circulation or recognition of privileged circulation; inclusion in the list of varieties in any other country, if these applications are not rejected.

2. Novelty of plant varieties

A plant variety is considered no longer novel after 12 months from the day on which it is permitted for production and trading in Vietnam. Plant varieties for production and trading comprise those which are officially recognized; those whose names are included in the list of plant varieties permitted for production and trading in Vietnam; those issued with the recognition decision or privileged circulation recognition; those whose circulation is self-declared and published on the website of the Department of Plant Production.”

5. Article 7 is amended as follows:

“Article 7. Templates for documents about protection of plant variety rights

1. Registration of the contract for transfer of plant variety rights, which is made according to the template in Annex II to this Circular.

2. Request for mandatory transfer of the right to use plant varieties, which is made according to the template in Annex III to this Circular.”

6. Article 8 is amended as follows:

“Article 8. Fees and charges for the protection of plant variety rights

1. Fees and charges for protection of plant variety rights shall comply with the regulations set out in the Circular No. 207/2016/TT-BTC dated November 09, 2016 of the Minister of Finance (hereinafter referred to as “the Circular No. 207/2016/TT-BTC”).

2. The time limit for paying the fee for validity extension shall comply with Clause 2 Article 24 of the Government’s Decree No. 88/2010/ND-CP dated August 16, 2010 (hereinafter referred to as “the Circular No. 88/2010/ND-CP”).

3. If the Circular No. 207/2016/TT-BTC is amended by or replaced with another legislative document, the new one shall prevail.”

7. Article 9 is amended as follows:

“Article 9. Receipt of applications and transfer of the right to submit applications for plant variety protection

1. An application for protection of plant variety rights is composed of:

a) An application form for plant variety protection, which is made according to the template in Annex IV to this Circular;

b) A declaration of the distinctness, uniformity and stability testing techniques (DUS testing)

- If the plant variety to be protected is of a type of plant for which the DUS testing guidelines, National technical regulation (QCVN) or National Standard (TCVN) on DUS testing of Vietnam/UPOV is available: the declaration mentioned in these documents shall be used;

- If the plant variety to be registered is not of a type of plant for which the DUS testing guidelines, QCVN or TCVN on DUS testing of Vietnam/UPOV is available: the declaration mentioned in Annex V to this Circular shall be used;

c) A letter of authorization, which is made using the template in Annex I to this Circular (if the application is submitted by a representative);

d) Photos of the sample variety: at least 03 9cm x 15cm color photos which show 3 distinct characteristics of the variety to be protected;

dd) Documents proving the right to register (contract for transfer of the right to use the plant variety, document proving that the applicant is a legal representative of the owner of the variety to be protected);

e) A document proving the priority, if the application has a claim for priority;

g) Documents evidencing payment of fees and charges.

2. The date of receiving an application for plant variety protection is the date on which an application containing all documents specified in Clause 1 of this Article is received by the Department of Crop Production.

3. The notice of acceptance of application for plant variety protection shall be issued using the template in Annex VI to this Circular.

4. Before the Department of Crop Production issues a decision to issue the plant variety protection certificate or notice of refusal to issue the plant variety protection certificate, the applicant is entitled to transfer the right to submit the application for plant variety protection to another person. The transferee shall submit a contract for transfer of the right to submit the application for plant variety protection to the Department of Crop Production.”

8. Article 10 is amended as follows:

“Article 10. Amendments to applications for plant variety protection

1. Before issuing the plant variety protection certificate, the applicant is entitled to amend the application for protection in any of the following cases:

a) The amendment does not change the nature of the application: a spelling error in the name or address of the applicant, owner or author of the plant variety or name of the plant variety;

b) There is a legal basis for change of the name or address of the applicant, owner or author of the plant variety;

c) Name or address of the applicant is changed at the owner's request (if the application is submitted by a representative); name or address of the owner or author of the plant variety is changed due to transfer of the application under a contract or through inheritance.

2. An application for amendment includes:

a) An application form for amendment to the application, which is made according to the template in Annex VII to this Circular;

b) A certified true copy of the transfer contract (in the case of transfer of the application for protection); or legal basis for change of the name or address of the applicant, owner or author of the plant variety;

c) A document proving the inheritance (certified by the variety owner), document proving the moral rights between the variety owner and the inheritor; death certificate or extract of death certificate of the variety owner (if any);

d) A letter of authorization, which is made using the template in Annex I to this Circular in the case of change of the representative.

3. Procedures and time for processing the application:

Within 15 working days from the receipt of a sufficient application, the Department of Crop Production shall appraise it. If the application is valid, the Department of Crop Production shall send a notice of acceptance of the application, return the result to the applicant and publish it on its web portal. If the application is invalid, the Department of Crop Production shall provide a written explanation to the applicant.

4. If any request for amendment to the application for plant variety protection is made in a case other than the case specified in Clause 1 of this Article, another application for plant variety protection shall be submitted.

9. Article 16 is amended as follows:

“Article 16. DUS testing by the applicant

1. In addition to the documents specified in Article 174 of the Law on Intellectual Property, the applicant that applies for DUS self-testing on their variety to be protected shall submit the following documents:

a) A detailed list of conditions for self-testing, which is made according the template in Annex VIII to this Circular and in conformity with the specific requirements laid down in the DUS testing guidelines, QCVN or TCVN on DUS testing of Vietnam/UPOV applicable to each type of plant;

b) A DUS testing plan, which is formulated according to the template in Annex IX to this Circular.

2. The Department of Crop Production shall consider the application for DUS self-testing. The applicant shall contact the DUS testing organization recognized for cooperation in DUS testing inspection and assessment. For the plant for which a DUS testing organization recognized for cooperation in testing is not available, the Department of Crop Production shall establish an expert team in charge of inspection during the testing. The expert team is composed of members of the Plant Variety Protection Office, experts of the recognized DUS testing organization and experts in such plant.

3. If the plant for which the DUS testing guidelines, QCVN or TCVN on DUS testing of Vietnam/UPOV is not available, the DUS testing guidelines promulgated by the Department of Crop Production shall apply.

4. On-the-spot inspection:

a) For the plant for which a DUS testing organization recognized for cooperation in testing is not available, the expert team shall assess DUS tests at least once at an appropriate time according to the DUS testing guidelines, QCVN or TCVN on DUS testing of Vietnam/UPOV or DUS testing guidelines promulgated by the Department of Crop Production shall.

b) Contents of the inspection: satisfaction of conditions for self-testing; conduct of tests; examination of the variety for distinctness against its most similar variety; uniformity and stability.

c) An on-the-spot inspection record, which is made using the template in the Annex X to this Circular and included in the application for plant variety protection. The Department of Crop Production shall rely on the inspection record to appraise the report on DUS testing conducted by the applicant.

5. Within 45 working days from the end of the testing, the organization or individual that conducts DUS self-testing shall submit a DUS testing report using the template in Annex XI to this Circular.”

10. Article 17 is amended as follows:

“Article 17. Deadline for submitting plant variety samples, management and use of plant variety samples

1. For a plant variety that is tested as prescribed in Point a Clause 1 Article 15 of the Decree No. 88/2010/ND-CP: If the application for plant variety protection is accepted, the applicant shall submit the variety sample for DUS testing and retained for submission to the recognized testing organization at least 20 days before the growing season.

2. For plant varieties that are tested as prescribed in Points a, b and d Clause 1 Article 15 of the Decree No. 88/2010/ND-CP and vegetatively propagated plant varieties: their owners shall retain samples themselves.

3. Quantity and quality of plant variety samples submitted for testing and sample retention shall comply with the DUS testing guidelines, QCVN and TCVN on DUS testing of Vietnam/UPOV applicable to such plants.

4. Owners of plant varieties shall submit samples of protected varieties at the competent authority’s request during the effective period of the certificate of protection of such plant variety. Variety samples shall ensure quality as prescribed in Clause 3 of this Article and the level of variation in the expression of characteristics shall be consistent with that in the variety description at the time of applying for protection.

5. Variety samples shall be retained for 25 years for varieties of woody plants and vines; 20 years for other plant varieties from the date of issue of the plant variety protection certificate.

6. If a retention sample is used for a purpose other than the purpose of DUS testing, testing or post-testing in order to determine the distinctness of the variety or resolve a dispute or file a lawsuit, it is required to obtain a written consent from the plant variety owner.”

11. Article 19 is amended as follows:

“Article 19. Issuance and re-issuance of plant variety protection certificates

1. Issuance of a plant variety protection certificate

a) Composition of the application: A DUS testing report which is prepared using the template in Annex XI to this Circular.

b) The issuance procedures are specified in Article 20 of the Decree No. 88/2010/ND-CP. The plant variety protection certificate is issued using the template in Annex XII to this Circular.

2. Re-issuance of the plant variety protection certificate

The owner reserves the right to apply for re-issuance of the plant variety protection certificate in the following cases: the certificate is lost, torn, damaged or so faded that it cannot be used, the owner is changed or there is any error in the name and address of the certificate holder.

a) Composition of the application:

An application form for re-issuance of the plant variety protection certificate, which is made using the template in Annex XIII to this Circular;

A legal document proving the change of name or address of the certificate holder in the case of change of the owner or any error in the name and address of the certificate holder;

An original of the plant variety protection certificate (except where the certificate is lost);

A letter of authorization, which is made using the template in Annex I to this Circular if the application is submitted by a representative.

b) Procedures:

Within 15 working days from the receipt of a sufficient application, the Department of Crop Production shall appraise it. If the application is valid, the Department of Crop Production shall re-issue the plant variety protection certificate to the applicant. If the application is invalid, the Department of Crop Production shall provide a written explanation to the applicant.

c) If a third person raises an objection to the issuance of the plant variety protection certificate, the regulations laid down in Article 184 of the Law on Intellectual Property shall be complied with.

d) The plant variety protection certificate shall be re-issued 30 days after the date of publishing the re-issuance on the Journal of Agriculture and Rural Development. Number of the re-issued plant variety protection certificate must remain unchanged and the phrase "cấp lại” (“re-issued”) must be written in the bottom left hand corner of the certificate.”

12. Article 20 is amended as follows:

“Article 20. Suspension, reinstatement and invalidation of plant variety protection certificates

1. Procedures for suspending a plant variety protection certificate that no longer satisfies the conditions concerning distinctness and stability as it did at the time of issuing the certificate are specified in Article 21 of the Decree No. 88/2010/ND-CP. The regulations set out in Article 170 of the Law on Intellectual Property shall apply to other cases in which the plant variety protection certificate is suspended.

2. Reinstatement of the plant variety protection certificate

a) The certificate holder is entitled to eliminate the cause for suspension as prescribed in Clause 5 Article 170 of the Law on Intellectual Property.

An application for reinstatement of the plant variety protection certificate is composed of an application form for reinstatement; evidence that the cause for suspension is eliminated; reinstatement fee payment receipt.

b) Within 15 working days from the receipt of a sufficient application, the Department of Crop Production shall appraise it. If the application is valid, the Department of Crop Production shall issue a decision on reinstatement of the plant variety protection certificate and return the result to the applicant. The decision on reinstatement of the plant variety protection certificate shall be published on the Journal of Agriculture and Rural Development. If the application is invalid, the Department of Crop Production shall provide a written explanation to the applicant.

3. Invalidation of the plant variety protection certificate

When it is determined that there are sufficient legal bases for objection raised by the third party to one of the cases specified in Clause 1 of the Law on Intellectual Property, the competent authority shall issue a decision on invalidation of the plant variety protection certificate and published it on the Journal of Agriculture and Rural Development.”

13. Annex 1; Annex 3; Annex 4; Annex 5; Annex 6; Annex 7; Annex 11; Annex 12; Annex 9; Annex 13; Annex 14; Annexes 15 and 16 are replaced with Annex I; Annex II; Annex III; Annex IV; Annex VI; Annex VII; Annex VIII; Annex IX; Annex X; Annex XI; Annex XII; Annex III respectively.

Article 2. Annulment of some regulations of the Circular No. 16/2013/TT-BNNPTNT

Articles 11, 12, 13, 14, 15, 21, 22, 27, 28 and 29 and Annexes 2, 10 and 17 are annulled.

Article 3. Effect

1. This Circular comes into force from August 06, 2021.

2. The Circular No. 41/2009/TT-BNNPTNT dated July 9, 2009 of the Ministry of Agriculture and Rural Development shall cease to have effect from the effective date of this Circular.

3. Transitional clauses:

a) Applications for plant variety protection submitted prior to the effective date of this Circular shall be processed in accordance with the Circular No. 16/2013/TT-BNNPTNT and relevant effective legal documents; procedures for amendment to applications; amendment and re-issuance of plant variety protection certificates shall comply with this Circular.

b) Applications for transfer of applications for plant variety protection; applications for suspension, reinstatement and invalidation of plant variety protection certificates; documentation serving handling of third persons’ objections submitted prior to the effective date of this Circular shall be processed in accordance with the Circular No. 16/2013/TT-BNNPTNT and relevant effective legal documents.

4. The Director General of the Department of Crop Production, Chief of the Ministry Office, heads of units affiliated to the Ministry, organizations and individuals concerned are responsible for the implementation of this Circular.

5. Difficulties that arise during the implementation of this Circular should be promptly reported to the Ministry of Agriculture and Rural Development for consideration and resolution./.