Circular No. 03/2021/TT-BNNPTNT amending Circular No. 16/2013/TT-BNNPTNT

CIRCULAR

Amending and supplementing a number of articles of the Ministry of Agriculture and Rural Development’s Circular No. 16/2013/TT-BNNPTNT of February 28, 2013, on the protection of rights to plant varieties^[1]

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

Pursuant to the November 29, 2005 Law on Intellectual Property; and the June 19, 2009 Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property;

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

Pursuant to the Government’s Decree No. 88/2010/ND-CP of August 16, 2010, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property regarding rights to plant varieties; and Decree No. 98/2011/ND-CP of October 26, 2011, amending and supplementing a number of articles of the decrees on agriculture;

Pursuant to the Government’s Decree No. 105/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding the protection of intellectual property rights and the state management of intellectual property; and Decree No. 119/2010/ND-CP of December 30, 2010, amending and supplementing a number of articles of Decree No. 105/2006/ND-CP;

Pursuant to the Government’s Decree No. 94/2019/ND-CP of December 13, 2019, detailing a number of articles of the Law on Crop Production regarding plant varieties and cultivation;

At the proposal of the Director of the Department of Crop Production;

The Minister of Agriculture and Rural Development promulgates the Circular amending and supplementing a number of articles of the Ministry of Agriculture and Rural Development’s Circular No. 16/2013/TT-BNNPTNT of February 28, 2013, on the protection of rights to plant varieties.

Article 1. To amend and supplement a number of articles of the Ministry of Agriculture and Rural Development’s Circular No. 16/2013/TT-BNNPTNT of February 28, 2013, on the protection of rights to plant varieties (below referred to as Circular No. 16/2013/TT-BNNPTNT) as follows:

1. To amend and supplement Article 1 as follows:

“Article 1. Scope of regulation    

This Circular details the establishment and representation of rights to plant varieties; grant and re-grant of plant variety protection titles; suspension, restoration of validity and invalidation of plant variety protection titles.”

2. To amend Clause 2, Article 4 as follows:

“2. Authorized representatives of applicants shall carry out procedures for protection of plant varieties in accordance with the regulations on authorization; and must have a power of attorney made according to the form provided in Appendix I to this Circular.”

3. To amend and supplement Article 5 as follows:

“Article 5. General provisions on performance of administrative procedures referred to in this Circular

1. Submission of dossiers for performance of administrative procedures: Organizations and individuals may submit dossiers directly or send by post or electronically (via the national single-window mechanism or online public services, by means of electronic software):

a/ A dossier submitted directly or sent by post must contain original documents or certified copies, copies together with originals to be presented for checking, or copies bearing the seal of the submitting unit, for documents issued by the unit itself;

b/ A dossier submitted electronically must contain copies scanned or photocopied from the originals. Documents included in the dossier must be declared and bear digital signatures on the e-forms provided by the system under Clauses 1 and 2, Article 9 of the Government’s Decree No. 45/2020/ND-CP of April 8, 2020, on performance of administrative procedures in the electronic environment.

2. Dossier quantity: 1 set.

3. Time limit for making a reply on dossier completeness:

a/ For a dossier submitted directly, the Department of Crop Production shall examine the dossier and immediately make a reply to the dossier submitter;

b/ For a dossier sent by post, within 3 working days after receiving it, the Department of Crop Production shall examine its completeness; if finding the dossier incomplete, it shall notify such to the dossier submitter;

c/ For a dossier sent electronically, within 8 working hours after receiving it, the Department of Crop Production shall examine its completeness; if finding the dossier incomplete, it shall notify such to the dossier submitter.

4. Methods of paying charges and fees for performance of administrative procedures: Charges and fees shall be paid under current regulations directly at the Department of Crop Production or by another service in accordance with law.

5. Methods of notifying administrative procedure settlement results: The Department of Crop Production shall notify settlement results at the place of dossier receipt or send them by post or electronically.

6. Should there be any provisions of this Circular different from those of Clauses 1 thru 5 of this Article, the former shall prevail.

7. In case documents included in a dossier must be translated into Vietnamese under Clause 2, Article 174 of the Law on Intellectual Property, the translations must be notarized or certified by registrants.

8. Organizations and individuals shall take responsibility before law for the authenticity of the dossiers they submit.”

4. To amend and supplement Article 6 as follows:

 “Article 6. Publicly known plant varieties and novelty of plant varieties

1. Publicly known plant variety means a plant variety falling into any of the following cases:

a/ Its propagating materials or harvested materials have been widely used in the Vietnamese market or in any other country by the time of filing the protection registration application;

b/ It has been protected or recognized for circulation or exceptionally recognized for circulation, self-declared for circulation, recognized for trial production, officially recognized in Vietnam or included in the list of plant varieties permitted for production and trading in any other country;

c/ It is the subject matter stated in an application for registration for protection of a new plant variety; recognition of circulation or exceptional recognition of circulation; inclusion in the list of plant varieties in any other country, provided such an application is not rejected.

2. Novelty of plant varieties

A plant variety is considered no longer novel after twelve (12) months from the date it is permitted for production and trading in Vietnam. Plant varieties permitted for production and trading include officially recognized varieties; varieties included in the list of plant varieties permitted for production and trading in Vietnam; varieties for which circulation recognition decisions or exceptional circulation recognition decisions have been issued; and varieties self-declared for circulation and published on the website of the Department of Crop Production.”

5. To amend and supplement Article 7 as follows:

“Article 7. Forms for protection of rights to plant varieties

a/ Declaration form for registration of the contract on transfer of rights to plant varieties, provided in Appendix II to this Circular.

b/ Declaration form for request for compulsory licensing of plant varieties, provided in Appendix III to this Circular.”

6. To amend and supplement Article 8 as follows:

“Article 8. Charges and fees for protection of rights to plant varieties

1. Charges and fees for protection of rights to plant varieties comply with the Ministry of Finance’s Circular No. 207/2016/TT-BTC of November 9, 2016, specifying rates and providing the collection, remittance, management and use of charges and fees in the field of agriculture and forest tree cultivars; (below referred to as Circular No. 207/2016/TT-BTC).

2. The time limit for paying fees for maintaining validity of protection titles must comply with Clause 2, Article 24 of the Government’s Decree No. 88/2010/ND-CP of August 16, 2010, detailing and guiding the implementation of a number of articles of the Law on Intellectual Property and the Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property regarding rights to plant varieties (below referred to as Decree No. 88/2010/ND-CP).

3. In case Circular No. 207/2016/TT-BTC is revised or replaced, the revising or replacing one(s) shall be complied with.”

7. To amend and supplement Article 9 as follows:

“Article 9. Receipt of plant variety protection registration applications and transfer of the right to file plant variety protection registration applications

1. An application for registration of protection of rights to a plant variety must comprise the following documents:

a/ A declaration for registration for protection of the plant variety, made according to the form provided in Appendix IV to this Circular;

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

- In case the plant variety to be registered belonging to a plant species for which guidelines, regulations, national technical regulation and national standard on DUS testing of Vietnam/UPOV have been provided or promulgated, the declaration form for DUS testing provided in these documents shall be used;

- In case the plant variety to be registered not belonging to any plant species for which guidelines, regulations, national technical regulation and national standard on DUS testing of Vietnam/UPOV have been provided or promulgated, the declaration form for DUS testing provided in Appendix V to this Circular shall be used;

c/ A power of attorney, made according to the form provided in Appendix I to this Circular (for cases of filing the application through representation);

d/ Photos of the variety sample: At least 3 color photos of 9 cm x 15 cm or larger showing 3 specific characteristics of the variety to be registered;

dd/ A document proving the registration right (the contract on transfer of the right to use the plant variety or document proving that the applicant is a lawful representative of the owner of the variety to be registered);

e/ A document proving the priority right, in case the application registering claim for the priority right;

g/ A copy of the charge and fee receipt.

2. The date of receipt of an application for registration of plant variety protection is the date the Department of Crop Production receives all the documents specified in Clause 1 of this Article.

3. The notice of acceptance of a plant variety protection registration application shall be made according to the form provided in Appendix VI to this Circular.

4. Before the Department of Crop Production issues a decision to grant a plant variety protection title or notice of refusal to grant a plant variety protection title, the applicant may transfer the right to file plant variety protection registration application to another organization or individual. The transferee shall send the contract on transfer of the right to file plant variety protection registration application to the Department of Crop Production.”

8. To amend and supplement Article 10 as follows:

“Article 10. Modification and supplementation of plant variety protection registration applications

1. Before granting a plant variety protection title, the protection registration application may be modified or supplemented in the following cases:

a/ Modifying or supplementing the application without substantively changing the application: correcting a spelling error in the name or address of the applicant, owner or breeder, or name of the plant variety;

b/ Changing the name or address of the applicant, owner or breeder of the plant variety if there are legal grounds;

c/ Changing the name or address of the applicant at the request of the owner (for cases of filing the application through a representative); changing the name or address of the owner or breeder of the plant variety due to transfer of the application under a contract or through inheritance or bequeathal.

2. A dossier for modification or supplementation of a plant variety protection registration application must comprise:

a/ A declaration for request for modification or supplementation of the application, made according to the form provided in Appendix VII to this Circular;

b/ The certified copy of the contract on transfer (in case of transfer of the application) or legal grounds proving the change of the name or address of the applicant, owner or breeder of the plant variety;

c/ A document proving the inheritance or bequeathal (certified by the registered owner), document proving the personal rights between the registered owner and the inheritor; the death certificate or an extract of the death declaration of the registered owner (if any);

d/ A power of attorney, made according to the form provided in Appendix I to this Circular for cases of change of the representation.

3. Order and time limit for modification or supplementation

Within 15 working days after receiving a complete dossier, the Department of Crop Production shall appraise it. In case the dossier is valid, the Department of Crop Production shall issue a notice of acceptance of modified or supplemented contents, notify results to the requester, and publish such notice on its website. In case the dossier is invalid, the Department of Crop Production shall notify such in writing to the requester, clearly stating the reason.

4. If any request for modification and supplementation of a plant variety protection registration application is made in a case other than those specified in Clause 1 of this Article, the applicant shall file the application again.”

9. To amend and supplement Article 16 as follows:

“Article 16. DUS testing conducted by applicants

1. In addition to the documents specified in Article 174 of the Law on Intellectual Property, an applicant that conducts by itself/himself/herself DUS testing of its/his/her plant variety shall additionally submit the following documents:

a/ A detailed declaration of conditions for DUS testing, made according to the form provided in Appendix VIII to this Circular up to specific requirements stated in guidelines, regulations, national technical regulation and national standard on DUS testing of Vietnam/UPOV for each plant species;

b/ The DUS testing plan, made according to the form provided in Appendix IX to this Circular.

2. The Department of Crop Production shall examine the dossier of registration for DUS self-testing. The applicant shall contact a recognized DUS testing organization for coordination in inspection and assessment of the DUS testing and send the coordination plan to the Department of Crop Production before conducting the testing. For plant species for which there is no recognized DUS testing organization to coordinate with it in the testing, the Department of Crop Production shall form an expert team in charge of inspection the technical testing. Such an expert team shall be composed of members of the New Plant Variety Protection Office and experts of the recognized DUS testing organization and expert(s) knowledgeable about the tested plant species.

3. For plant species for which guidelines, regulations, national technical regulation and national standard on DUS testing of Vietnam/UPOV have not yet been provided or promulgated, the guidelines provided by the Department of Crop Production shall apply.

4. Field inspection:

a/ For plant species for which there is no recognized DUS testing organization to coordinate in the testing, the expert team shall assess DUS testing experiments at least once at a proper time under the guidelines, regulations, national technical regulations and national standards on DUS testing of Vietnam/UPOV or guidelines promulgated by the Department of Crop Production.

b/ Examination contents: The organization’s or individual’s satisfaction of the specified conditions for self-testing; the performance of tests; examination of the distinctness of the variety against its most similar variety; uniformity and stability.

c/ The written record of field inspection shall be made according to the form provided in Appendix X to this Circular and filed in the dossier for registration of plant variety protection. The Department of Crop Production shall base itself on the written record of field inspection to appraise the report on results of DUS testing conducted by the applicant.

5. Within 45 working days after the DUC testing is completed, the organization or individual that conducts the testing shall send to the Department of Crop Production a report on DUS testing results, made according to the form provided in Appendix XI to this Circular.”

10. To amend and supplement Article 17 as follows:

“Article 17. Time limits for submission of plant variety samples and management and use of plant variety samples

1. For plant varieties subject to testing specified at Point a, Clause 1, Article 15 of Decree No. 88/2010/ND-CP: In case the plant variety protection registration application is accepted, the applicant shall submit variety samples for DUS testing and retain variety samples for the recognized testing organization at least 30 days before the first crop season.

2. For plant varieties subject to testing specified at Points b, c and d, Clause 1, Article 15 of Decree No. 88/2010/ND-CP and varieties of asexual plant species: Their owners shall keep variety samples by themselves.

3. Quantity and quality of variety samples submitted for testing and retention must comply with the guidelines, regulations, national technical regulations and national standards on DUS testing of Vietnam/UPOV for such plant species.

4. The owner of a plant variety shall submit the protected variety sample at the request of a competent state agency within the validity duration of the protection title of such plant variety. The variety sample must ensure its quality under Clause 3 of this Article with the level of the expression of its characteristics in conformity with the variety description at the time of protection registration.

5. Variety samples shall be retained for 25 years, for tree and vine varieties; and 20 years, for other plant varieties from the date of grant of protection titles for such plant varieties.

6. In case a retained variety sample is used for a purpose other than the DUS testing purpose, testing or post-testing in order to determine the authenticity of the variety or resolve a dispute or file a lawsuit, a written consent of the plant variety owner is required.”

11. To amend and supplement Article 19 as follows:

“Article 19. Grant and re-grant of plant variety protection titles

1. Grant of a plant variety protection title

a/ A dossier must include a report on DUS testing results, made according to the form provided in Appendix XI to this Circular.

b/ Procedures for grant must comply with Article 20 of Decree No. 88/2010/ND-CP. Plant variety protection titles shall be granted according to the form provided in Appendix XII to this Circular.

2. Re-grant of a plant variety protection title

A variety owner may request re-grant of a plant variety protection title in the following cases: the protection title is lost, torn, damaged or faded to an extent that it is unreadable, the owner is changed or there is an error in the name or address of the protection title holder.

a/ A dossier must comprise:

A declaration for requesting re-grant of the plant variety protection title, made according to the form provided in Appendix XIII to this Circular;

A legal document proving the change of name or address of the plant variety protection title holder in case of change of the owner or an error in the name or address of the protection title holder;

The original plant variety protection title (unless the protection title is lost);

A power of attorney, made according to the form provided in Appendix I to this Circular, in case the request is submitted through a representative.

b/ The procedures for re-grant:

Within 15 working days after receiving a complete dossier, the Department of Crop Production shall appraise it. In case the dossier is valid, the Department of Crop Production shall re-grant the plant variety protection title and notify results to the requester. In case the dossier is invalid, the Department of Crop Production shall notify such in writing to the requester, clearly stating the reason.

c/ In case a third party raises an objection to the re-grant of the plant variety protection title, the handling of such objection must comply Article 184 of the Law on Intellectual Property.

d/ The plant variety protection title shall be re-granted after 30 days from the date of publishing the decision on re-grant on the Agriculture and Rural Development Magazine. The re-granted plant variety protection title must remain the number of the originally granted plant variety protection title and bear the phrase “cap lai” (“re-granted”) in its bottom left corner.”

12. To amend and supplement Article 20 as follows:

“Article 20. Suspension or restoration of validity and invalidation of plant variety protection titles

1. The order and procedures for suspension of validity of a plant variety protection title for the reason that the protected plant variety no longer satisfies the uniformity and stability requirements as at the time of grant of the protection title must comply with Article 21 of Decree No. 88/2010/ND-CP. Suspension of validity of plant variety protection titles in other cases must comply with Article 170 of the Law on Intellectual Property.

2. Restoration of validity of a plant variety protection title

a/ The protection title holder may remedy the causes of suspension under Clause 5, Article 170 of the Law on Intellectual Property.

A dossier of request for restoration of validity of the plant variety protection title must comprise a written request for restoration of validity of the plant variety protection title; proofs that the causes of suspension have been remedied; receipt of the fee for restoration of validity of the plant variety protection title.

b/ Within 15 working days after receiving a complete dossier, the Department of Crop Production shall appraise it. In case the dossier is valid, the Department of Crop Production shall issue a decision to restore validity of the plant variety protection title and notify results to the requester. The decision on restoration of validity of the plant variety protection title shall be published on the Agriculture and Rural Development Magazine. In case the dossier is invalid, the Department of Crop Production shall notify such in writing to the requester, clearly stating the reason.

3. Invalidation of a plant variety protection title

If determining that the objection raised by a third party to one of the cases specified in Clause 1, Article 171 of the Law on Intellectual Property is legally backed, a competent state agency shall issue a decision on invalidation of the plant variety protection title and publish it on the Agriculture and Rural Development Magazine.”

13. To replace Appendices 1, 3, 4, 5, 6, 7, 11, 12,  9, 13, 14, with Appendices I, II, III, IV, VI, VII, VIII, IX, X, XI, XII, respectively; and replace Appendices 15 and 16 with Appendix XIII.

Article 2. To annul a number of articles of and appendices to Circular No. 16/2013/TT-BNNPTNT

To annul Articles 11, 12, 13, 14, 15, 21, 22, 27, 28 and 29 and Appendices 2, 10 and 17.

Article 3. Effect

1. This Circular takes effect on August 6, 2021.

2. The Ministry of Agriculture and Rural Development’s Circular No. 41/2009/TT-BNNPTNT of July 9, 2009, providing the management and use of plant variety samples ceases to be effective from the effective date of this Circular.

3. Transitional provisions:

a/ Plant variety protection registration applications submitted before the effective date of this Circular must comply with Circular No. 16/2013/TT-BNNPTNT and relevant effective legal documents; order and procedures for modification and supplementation of applications, and modification, supplementation and re-grant of plant variety protection titles must comply with this Circular.

b/ Dossiers of transfer of plant variety protection registration applications; dossiers of suspension or restoration of validity and invalidation of plant variety protection titles; and dossiers of handling of objections of third parties submitted before the effective date of this Circular must comply with Circular No. 16/2013/TT-BNNPTNT and relevant valid legal documents.

4. The Director of the Department of Crop Production, Chief of the Office, heads of units of the Ministry of Agriculture and Rural Development, and related organizations and individuals shall implement this Circular.

5. Any problems arising in the course of implementation of this Circular should be promptly reported to the Ministry of Agriculture and Rural Development for consideration and settlement.-

For the Minister of Agriculture and Rural Development
Deputy Minister
LE QUOC DOANH

* The appendices to this Circular are not translated.