Plant varieties

1. Definition

Plant variety is defined as a plant grouping within a single botanical taxon of the lowest known rank, uniform of morphological, stability in the propagation circle, which can be distinguished by the phenotype expressed by a genotype or the combination of genotypes and distinguished from other plant grouping in at least one genetic phenotype.

2. Registrability

In order to be protected under our law, a plant variety must be meet the following requirements:

– Novelty

– Distinctness

– Uniformity

– Stability

Those criterial are further explained as follows:

2.1. Novelty of the plant variety

The variety shall be deemed to have novelty if the propagating or harvested material of the variety has not been sold or distributed in other ways for the purpose of exploitation by or with the consent of the holder of the registration right in the territory of Vietnam more than one year before the date of the application form is submitted; or outside Vietnam more than six years before the date of application form is submitted for trees or grape and 4 years for other species.

2.2. Distinctness of the plant variety

The variety shall be deemed to have distinctiveness if it is clearly distinguishable in one or more major characteristics from any other variety whose existence is common knowledge at the time of filing or on the priority date, as the case may be. The common knowledge varieties mean the varieties of one of the following cases:

– Propagating materials or harvested products of such variety have been widely used in the market of any country in the world at the time of filing of the registration application;

– The variety has been protected or registered into the List of plant species in any country;

– The plant variety is still the subject of an application for protection or for the List of plant species in any country provided that application form was not refused.

– The plant variety which has had its description published.

2.3. Uniformity of the plant variety

The variety shall be deemed to have uniformity in the propagation if there is the same expression of the relevant phenotype unless the variation is permitted for certain characteristic in its propagation process.

2.4. Stability of the plant variety

The variety shall be deemed to be stable if the relevant phenotypic characteristics of that variety retain the same expression as originally described, and remain unchanged after each propagation crop or propagation cycle, as the case may be.

3. Right to file application

The organizations and individuals holding the right to apply Protection Certificate for plant variety (to be referred to as registrant) include:

a) Breeder who directly bred or discovered and developed the variety by their expenses by way of his/her own efforts and expenses.

b) Organizations or individuals which invested for the breeder to breed or discover and develop the plant variety by contract unless otherwise agreed.

c) Organizations and individuals transferred or inherited the right of registration for Plant variety protection

For the plant variety which is bred or discovered and developed by way of using the State’s budget or the finance of the project under the State management, the rights over such plant variety will belong to the State.

4. Priority principle

The applicant may request priority rights in case an application form was submitted within 12 months from the date on which the application form of the same variety has been submitted in a country which and the Socialist Republic of Vietnam both enter into an agreement on plant variety protection.

5. Process of examination

– Formality Examining: Within 15 days from the filing date, the application form will be examined over plant varieties in order to determine the validity of the application.

– Publication of the application: If the application form is valid, the State management office of the rights over plant varieties shall publish in the specialized bulletin on plant varieties within 90 days from the date such application is accepted.

– Substantive Examining:  The substantive examination is conducted to determine the registrability of a plant variety. The examination includes:

a) To examine for novelty and the denomination.

b) To examine the results of Technical Test of the variety.

Technical Test means the conduct of growing tests in order to determine the distinctness, uniformity and stability of the variety. This kind of test shall be carried out by the competent office or organizations or individuals who have enough capacity for conducting the technical test following the stipulations of the Ministry of Agriculture and Rural Development.

The time for examining of the test results shall be 90 days from the date of receiving the technical test results.

If a registration application for protection is not refused if the applicant pays the fee, the decision for granting the plant variety protection certificate will be issued and this shall be recorded record this into the National Registration Book of Protected Plant Varieties.

6. Term of protection

The plant variety protection certificate will take effect from the date of the grant of rights for a period of 25 years for trees and vines; 20 years for other species.

7. Rights and obligations of the Breeder and Certificate holder

7.1. Rights

The Breeder of a plant variety has following rights: (i) name of the Breeder will be recorded on the plant variety protection certification and in the National Registry for protected plant varieties and in all the published documents relating to the plant variety; (ii)to get compensation as stipulated;

The Holder of a protection certificate has the rights to use or permit other persons to use the following rights over the propagating materials of the protected plant variety:

a. Production or multiplication;

b. Processing for the purpose of propagation;

c. Offering for sale;

d. Selling or other marketing;

dd. Exporting;

e. Importing;

g. Stocking for any of the purposes listed in points a, b, c, d, dd and e as mentioned above.

He/she also has the right to prohibit other from using the plant variety and to pass by inheritance or bequest or transfer the rights over the plant variety

7.2. Obligations

1. The Holder of the protection certificate has the following obligations:

a) To pay compensation to the breeder as agreed between them, in the absence of such agreement, the compensation must be paid following the stipulations of the current law.

b) To pay fees for the plant variety protection certificate according to the stipulation.

c) To preserve the protected variety and to supply propagating material of the protected variety to the state administrative authority of the rights over plant varieties and to maintain the stability of the protected variety as the stipulations.

2. The Breeder of the variety has the obligation to help the protection certificate holder to maintain the propagating material of protected variety.

7.3 Limitations of Rights

The following acts are not considered as infringements of the rights over a protected plant variety:

a. Using the variety privately for non-commercial purposes;

b. Using the variety for scientific research purpose;

c.  Using the variety to create new plant varieties distinctive from the protected plant varieties;

d.   Production households may use the harvested products of the protected variety for propagation and cultivation in the next season in their own field.

Rights over a plant variety shall not be extended to the acts related to any materials of the protected variety which have been sold or otherwise taken out of the Vietnamese or overseas market by the Certificate holder or his or her nominee, except for the following acts: (1)Relate to the continuous propagation of such a plant variety; (ii) Relate to the export of propagating materials of such plant variety to a country where the genus or species are not protected except where such materials are exported for consumption purpose only

8. Cancellation and suspension

The plant variety protection Certificate will be cancelled in the following circumstances:

a)   The application form belongs to an applicant who does not have the right to file, except where the right over a plant variety has been assigned to the holder of the registration right;

b) The protected variety did not meet the conditions for novelty or distinctness at the time of granting the plant variety protection certificate.

c)   The protected variety did not meet the conditions for uniformity or stability if the plant variety protection certificate is granted on the basis of technical test results which were supplied by the registrant.

The plant variety protection Certificate may be suspended in one of the following cases:

a) The uniformity and stability of the protected variety no longer meets the requirements as at the time of granting the certificate;

b) Certificate Holder does not pay the annual fees in accordance with the regulations;

c) Certificate Holder does not supply the necessary documents and propagating materials for maintaining as prescribed.

d) Certificate Holder does not change the name of the plant variety as requested by the State management office of the rights over plant varieties;

9. Infringement

The following acts shall be considered as infringements upon to the rights of the protection certificate holders:

–  Exploiting or using the rights of the protection certificate holder without his permission.

–  Using a denomination of the variety which is identical or similar to a protected denomination of the plant variety of the same or other similar species.

– Using the protected plant variety without payment of the compensation amount.