Cases of compulsory transfer of rights to use protected plant varieties in Vietnam

Cases of compulsory transfer of rights to use protected plant varieties in Vietnam (Internet image)

Regarding this issue, LawNet would like to answer as follows:

1. Cases of compulsory transfer of rights to use protected plant varieties in Vietnam

- Cases of compulsory transfer of rights to use protected plant varieties:

+ Plant varieties are used for public purposes, non-commercial purposes, national defense and security, food and nutrition security for the people, or necessary needs of society in case of natural disasters, epidemics, wars, and widespread environmental pollution;

+ The person who has the capacity and wishes to use the related plant variety fails to reach an agreement with the plant variety right holder regarding the conclusion of a contract to use it after 12 months of negotiations (excluding cases of force majeur+ over the reasonable price and commercial conditions;

+ The plant variety right holder is considered to have committed anti-competitive acts banned by competition laws.

- In case of using plant varieties according to Point a Clause 1 of this Article, the Ministry of Agriculture and Rural Development of Vietnam shall disclose the requirements for the plant varieties, including the names, purposes, amount of varieties to be used, scope, and time for meeting the requirements for transfer purposes, and the time limit for application submission for organizations and individuals wishing to use such plant varieties to carry out the registration.

2. Schedule for compensatory prices for compulsory transfer of rights to use plant varieties in Vietnam

The Ministry of Agriculture and Rural Development of Vietnam shall hire a valuation enterprise to evaluate the prices for plant varieties subject to compulsory transfer of use rights according to current laws. The results of the valuation shall be used as one of the grounds for the Ministry of Agriculture and Rural Development of Vietnam to determine the schedule for compensatory prices for plant varieties subject to compulsory transfer of use rights.

In case a valuation enterprise cannot be hired, the Ministry of Agriculture and Rural Development of Vietnam shall establish a Valuation Council to determine the schedule for compensatory prices for plant varieties subject to compulsory transfer of use rights.

3. Procedures for transferring rights to use protected plant varieties under compulsory decisions in Vietnam

- The receiving party of a transfer of rights to use a protected plant variety under a compulsory decision:

+ An organization or individual wishing to use the related plant variety according to Point b Clause 1 Article 21 of Decree 79/2023/ND-CP;

+ An organization or individual failing to reach an agreement on the use of the related plant variety or being hindered from competition according to Point b and Point c Clause 1 Article 21 of Decree 79/2023/ND-CP.

- Organizations and individuals shall submit applications to the Ministry of Agriculture and Rural Development of Vietnam. An application includes:

+ Application requesting the compulsory transfer of rights to use the related plant variety following Form No. 19 enclosed with Decree 79/2023/ND-CP, specifying the scope and time limit for receiving the compulsory transfer;

+ Original copy of the report on financial capacity following Form No. 20 enclosed with Decree 79/2023/ND-CP;

+ Certified copies of documents proving that the request for the compulsory transfer of rights to use the related plant variety is legitimate under laws regarding cases prescribed in Point b and Point c Clause 1 Article 21 of Decree 79/2023/ND-CP;

+ Authorizing document in case of submitting the application through the right representation service provider. The authorizing document shall include the following contents: the authorizing party, the authorized party, the scope and volume of work subject to authorization, and authorizing time.

- The procedure for compulsory transfer of rights to use the protected plant variety according to Point a Clause 1 Article 21 of Decree 79/2023/ND-CP:

+ Within 15 days after receiving the adequate application, the Ministry of Agriculture and Rural Development of Vietnam shall assess it.

If the application is valid, the Ministry of Agriculture and Rural Development of Vietnam shall issue a decision on the compulsory transfer of rights to use the related plant variety while providing notifications for the transferring and receiving parties for implementation.

+ If the application is invalid, the Ministry of Agriculture and Rural Development of Vietnam shall provide answers and explanations for the applicant in writing.

- The procedure for compulsory transfer of rights to use the protected plant variety according to Point b and Point C Clause 1 Article 21 of Decree 79/2023/ND-CP:

+ Within 12 days after receiving the adequate application, the Ministry of Agriculture and Rural Development of Vietnam shall assess it and notify the plant variety right holder of the request for compulsory transfer of rights to use the related plant variety.

+ Within 30 days from the date of notification, the plant variety right holder shall provide a written answer.

+ In case the plant variety right holder does not provide any answer or has written consent to the request for compulsory transfer of rights to use the related plant variety, the Ministry of Agriculture and Rural Development of Vietnam shall issue a decision on the compulsory transfer of rights to use the related plant variety.

+ In case the plant variety right holder objects to the request for the compulsory transfer of the rights to use the related plant variety, the Ministry of Agriculture and Rural Development of Vietnam shall assess the objection within 12 days from its receipt:

If the request for the compulsory transfer of rights to use the related plant variety conforms to the regulations, the Ministry of Agriculture and Rural Development of Vietnam shall issue a decision on the compulsory transfer of rights to use the related plant variety and provide notifications for the transferring and receiving parties for implementation.

If the request for the compulsory transfer of rights to use the related plant varieties does not have sufficient grounds according to Point b and Point c Clause 1 Article 21 of Decree 79/2023/ND-CP, the Ministry of Agriculture and Rural Development of Vietnam shall issue a refusal notification and provide specific reasons.

Legal basis: Articles 21, 22 and 23 of Decree 79/2023/ND-CP.

Ho Quoc Tuan

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