Plant variety registration in Vietnam

Procedures for protecting the plant variety in Vietnam are specifically regulated in the Intellectual Property Law and the newly issued Decree 79/2023/ND-CP to guide the amended regulations in the Intellectual Property Law of 2022. The protection of plant varieties is critical to determine the ownership. To support clients, in the article below, Viet An Law – IP Firm will provide content related to the procedure for plant variety registration in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022;
• Decree 79/2023/ND-CP details several articles and measures to implement Intellectual Property law on rights to plant varieties.

Conditions for plant variety protection according to current law

To protect the rights of plant variety owners, the law stipulates that plant varieties are subject to intellectual property rights. To become a subject of plant variety rights protection, a plant variety must meet specific conditions according to Article 158 of the Intellectual Property Law as follows:

• Protected plant varieties are the result of selection, creation, or discovery and development activities;
• Plant varieties on the List of plants protected by the state;
• Plant varieties must be novelty and distinctiveness;
• Plant varieties need to meet the conditions of uniformity and stability with proper denomination.

Application for plant variety registration in Vietnam

The application for registration of plant variety protection includes the following documents:

• Plant variety protection registration declaration according to Form No. 01 issued with Decree 79/2023/ND-CP;
• Technical statement:
  • In case the registered variety belongs to a plant species that already has a DUS testing document: Use the Technical Declaration Form in that DUS testing document;
  • In case the registered variety belongs to a plant species that does not have DUS testing documents or DUS testing documents do not have information about the technical declaration: Use the Technical Declaration as prescribed in Form No. 02 issued with the Decree. Decision 79/2023/ND-CP.

DUS testing documents include National Standards of Vietnam, documents guiding DUS testing disclosed by member nations of UPOV, countries cooperating with Vietnam in the protection of plant varieties, or the Vietnam Ministry of Agriculture and Rural Development issued;

• Power of Attorney in case of applying for registration through a rights representation service organization: the content of the authorization document includes the authorizing party, the authorized party, the scope of authorization, and the authorization term;
• Photos displaying 03 characteristics of the registered variety: Minimum 03 color photos, minimum size 9cmx15cm;
• Documents proving registration rights in case the applicant is transferred or inherited registration rights (contract of transfer of registration rights, documents on inheritance or equivalent documents), Documents proving has permanent residence or production and business establishment in a UPOV member country;
• Documents proving priority rights if the application claims priority rights are provided within 90 days from the date of applying for protection, including:
  • Copies of documents on the First Registration Application certified by the plant variety protection agency in the country of the first application;
  • Sample or proof of plant variety certification in two applications is the same;
  • Certified copy of transfer, inheritance, and priority rights transfer contract (if any).

Note:

Protection registration applications and transaction documents between the registration enterprise and the state management agency on plant variety rights must be made in Vietnamese or translated into Vietnamese as required by the Ministry of Agriculture and Development Rural Development. The translation must be certified or certified by the service organization representing the enterprise registering the plant variety.

Process of plant variety registration in Vietnam

Step 1: Submitting the application

The applicant submits the registration dossier for plant variety protection at the Vietnam Ministry of Agriculture and Rural Development.

Step 2: Formality examination

Formality examination is understood as reviewing and checking documents accompanying the application and the validity of the application according to the provisions of the Intellectual Property Law and guiding documents. If the application is not suitable, depending on each case, the application will be rejected or amended. The time limit for this stage is within 15 days from the date of receipt of the complete application.

• Valid application: Publish a notice on the Journal of Agriculture and Rural Development and the Electronic Information Portal of the Ministry of Agriculture and Rural Development within 90 days from the date of issuance of acceptance notice for valid applications.
• Invalid application: notify in writing and set a time limit of 30 days from the date of receipt of the notice for the applicant to respond to complete and correct the shortcomings.

Step 3: Conduct testing

After the Protection Registration Application is validly accepted, DUS testing must be conducted in the following form:

• Conducted at a testing organization recognized by the Ministry of Agriculture and Rural Development for agricultural plant varieties; or forestry plant variety testing facility for plant varieties;
• DUS testing is conducted by private enterprises registered for protection;
• Use DUS testing results based on international agreements on exchanging DUS testing results with UPOV member countries or countries that cooperate with Vietnam on plant variety protection.

After DUS testing is carried out according to the provisions of Articles 8, 9, 10 of Decree 79/2023/ND-CP, the following step is:

• In case the registered variety is subject to DUS testing in the first two forms, the applicant performing the testing shall submit the original DUS testing results report according to Form No. 08 issued with Decree 79/ 2023/ND-CP to the Ministry of Agriculture and Rural Development within 90 days from the end of the DUS test.
• In the case of using DUS testing results in the form of using DUS testing results based on international agreements, the Ministry of Agriculture and Rural Development receives the DUS testing report directly from the plant variety protection agency by UPOV member countries or countries cooperating on plant variety protection.

Step 4: Substantive examination

Substantive examination means will be conducted after the formal examination stage, in which the state agency will consider whether the registered plant variety meets the protected conditions.

• Time limit: After completing the formal examination, the substantive examination will be conducted within 90 days from the date of receiving the DUS testing results report.
• If the plant variety meets the protection conditions (distinctiveness, uniformity, stability), the plant variety protection agency shall submit to the Minister of Agriculture and Rural Development for issuance of an approval decision for plant variety protection.
• In case the protection requirements are not met, the Ministry of Agriculture and Rural Development shall issue a notification of refusing to grant a plant variety protection title to the applicant, clearly state the reason, and set a 30-day for correct deficiencies. After the above period, the Ministry issues a notice of refusal to grant a plant variety protection title.

Step 5: Granting a plant variety protection title

• The Ministry of Agriculture and Rural Development issued the Decision on granting plant variety protection titles.
• Published in the Journal of Agriculture and Rural Development and the Electronic Information Portal of the Ministry of Agriculture and Rural Development within 60 days from the date of issuance of the Decision.

New points of Decree 79/2023/ND-CP on procedures for plant variety registration in Vietnam

Regarding registration procedures for plant variety protection

Decree 79/2023/ND-CP guiding the Intellectual Property Law on rights to plant varieties has amended and supplemented several regulations on procedures for registration of plant variety protection, specifically:

• Reduce the time limit for evaluating applications from 18 months to 12 months;
• Supplementing regulations on physical inspection of plant varieties in case of necessity;
• Supplementing regulations on publishing information about plant varieties that have been granted protection titles.

Regarding the rights of plant variety owners

Decree 79/2023/ND-CP has amended and supplemented several regulations on the rights of plant variety owners, specifically:

• Amend regulations on the right to allow or not allow others to use plant varieties;
• Supplementing regulations on the right to transfer rights to plant varieties;
• Supplementing regulations on the right to assign rights to plant varieties.

Regarding the procedure for requesting amendments and supplements to the Plant Variety Protection Registration Application

Decree 79/2023/ND-CP regulates the procedure for requesting amendments and supplements to plant variety protection registration applications as follows:

• Within 15 days from the date of receiving the complete dossier, the Ministry of Agriculture and Rural Development will evaluate the dossier;
• In case the application is valid, the Ministry of Agriculture and Rural Development will issue a Notice of acceptance of amendments and supplements to the application according to the provisions of Form No. 05 issued with Decree 79/2023/ND-CP, and return the application. results for those who register and post notices on the Electronic Information Portal of the Ministry of Agriculture and Rural Development;
• In case the application is invalid, the Ministry of Agriculture and Rural Development will respond in writing to the applicant and clearly state the reason.

Above is an article about plant variety registration in Vietnam. If you have any related questions, please get in touch with Viet An Law – IP representative in Vietnam to receive quick and timely support. Best regards