Protecting plant variety in Vietnam

Plant varieties play an important role in agricultural and forestry activities. In recent years, with the development of science and technology, many high-productive and high-quality plant varieties have been created to meet people’s increasing needs. Therefore, registering plant variety protection as an intellectual property right is extremely important.

Legal basis for protecting plant variety in Vietnam

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022;
• Decree 79/2023/ND-CP detailing several articles and measures to implement the Law on Intellectual Property regarding rights to plant varieties;
• Circular 207/2016/TT-BTC stipulates the collection rates, collection, payment, management, and use of state fees in forestry cultivation and varieties.
• Decision 4953/QD-BNN-TT stipulates the promulgation of newly issued administrative procedures and replacement administrative procedures in the field of crop cultivation under the management scope of the Ministry of Agriculture and Rural Development.

Plant varieties and conditions for plant variety protection

What is a plant variety in Vietnam?

According to Clause 24, Article 4 of the Law on Intellectual Property 2005, as amended in 2009, 2019, and 2022, a plant variety is a population of plants belonging to the same lowest plant classification level, uniform in morphology, stable through breeding cycles, identifiable by the expression of traits determined by genotype or combination of genotypes and distinguishable from any other plant population by the expression of at least one heritable trait.

Conditions for protection of plant varieties

A protected plant variety is a plant variety that is selected, bred discovered, and developed, has novelty, distinctness, uniformity, stability, and has a suitable name.

• Novelty of plant varieties: A plant variety is considered to be novel if the propagating material or harvested products of that plant variety have not been sold or distributed by the person with the right to register or his/her licensee in any other way to exploit the plant variety in the territory of Vietnam one year before the date of filing the application for registration or outside the territory of Vietnam six years before the date of applying for registration for woody plant varieties and woody vines, and four years for other plant varieties.
• Varieties of plants: A plant variety is considered distinct if it is distinguishable from other plant varieties that are generally known at the time of application or, if priority is claimed, on the priority date.
• Uniformity of plant varieties: A plant variety is considered to be uniform if it exhibits the same characteristics, except for deviations within the permissible range for certain specific characteristics during the breeding process.
• Stability of plant varieties: A plant variety is considered to be stable if the relevant characteristics of that plant variety retain their original description and remain unchanged after each propagation season or after each propagation cycle in the case of cyclic propagation.
• The name of a plant variety: A plant variety is considered appropriate if it is capable of being readily distinguished from the names of other widely known plant varieties of the same or similar species.

Right to register for plant variety protection in Vietnam

To be protected for rights to plant varieties, organizations, and individuals must submit an application for protection to the state management agency for rights to plant varieties.

Organizations and individuals with the right to register include:

• The author directly selects, creates discovers, and develops plant varieties with his efforts and expenses;
• Organizations and individuals investing in authors to select,create or discover, and develop plant varieties in the form of work assignment or hiring, except in cases where the parties have other agreements or in cases specified in Clauses 3 and 4, Article 164 of the Law on Intellectual Property;
• Organizations and individuals are transferred, inherited, or succeeded in the right to register for plant variety protection.

For plant varieties selected and bred or discovered and developed as a result of scientific and technological tasks using the entire state budget, the right to register the plant variety is assigned to the organization in charge of that task automatically and without compensation.

For plant varieties that are selected, created or discovered, and developed as a result of scientific and technological tasks invested with many sources of capital, including a portion of the state budget, the registration rights for the plant variety corresponding to the proportion of the state budget are assigned to the presiding organization automatically and without compensation.

Application for protecting plant variety in Vietnam

• Application form as prescribed in Form No. 01 issued with Decree 79/2023/ND-CP. Each page must have the signatures of the parties or the seal of the joint;
• Technical declaration: In case the registered variety belongs to a plant species that 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 a DUS testing document or the DUS testing document does not have information about the technical declaration: Use the technical declaration form according to the provisions of Form No. 02 issued with Decree 79/2023/ND-CP;
• Original or certified copy of authorization document in case of submitting Application for Registration through a representative service organization; the contents of the authorization document include: authorizing party, authorized party, scope of authorization, and authorization period;
• Photos showing 03 typical characteristics of the registered variety: Minimum 03 color photos, minimum size 9 cm x 15 cm;
• Certified copy of Documents proving the right to register in case the registrant is transferred the right to register or inherits (Contract of transfer of registration rights, inheritance document, succession document, or other equivalent document), Documents proving nationality or permanent residence or business establishment in a UPOV member country;
• Documents proving the right of priority (if any) include copies of documents on the first application certified by the plant variety protection agency in the country of first filing, samples or evidence confirming that the plant variety in the two applications is the same, certified copies of contracts for transfer, inheritance, succession of priority rights (if any). These documents proving the right of priority must be provided within 90 days from the date of applying for protection.

Procedures for registering plant variety protection title

• Executive Time: Within 15 days from the date of receiving the complete application, the Ministry of Agriculture and Rural Development shall examine the form of the Application for Plant Variety Protection.
• Application examination fee: VND 2,000,000/time.

Note on DUS test

In case the registered variety belongs to a plant species that does not have a DUS testing document, within 30 days from the date of issuance of the notice of acceptance of a valid application, the Ministry of Agriculture and Rural Development shall organize the development of a DUS testing guidance document within 06 months.

Plant variety protection services of Viet An Law

• Legal advice on plant variety protection;
• Drafting application for plant protection title;
• Represent clients to submit documents, monitor progress, and make amendments when requested by state agencies;
• Exchange and provide information to clients during the process of plant variety registration.

If you have any difficulties or problems related to or need support for plant variety protection as well as registration for protection of other intellectual property rights, please contact Viet An Law Firm for the best support!

Update: 10/2024