Protection of Plant Varieties in Vietnam

Email: vinh@bross.vn

Definition

Plant variety is a plant group within a single botanical taxon of the lowest known rank, which is morphologically uniform and suitable for being propagated unchanged, and can be defined by the expression of phenotypes resulting from a genotype or a combination of given genotypes, and distinguished from any other plant group by the expression of at least one inheritable phenotype.

Conditions for protection

A protectable plant variety must be of novelty, distinctness, uniformity, stability, proper names.[1]

1. Novelty: a plant variety is considered to be new if its propagating material or harvested product has not been sold or distributed by the entitled person (who has the right to register) by Article 164 of this Law or his/her authorized person for the purpose of exploiting plant varieties in the territory of Vietnam within one year before the date of filing for registration or outside of Vietnam before the date of application within six years applicable for plant varieties belonging to species of woody plants and vines, or within four years for other plant varieties.
2. Distinctness: a plant variety is considered to be distinctive if it is capable of clearly distinguishing it from other widely known plant varieties at the time of filing or of claiming the priority date (if any)
3. Uniformity: a plant variety is deemed to be uniform if it has the same expression of the relevant traits (characteristic features), except for the variations within the permissible limits for certain specific traits during breeding process.
4. Stability: a plant variety is considered to be stable if the relevant characteristics of that plant variety retain the same expression as originally described, unchanged after each propagation season or after every propagation cycle in the case of cyclic propagation.
5. Relevant name (denomination): the registrant must designate an appropriate name for the plant variety with the same name as the name registered in any country when applying for protection.

Infringement of plant varieties

Any act below rendered by any person without permission of the breeder against propagating material and harvested material of a registered plant variety may constitute an infringement of the breeder’s rights[2]:

1. Production or reproduction (multiplication)
2. Conditioning for the purpose of propagation
3. Offering for sale
4. Selling or other marketing
5. Exporting
6. Importing
7. Stocking for any of the purposes mentioned in (a) to (f) above.

However, kindly note that the harvested material subject to an infringement must have been obtained through the unauthorized use of propagating material and that the breeder must not have had reasonable opportunity to exercise his right in relation to the said propagating material.

Requirements

An application for registration of plant variety must be submitted to the New Plant Variety Protection Office under the Department of Crop Production, Ministry of Agriculture and Rural Development, including the following documents: 

(a)        A request for registration using the prescribed form;

(b)        Photos, technical declaration form as prescribed;

(c)        Power of Attorney in favor of Bross & Partners;

(d)       Documents proving the entitlement to registration, if the registrant is the person assigned the right to register;

(e)        Documents proving the priority, if the application has a claim for priority;

(f)        Receipt of fees and charges in accordance with the Ministry of Finance's Circular 180/2011/TT-BTC dated December 14, 2011.

Formality and Substantive Examination

The Plant Variety Protection Office under the Department of Crop Production shall receive and examine the application form within 15 days after receiving the applications. Where the application is deemed inappropriate, it will notify the applicant of the correction of deficiencies within 30 days.

Upon acceptance as to formality, the application shall be published on the Journal of Agriculture and Rural Development and examined as to substance by the Plant Variety Protection Office within 90 days counting the date of its receipt of technical test (the DUS test). The range of examination by the Plant Variety Protection Office comprises evaluation of novelty and appropriate names of plant varieties, and evaluation of technical test results of plant varieties.

The breeder or applicant submits the variety sample to the assaying agency and the testing agency shall conduct technical test in two crops of the same name (for short-term crops) or in 3-5 years (for long-term plants). After finishing the technical testing, within 30 days, the technical testing agency must send the test results report to the Plant Variety Protection Office.

After verification of technical test results, if the variety meets the protection conditions (novelty, distinctness, uniformity, stability, and proper name), the Plant Variety Protection Office shall submit the application for protection of plant variety to the Minister of Agriculture and Rural Development to issue a decision on grant of protection and shall publish it on the Agriculture and Rural Development magazine.

After the expiry of 30 days from the date of the decision of grant of protection is published on the magazine of agriculture and rural development, if no any opposition by third party is filed, a certificate of protection of plant variety is issued by Director of Department of Crop Production.

A sample of certificate of protection of plant variety as below

Payment of Annuities

A granted certificate of protection of plant variety is valid from the date of issuance till the expiry of twenty five years for woody plants and vines, or until the expiry of twenty years for other plant varieties. However, in order for this validity is not suspended, the registrant or owner of the certificate of variety protection must pay maintenance fees annually, ie. within 3 months after the date of grant of the protection certificate for the first year of validity, and every first month of each subsequent year of validity.

Bross & Partners, an IP law firm ranked as Tier 1 by the Legal 500 Asia Pacific, is an accredited agent for registering plant variety before the Plant Variety Protection Office of Vietnam. Should you have specific needs, please contact: vinh@bross.vn; cellphone 84-903 287 057, 84-24-3555 3466; Wechat: Vỉnhbross2603; Skype: vinh.bross