Regulations of Vietnamese law when transferring the right to use plant varieties
Just like registering a trademark, transferring the right to use a trademark. For plant varieties, after registering for plant variety protection, how is the transfer of the right to use the plant variety regulated? Today, LSX Lawfirm will give you an article about “Regulations of Vietnamese law when transferring the right to use plant varieties“, as follows:
Legal grounds
Law on Intellectual Property 2005, amended and supplemented in 2009
Decree 105/2006/ND-CP
What is plant variety licensing?
Transfer of the right to use a plant variety means that the holder of a protection license allows another person to perform one or several acts under the use right of his or her plant variety. So how does Vietnamese law specifically regulate this issue?
Vietnamese law provides for this issue in Article 192 of the 2005 Intellectual Property Law, specifically as follows:
About the subject
The subject of the transfer is the owner of the plant variety protection certificate (the transferor), and organizations and individuals that have needs and conditions of use (the transferee). If the right to use the plant variety is jointly owned, the transfer of the use right to another person must be agreed upon by all co-owners.
About form
The license agreement must be made in writing.
About content
The content of this contract includes the following basic contents:
– Full name and address of the licensor and the licensee;
– Grounds for transfer of the right to use;
– The scope of the transfer, including limitations on user rights, and limitations on the territory;
– Contract term;
– The price of the transfer of the right to use;
– Rights and obligations of the licensor and the licensee;
– Liability for breach of contract.
The following caution must be taken that there are no terms that unreasonably restrict the licensor’s rights, especially those that do not stem from the licensor’s right to the licensee. corresponding plant varieties; or not to protect those rights. Pursuant to Clause 4, Article 192 – Law on Intellectual Property 2005.
Principles of transferring use rights to plant varieties?
Firstly, the transfer of the right to use the plant variety is carried out on a voluntary basis by the licensor and the licensee
However, in cases where the right to use a plant variety is transferred to another organization or individual under a decision of a competent state agency without the consent of the protection certificate holder; or the owner of the protection license transfers the exclusive use right (the holder of the exclusive right to use):
– The use of plant varieties for public and non-commercial purposes; serving the needs of national defense, security and food security; and nutrition for the people or meet the urgent needs of society;
The person who has the need and capacity to use the plant variety fails; to reach an agreement with the holder of the exclusive right to use the plant variety on entering into a contract on the use of the plant variety; even though within a reasonable time has tried to negotiate satisfactory prices and commercial terms;
– The holder of the exclusive right to use it is considered to have engaged in anti-competitive behavior; prohibited under competition law.
The holder of the exclusive right to use the plant variety has the right to request termination of the right to use when the grounds for compulsory licensing of the plant variety no longer exist and are unlikely to re-emerge, provided that such termination such use does not cause damage to the licensee.
Secondly, transfer of the right to use the plant variety under a decision of a state agency
In order to protect the interests of plant variety protection certificate holders, according to the provisions of Clause 3, Article 195 of the Intellectual Property Law, the right to use plant varieties transferred under a decision of a competent state agency must comply with the provisions of Article 195 of the Intellectual Property Law. with the following conditions:
– The license to use is not an exclusive right;
– Licensed use rights are limited in scope, and the duration is sufficient to satisfy the purpose of the transfer and primarily to supply the domestic market; except for the case specified at Point c, Clause 1 of this Article;
– The licensee must not assign that right to another person; except for the case of transfer together with its business establishment; and may not transfer the secondary use right to another person;
– The licensee of the use right must compensate the holder of the exclusive right to use the plant variety appropriately, depending on the economic value of such use right in each case; in specific cases, in accordance with the compensation price bracket prescribed by the Government.
Compulsory transfer of the right to use a plant variety
Compulsory cases of transfer of use rights are those that meet the urgent needs of society, including overcoming urgent cases such as natural disasters, epidemics, wars, and environmental pollution on a large scale.
The determination of the compensation price bracket for the compulsory transfer is based on the following bases:
– The transferor and the transferee shall mutually agree;
– In case the parties cannot reach an agreement, the compensation price calculated based on the following bases:
+ Value of the contract; transfer the same variety to another subject at the nearest time, corresponding to the time and number of varieties subject to compulsory transfer of rights;
+ The value of the owner’s profit is equal to; The protection of a plant variety obtained from the exploitation of the copyright of that plant variety corresponds to the quantity and time of the variety to transferred.
Competence and procedures for transferring the right to use plant varieties under compulsory decisions
Competence and procedures for transferring rights under compulsory decisions determined; in accordance with Article 196 of the Intellectual Property Law and guided by Articles 28 and 31 of Decree 88/2010/ND-CP.
A protection certificate holder who required to transfer the use right has the following rights:
- Receive compensation equivalent to the economic value of such use right or equivalent to the transfer price of the use right; under a contract of corresponding scope and term;
- Request the state management agency in charge of rights to plant varieties to amend, suspend or cancel the effect of the compulsory transfer of the right to use when the conditions leading to such transfer have ended and such modification, cancellation, or suspension of effect shall not cause damage to the licensee of the compulsory use right.
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Related questions
Right to a plant variety means the right of an organization or individual to a new plant variety that they choose to create, discover and develop, or enjoy ownership.
New Plant Variety Protection Office – Department of Crop Production is the recipient of applications for plant variety protection. On the basis of receiving the application, the competent entity conducts a formal examination of the protection registration application, publishes the protection registration application, and examines the content of the protection registration application. From there, carry out the necessary professional activities to make a decision to refuse or accept the grant of a plant variety protection certificate.
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