1. Subject Matter

In the realm of plant innovation, Vietnam offers two main avenues for intellectual property (IP) protection: Plant Variety Rights (PVRs) and patents. But what exactly can you protect under each system? Here's a breakdown of the subject matter catered to by PVRs and patents:

  • Plant Variety Rights (PVRs): Think of PVRs as a shield for entirely new, distinct, uniform, and stable varieties of plants. This protection encompasses the complete plant grouping, not isolated components like genes or specific traits. Imagine a revolutionary rice variety with exceptional drought tolerance. PVRs wouldn't safeguard the individual gene responsible for that tolerance; they would protect the entire new rice variety itself.
  • Patents: Patents offer a broader scope of protection. They can encompass inventions related to plants, including:
    • New Plant Varieties: Just like PVRs, patents can protect entirely new plant varieties. However, unlike PVRs, patents don't require the variety to be uniform or stable across generations. This might be suitable for protecting a new variety still under development.
    • Isolated Genes: Perhaps you've discovered a unique gene responsible for disease resistance in a particular plant. Patents allow you to protect this isolated gene itself, not just the plant variety that expresses it.
    • Specific Plant Traits: Imagine a novel gene editing technique that introduces a desirable aesthetic trait, like a deeper blue flower color, into various plant species. Patents can protect this specific trait, independent of the plant variety it's introduced into.
    • Novel Breeding Methods: Developed a groundbreaking technique for accelerating plant breeding cycles. Patents can safeguard this innovative method itself.

By understanding the subject matter protected by each system, you can make an informed decision about which path best suits your plant innovation, whether it's a completely new variety or the underlying components that make it unique

 

2. Eligibility Requirements

In Vietnam, securing Plant Variety Rights (PVRs) or patents for your plant innovation requires meeting specific criteria. Understanding these eligibility requirements is crucial before embarking on the application process. Here's a closer look at what you need to demonstrate for each type of protection:

Plant Variety Rights (PVRs):

  • Novelty: Your variety must be new, meaning it hasn't been commercially exploited in Vietnam for a specific timeframe established by Vietnamese law. This ensures protection goes to genuinely new developments, not varieties already circulating in the market.
  • Distinctness: The variety must be clearly distinguishable from any existing known variety. This means it should possess unique characteristics that set it apart from anything else currently available.
  • Uniformity: When reproduced, the variety's characteristics must remain consistent across generations. This ensures predictability and stability for farmers who choose to plant your protected variety.
  • Stability: The plant's key characteristics need to remain unchanged after repeated propagation. This guarantees that the variety retains its desired traits over time.
  • Suitable Denomination: You'll need to assign a distinct and available name to your variety. This name serves as a clear identifier for your protected creation.

Patents:

The eligibility criteria for patents are more technical but share some similarities with PVRs:

  • Novelty: Similar to PVRs, your invention must be new and not publicly known before you file your patent application. This ensures patents reward genuine innovation, not already existing knowledge.
  • Inventive Step: Your invention must not be obvious to someone skilled in the field of plant breeding. In simpler terms, it shouldn't be an invention that would be readily apparent to someone with expertise in this area.
  • Industrial Applicability: The invention must be capable of being produced or used in an industrial setting. This ensures patents are granted for inventions with practical applications, not purely theoretical concepts.

By carefully evaluating your plant innovation against these criteria, you can determine if it meets the necessary hurdles for PVR or patent protection in Vietnam. Consulting with a patent attorney can provide valuable guidance in navigating these requirements and ensuring your application has the strongest chance of success.

 

3. Scope of Protection

Plant Variety Rights (PVRs) and patents offer protection for plant innovations, but the extent of that protection differs significantly. Here's a breakdown of the scope of protection provided by each system:

  • Plant Variety Rights (PVRs):

PVRs grant exclusive rights to control activities related to the propagating material (seeds, cuttings, etc.) of the protected variety. This encompasses:

An important caveat to PVR protection in Vietnam is the farmer's privilege. This allows farmers to save seeds or propagating material from their harvest for planting on their own holdings in the following season. This ensures some level of seed security for farmers and acknowledges the traditional practice of saving seeds.

  • Production: You have the exclusive right to control the production of propagating material for your protected variety. This ensures unauthorized parties cannot mass-produce and sell seeds or cuttings derived from your variety.
  • Reproduction: The right to control reproduction allows you to determine how your variety is propagated. This might involve specific techniques or quality control measures to ensure the variety retains its desired characteristics.
  • Sale: PVRs grant exclusive rights to sell the propagating material of your protected variety. This allows you to control commercialization and potentially generate revenue through licensing agreements with seed companies.
  • Import & Export: You have the right to control the import and export of propagating material for your protected variety. This helps prevent unauthorized introduction or distribution of your variety outside of Vietnam.
  • Patents:

Patents offer a broader scope of protection compared to PVRs. The exact extent depends on the specific claims outlined in your patent application. However, patents generally grant exclusive rights to:

  • Make: You have the exclusive right to create or produce the patented invention. This can encompass the entire plant variety itself, isolated genes, specific traits, or even the breeding method used to create the variety.
  • Use: The patent grants exclusive rights to use the invention in any way. This could involve planting the protected variety, utilizing an isolated gene in breeding programs, or employing the patented breeding method.
  • Sell: Similar to PVRs, patents grant exclusive rights to sell the patented invention. This allows you to control commercialization and potentially generate revenue through licensing agreements.
  • Offer for Sale or Import: You have the right to control who can offer for sale or import the patented invention. This helps prevent unauthorized parties from bringing competing products into the Vietnamese market.

By understanding the scope of protection offered by each system, you can make an informed decision about which path best safeguards your interests. PVRs provide a strong shield for controlling the propagation and commercialization of new varieties, while patents offer broader protection for the underlying components of your innovation

 

4. Application Process and Duration

Having explored the subject matter, eligibility requirements, and scope of protection offered by Plant Variety Rights (PVRs) and patents in Vietnam, let's delve into the application process and duration of each:

Application Process:

Both PVRs and patents require filing applications with the National Office of Intellectual Property of Vietnam (NOIP). Here's a simplified overview of each process:

  • PVRs:
    • The application typically includes details about the variety, such as its botanical name, breeding history, and unique characteristics.
    • Technical descriptions and high-quality photographs showcasing the variety's distinct features are often required.
    • Importantly, Vietnam mandates testing to demonstrate the variety's local adaptation. This ensures the protected variety performs well in Vietnamese growing conditions.
  • Patents:
    • The patent application process can be more complex and involve technical specifications related to the invention.
    • Depending on the nature of the invention (entire variety, isolated gene, etc.), detailed descriptions, diagrams, and even genetic data might be required.
    • Unlike PVRs, local adaptation testing isn't mandatory for plant patents.

Duration of Protection:

The duration of protection offered by each system differs:

  • PVRs:
    • Protection for PVRs in Vietnam lasts for a period of 20 years from the date the rights are granted.
    • An additional 5-year extension might be possible under specific circumstances.
  • Patents:
    • The term of protection for plant patents in Vietnam is 20 years from the filing date of the application.

Additional Considerations:

  • Cost: Generally, applying for PVRs tends to be less expensive than patents due to the simpler process and the absence of local adaptation testing requirements.
  • Complexity: The PVR application process is typically easier to navigate compared to the more technical demands of patent applications.

Seeking Professional Help:

Given the complexities involved, especially with patents, consulting with a qualified Vietnamese intellectual property lawyer is highly recommended. They can guide you through the application process, ensure your application adheres to all requirements, and maximize your chances of securing successful protection for your plant innovation.

 

5. Choosing the Right Protection

Now that you understand the intricacies of Plant Variety Rights (PVRs) and patents in Vietnam, it's time to choose the path that best safeguards your plant innovation. Here's a breakdown to help you make an informed decision:

PVRs: Ideal for Entire New Varieties

  • Focus: Protecting entirely new, distinct, uniform, and stable plant varieties.
  • Benefits:
    • Straightforward application process.
    • Lower costs compared to patents.
    • Strong control over the commercialization of propagating material (seeds, cuttings).
  • Considerations:
    • Doesn't protect isolated genes or specific traits.
    • Local adaptation testing requirements might pose a hurdle for some foreign breeders.

Patents: Suitable for Underlying Components

  • Focus: Protecting isolated genes, specific plant traits, or novel breeding methods. Can also encompass entirely new varieties.
  • Benefits:
    • Broader scope of protection compared to PVRs.
    • Can be strategically combined with PVRs for comprehensive protection.
  • Considerations:
    • More complex and expensive application process compared to PVRs.
    • Doesn't offer the same level of control over the commercialization of propagating material as PVRs.

Making the Choice:

The best choice boils down to the nature of your innovation:

  • Entire New Variety: If you've developed a completely new and distinct plant variety, PVRs offer a strong and cost-effective approach.
  • Isolated Genes or Traits: For inventions focused on specific genes or traits, patents provide the necessary protection for these underlying components.
  • Combined Protection: In some cases, a strategic combination of PVRs and patents might be optimal. This could involve securing PVRs for the entire variety while obtaining a patent for the specific gene responsible for a desirable trait.

Additional Factors to Consider:

Beyond the core characteristics of your innovation, here are some other factors to weigh in your decision:

  • Budget: If cost is a major concern, PVRs might be the more suitable option due to their lower application fees.
  • Complexity: If your innovation is relatively straightforward, navigating the PVR application process might be less daunting than the complexities involved with patents.
  • Long-Term Strategy: Consider your long-term goals. If you plan to license your invention or technology, patents might offer a more strategic advantage due to their broader scope of protection.

Consulting an Expert:

The decision between PVRs and patents can be nuanced. Consulting with a Vietnamese intellectual property lawyer specializing in plant varieties is highly recommended. They can assess your specific innovation, analyze your goals, and provide tailored advice on the most suitable path for securing the strongest possible protection for your creation in the Vietnamese market.

 

6. Conclusion

The Vietnamese intellectual property landscape offers breeders and developers a powerful toolkit for safeguarding their plant innovations. By understanding the distinct advantages of Plant Variety Rights (PVRs) and patents, you can make an informed decision about the path that best aligns with your specific creation.

PVRs offer a strong shield for protecting entirely new, distinct, and stable plant varieties. They provide a straightforward application process, cost-effective protection, and control over the commercialization of propagating material. Patents, on the other hand, delve deeper, safeguarding isolated genes, specific traits, or even novel breeding methods. They offer a broader scope of protection and can be strategically combined with PVRs for a comprehensive defense.

Ultimately, the choice between PVRs and patents hinges on the unique characteristics of your plant innovation. Consulting with a Vietnamese intellectual property lawyer is an invaluable step in navigating this decision. Their expertise can ensure your application adheres to all requirements and maximizes your chances of securing robust protection for your creation. By embracing these intellectual property tools, Vietnamese plant innovators can cultivate a future rich in agricultural advancements, reward their hard work, and contribute to a more productive and sustainable food system.

If you need further explanation on this subject, please don't hesitate to contact us through email at lienhe@luatminhkhue.vn or phone at: +84986 386 648. Lawyer To Thi Phuong Dzung.