Compare the status of the inventor and patent owner

Invention is one of the objects of industrial property rights. Industrial property rights of inventions include the rights of the inventor and the rights of the patent owner. However, in reality, many customers often confuse the status of the inventor with the patent owner; others assume that the inventor and the patent owner are the same entity a subject. To answer our customers’ questions, Viet An Law Firm offers an article to compare the status of the inventor and patent owner under Vietnamese regulation below.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022.

What is a patent?

Along with the development of science and technology, the concept of patents is continuously expanding. Patents are not simply known as tangible tools but also include processes intended to solve a defined problem by applying the laws of nature.

According to the definition of the World Intellectual Property Organization (WIPO), a patent is an exclusive right granted to a solution, product, or process, that offers a new way of doing something or offers a new technological solution to a problem.

From the perspective of practical law in Vietnam, the Intellectual Property Law stipulates that a patent is a technical solution in the form of a product or process to solve a problem determined by natural laws.

What is an inventor?

The inventor is the person who directly creates the invention, which becomes patent after the registration procedure completely. In case two or more people create an invention together, they are co-authors of the invention.

Rights of inventors

Creating an invention requires serious investment in terms of intelligence, energy, and time, so the law recognizes that the author of the patent has the following basic rights:

• Moral rights: include the right to have the author’s name written on the protection title and the right to be named in documents announcing and introducing the patent.
• Property rights: in addition to personal rights, the inventor also has property rights, which is the right to receive remuneration to pay for the inventor’s creative efforts and investment costs. The inventor has the right to receive remuneration throughout the term of patent protection. The law does not set a specific remuneration level for each invention because each invention is created with different methods, stages, and creativity. Normally, the remuneration level is agreed upon by the inventor himself with the owner, however, to protect the interests of the inventor, the law also stipulates the minimum remuneration level that the patent’s owner must be paid to the inventor. Accordingly, the minimum remuneration is calculated as follows:
• 10% of the profits earned by the owner from using the patent; and
• 15% of the total amount the owner receives each time payment is received due to licensing of the patent.

In case a patent has multiple authors, the authors shall mutually agree on the division of remuneration paid by the owner. The owner fulfills the obligation to pay remuneration to the author during the term of patent protection.

What is a patent owner?

Invention owners are organizations or individuals who have been granted an invention protection title by a competent state agency (or have registered for an international protection title and been recognized by a competent authority).

The owner of an invention can also be the person to whom ownership of the invention is transferred according to an invention ownership transfer contract signed by a competent state agency.

Rights of the patent owner

Unlike the inventor, the patent owner does not have personal rights but only property rights. Those rights include:

The right to use or permit others to use the patent

This right allows the patent owner to directly use the invention in his or her production and business activities. At the same time, the law also gives the patent owner the ability to give others the right to own the patent, the owner has the right to transfer the right to use the patent to others for exploitation according to the agreement within the warranty period.

The right to prevent others from using the patent

In addition to giving others the right to use the patent, the patent owner also has the right to prohibit others from using their patent. However, this right is not absolute because there are some exceptions prescribed by law.

Right to dispose of patents

The owner of the invention has the right to dispose of the invention such as transferring, giving away, or bequeathing the invention. The disposition must be made through a written contract, according to the order and procedures prescribed by law.

Temporary rights to patents

Patents have a unique characteristic: creativity. It can be seen that to receive patent protection, the investor must apply for registration with a competent state agency. To protect the legitimate rights and interests of patent applicants during the patent registration term, the Intellectual Property Law allows patent applicants to have temporary rights to the invention, i.e. if other people use the invention stated in the application for commercial purposes, the patent applicant has the right to notify them and request them to stop using this invention.

Summary table to compare the status of the inventor and patent owner

Some related questions about inventors and patent owners

Can the inventor and the patent owner be the same person?

Inventor and patent owner are different terms. However, the inventor can also be the owner of the patent in case the inventor registers the invention at a competent state agency and is granted a patent protection title for this invention.

How is the transfer of patent use rights conducted?

The transfer of rights to use an invention must be done through a written contract, which can be:

• Assignment/transfer contract (within the scope and term of the transfer, the licensee has the exclusive right to use the invention, the assigner is not allowed to sign a patent contract with any third party and can only mechanism if permitted by the assignee);
• Licensing contract (within the scope and term of transfer of use rights, the licensor still has the right to use the industrial property object, and the right to sign a non-exclusive contract to use the industrial property object with others).

What actions are considered to infringe the rights of the patent owner?

The following acts are considered to infringe the patent right:

• Using a protected invention within the validity period of the protection title without the permission of the owner.
• Using a patent without paying compensation according to regulations.

Customers who need advice on the compare the status of the inventor and patent owner under Vietnamese law, registering a patent in Vietnam, please contact Viet An Company for the best support.