Inventors and Patent Ownership Rights in Vietnam

(Distinction from Copyright – Other Objects of Intellectual Property)

A patent is one of the objects of industrial property rights. The industrial property rights of a patent include the rights of the patent author and the rights of the patent holder. The author of a patent has certain rights that are specifically defined in the Intellectual Property Law and its guiding legal documents. In the article below, Viet An Law Firm will provide general legal advice to clients regarding the author and the author’s rights in patents.

Patent in Vietnam

• According to the definition of the World Intellectual Property Organization (WIPO), a patent is an exclusive right granted to a solution that is either a product or a process, which offers a new way of performing or presenting a technological solution to a problem.
• From the perspective of Vietnamese law, the Intellectual Property Law stipulates that a patent is a technical solution in the form of a product or a process aimed at solving a defined problem by natural laws.
• To be eligible for protection, a patent must meet the following conditions:
  • Novelty;
  • Inventiveness;
  • Industrial applicability.

The Patent Author and Their Rights

A patent author is the person who directly creates the invention. In cases where two or more people collaborate in creating an invention, they are considered joint authors of the patent. All joint authors of a patent hold equal rights.

The law recognizes that the author of a patent has two primary types of rights: right to personal identity and property rights, as follows:

• Right to personal identity:
• The right to have the author’s name listed on the Protection Title – The Patent;
• The right to be mentioned in any publication or documentation that introduces or discloses the patent.
• Property Rights:
• This is the right to receive remuneration for the creative effort and investment costs. The patent author is entitled to receive remuneration throughout the term of the patent’s protection.
• The law does not specify a specific amount of remuneration for each patent, as each patent is created through different processes, methods, and levels of creativity. Typically, the remuneration is agreed upon by the author and the patent holder. However, in order to protect the author’s interests, the law also sets out a minimum remuneration that the patent holder must pay to the author:
• 10% of the profit the patent holder gains from using the patent;
• 15% of the total amount received by the patent holder in any payment for the transfer of patent usage rights.
• In the case where there are multiple authors of a patent, the authors must agree among themselves on how to divide the remuneration paid by the patent holder. The patent holder is responsible for paying the remuneration to the authors during the patent’s protection period.

Notes:

• For patents resulting from scientific and technological tasks funded by state budgets, the patent holder must pay the authors remuneration as follows:
• A minimum of 10% and a maximum of 15% of the pre-tax profit the patent holder receives from using the patent.
• A minimum of 15% and a maximum of 20% of the total amount received by the owner in each payment for the transfer of the right to use the patent, before tax in accordance with regulations.
• If there is no other agreement between the patent holder and the author, the remuneration payment must be made no later than 30 days after the patent holder receives the payment for transferring the patent usage rights or no later than 90 days after the end of the fiscal year if the remuneration is based on 10% of the pre-tax profit the patent holder gains from using the patent.

Protection Period for the Rights of a Patent Author

Pursuant to Article 35 of Decree 65/2023/ND-CP, the protection period for the rights of a patent author is as follows:

• The moral rights of the author are protected indefinitely.
• The right to remuneration of the author is protected throughout the patent’s protection period. For patents granted a patent certificate, protection lasts from the date of issuance until 20 years from the filing date. For patents granted a utility solution patent, protection lasts from the date of issuance until 10 years from the filing date.

Distinction Between Patent Authors’ Rights and Copyright in Other Intellectual Property Objects

Copyright within intellectual property includes the authors’ rights related to patents, industrial designs, trademarks, layout designs, and works of literature and the arts, among others. Among these, the authors’ rights related to patents, industrial designs, trademarks, and layout designs generally share similar characteristics. Therefore, Viet An Law will focus on distinguishing the authors’ rights for patents from the authors’ rights for other works.

Objects of Protection

• Patent author’s rights: The object of protection is the patent – a product or process created by humans that meets the criteria of novelty, inventiveness, and industrial applicability.
• Copyright for works: The object of protection includes literary, scientific, and artistic works.

Objects Excluded from Protection

• Patent author’s rights:
  • Natural laws, abstract ideas;
  • Objects excluded from protection as specified in Article 59 of the Intellectual Property Law.
• Copyright for works:
  • Creative ideas that are not expressed in any tangible form;
  • Objects listed in Article 15 of the Intellectual Property Law: news reports, legal documents, procedures, systems, methods of operation, concepts, principles, and data.

Grounds for the arising of rights

• Patent author’s rights: Arises upon filing an application with the Intellectual Property Office. The author’s rights for a patent are established based on the decision to grant a certificate of protection by the Intellectual Property Office under the Ministry of Science and Technology.
• Copyright for works: Automatically arises when the work is expressed in a tangible form. The author’s rights arise from the moment the work is created and fixed in a tangible form, regardless of its content, quality, form, medium, language, whether published or unpublished, or whether registered or not.

Duration of Protection

• Patent author’s rights: Patents are protected from the date of the issuance of the protection certificate and last for 20 years from the filing date. For utility solutions, protection lasts for 10 years from the filing date. Protection cannot be extended. After the protection period expires, the patents become public property, and the public may use them freely.
• Copyright for works: Right to personal identity is protected indefinitely. Economic rights are protected for the lifetime of the author plus 50 years after the author’s death. In cases where the work has multiple authors, the protection ends 50 years after the last surviving co-author’s death.

Note: For cinematographic works, photography, applied arts, and anonymous works, the protection period is 75 years from the first public release of the work. For cinematographic works, photography, and applied arts not published within 25 years from their creation, protection lasts for 100 years from the date the work is fixed. In the case of anonymous works, the protection period is calculated according to the general rules once the author’s information is revealed.

Protection Titles

• Patent author’s rights: Must be registered, published, and a protection certificate issued. The Protection Title is granted by the Intellectual Property Office under the Ministry of Science and Technology. Protection validity must be maintained annually.
• Copyright for works: There is no requirement for a Protection Title as the work is automatically protected. A Protection Title (Certificate of Copyright Registration) is issued by the Copyright Office under the Ministry of Culture, Sports, and Tourism.

Place of registration of Protection Titles

• Patent author’s rights: File an application with the Intellectual Property Office.
• Copyright for works: File an application for protection with the Copyright Office, or the work may be protected without registration, as copyright exists once the work is expressed in a tangible form.

International Protection

• Patent author’s rights: Can be registered and granted protection in specific countries under the Paris Convention, the TRIPS Agreement, and the Patent Cooperation Treaty (PCT).
• Copyright for works: Protected regardless of form of expression in multiple countries worldwide under the Berne Convention.

The above is an analysis of the patent author and their rights. If you have any further questions or need legal consultation regarding the relevant laws, please feel free to contact Viet An Law Firm for the best assistance!