Who is entitled to register a patent in Vietnam?

Patent registration is an administrative procedure conducted by the National Office of Intellectual Property to confirm a certain subject’s ownership rights to an invention. Ownership of an invention is established only through a registration procedure. However, subjects having the right to register a patent is still a question that many people still wonder. Viet An Law hereby will provide you with information about who is entitled to register a patent in Vietnam.

Legal basis

Law on Intellectual Property 2005, as amended and supplemented 2009, 2019, 2022;

What is an invention?

An invention is a technical solution in the form of a product or process intended to solve a specified problem by the application of natural laws.

Why do you need to register a patent?

Protecting intellectual property rights for inventions is a very important step. This helps the owner of the invention to establish his monopoly on the invention, preventing patent infringement. Furthermore, Viet An Law will give some other reasons for you to get a more general view of why owners have to register for patents:

• Patent registration helps owners increase competitive advantage, and market power and earn more profits. Patents allow the owner to assert before wholesalers and distributors that no other entity in the market is allowed to manufacture, trade, use, or distribute the product without the consent of the owner. This can reduce competition, and increase sales, and if marketed properly, owners can charge higher prices for products because other competitors have been barred from offering similar products. on one’s own.
• Patent creates a new source of income for the owner by licensing the invention or transferring the invention. Being granted a patent for an invention makes it easy for the owner to exploit the commercial value of that invention. When the owner is certified by the State to have legal ownership of the invention, the owner will receive the trust of the buyer when transferring that invention.
• Patents help owners raise capital and attract potential investors. Patents can be bought, sold or transferred to help owners raise capital easily, quickly and efficiently. Patents can also be used as collateral for bank loans.
• Contributing to human creativity and enhancing the value and position of the patent owner. Business partners, investors and shareholders may perceive patent property as a manifestation of the expertise, specialization and high technological capabilities of the individual or business patent owner. Especially for businesses as patent owners can use these innovative products of their own to raise capital, find new business partners and increase the value of the business in the market.

Who is entitled to register a patent in Vietnam?

Case 1: The author creates an invention with his own effort and expense

In this case, the inventor of the invention will be the person who is entitled to register the invention. At this time, the inventor is also the owner of the invention. Where two or more people jointly directly create an industrial property object, they are considered co-authors and will enjoy the same moral and property rights. Specifically:

Regarding personal rights: Authors will be listed as authors in the Patent and will be named as authors in published and introduced documents about the invention.

Regarding property rights: Authors will have the right to:

• Use, license to others use the patent to: manufacture a product (if the invention is a finished product); apply the process (if the invention is a process); exploit the utility of the invention; circulation, advertising, offering, storing to circulate products,…
• Prohibit other people from using the invention, except for the following cases: using the invention for non-commercial purposes, for evaluation, research, teaching; using the invention for the purpose of maintaining the operation of means of transport abroad that are temporarily transiting within the territory of Vietnam;

Case 2: Organizations and individuals invest funds and material means for authors in the form of job assignments or hiring

In this case, the organization or individual investing funds will act as the owner of the invention and have the right to register the invention, unless otherwise agreed by the parties. The owner of the invention will have the right to use, and allow others to use the invention as well as prohibit the use of his invention (specifically analyzed in case 1).

However, in addition to the rights, the owner will have an additional obligation to pay remuneration to the inventor. In case the two parties do not have an agreement on the level of remuneration, the remuneration will be divided according to:

• 10% of the pre-tax profit earned by the owner from using the invention;
• 15% of the total amount received by the owner in each payment due to the licensing of the patent;
• In the case of inventions with co-authors, the authors will have to divide the remuneration paid by the owners themselves;
• The obligation to compensate the inventor of the invention shall persist for the duration of the patent’s protection.

Note: In case many organizations and individuals jointly create or invest to create an invention, these organizations and individuals have the right to register and that right of registration will only be exercised if approved by all.

Case 3: The invention is the result of a scientific and technological task created with the contribution of the State

• With inventions created with 100% of the state budget, the right to register the invention will be automatically assigned to the host organization and will not be reimbursed unless the invention is in the field of national defense and security. In this case, the right to register the invention shall belong to the State;
• With inventions invested by many capital sources, including a part of the state budget, the part of the right to register a patent corresponding to the proportion of the state budget will be automatically assigned to the lead organization and no reimbursement except for the case of inventions in the field of national defense and security, the part of the right to register inventions corresponding to the part of the state budget will belong to the State.

Similar to case 2, the owner in this case will also be obliged to pay compensation to the inventor, specifically:

• From 10% to 15% of the pre-tax profit that the owner earns from using the invention;
• Between 15% and 20% of the total amount received by the owner before tax in each payment due to the licensing of the patent;
• In the case of inventions with co-authors, the authors will have to divide the amount of the remuneration paid by the owners themselves;
• The obligation to compensate the inventor of the invention shall persist for the duration of the patent’s protection.

In case the owner is a leading organization, the owner will have 2 additional obligations:

Obligation to use inventions (Article 136 of the Intellectual Property Law)

• The patent owner is obliged to manufacture the protected product or apply the protected process to meet the needs of national defense, security, disease prevention, treatment, nutrition for the people, or other urgent necessities of society.
• When having the above needs, but the invention owner fails to fulfill such obligation, the competent state agency may transfer the right to use the invention to another person without the permission of the patent owner.

Obligation to permit the use of the basic invention to use the dependent invention (Article 137 of the Intellectual Property Law)

• A dependent invention is an invention created on the basis of another invention (hereinafter referred to as a basic invention) and can be used only on condition that the underlying invention must be used.
• In the event that it is demonstrated that the dependent invention constitutes an important technical advance over the basic invention and is of great economic significance, the owner of the dependent invention has the right to request that the owner basic patent licensing at reasonable commercial prices and terms.

At this time, if the owner of the basic invention fails to satisfy the request of the dependent invention owner without a plausible reason, the competent state agency may transfer the right to use that invention to the owner of the dependent patent without the permission of the underlying patent owner.

The above content is Viet An Law’s advice on the question of who entitled to register a patent in Vietnam. If you have any questions, please contact us for the most specific advice!