Author of inventions, rights and obligations thereof in Vietnam.
The author of an invention means the person who has personally created such invention. Where two or more persons have jointly created an invention, they shall be co-authors of it.
The author of an invention is entitled to moral rights (i.e. To be named as authors in invention patents; To be acknowledged as authors in documents in which inventions are published or introduced) and economic rights (i.e. to receive remuneration from patent owner as provided.
Patent owner shall be obliged to pay remuneration to the authors of such inventions throughout the term of protection thereof. Unless otherwise agreed upon by the parties, the minimum level of remuneration payable by a patent owner to an author shall be regulated as follows:
(a) Ten (10) per cent of the profit gained by the owner from the use of the invention, industrial design or layout design;
(b) Fifteen (15) per cent of the total amount received by the owner in each payment for licensing of the invention, industrial design or layout design.
Where an invention is jointly created by more than one author, the minimum remuneration level as statutorily provided in Vietnam shall be applicable to all co-authors. The co- authors shall agree between themselves on the division of the remuneration paid by the owner.
Patent owner, rights and obligations thereof in Vietnam
Patent owner in Vietnam: The owner of an invention in Vietnam means an organization or individual who is granted an invention Patent by the IP Office of Vietnam.
Rights conferred to patent owner in Vietnam: A patent owner in Vietnam has the following rights:
(i) to use or authorize others to use the invention patented in Vietnam;
(ii) to prevent others from using the patented invention in Vietnam and (iii) to depose of the patented invention.
A patent holder in Vietnam has the exclusive right to make use his/her patent, has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. Licensing a patent is possible in Vietnam, meaning that the patent owner grants permission to another individual/organization to make, use, sell etc. his/her patented invention. This takes place according to agreed terms and conditions for an agreed period of time in return for “royalty” payments.
A patent owner may grant a license to a third party for different reasons. The patent owner may not have the necessary manufacturing facilities, for example, and therefore opts to allow others to make and sell his/her patented invention in return for “royalty” payments. Alternatively, a patent owner may have manufacturing facilities, but they may not be large enough to cover market demand. In this case, he/she may be interested in licensing the patent to another manufacturer in order to benefit from another income stream. Another possible situation is one in which the patent owner wishes to concentrate on one geographic market; therefore the patent owner may choose to grant a license to another individual/organization, with interests in other geographical markets. Entering into a licensing agreement can help to build a mutually-beneficial business relationship.
Unlike selling or transferring a patent to another party, the licensor continue to have property rights over the patented invention.
Once patented in Vietnam, the patent holder has rights to enforce his/her patent rights under administrative and/or civil or criminal route under the laws of Vietnam.
Obligations of patent owner in Vietnam: The patent owner has obligation to: (1) pay remuneration to the author(s) of invention; (2) pay the annuity or renewal fee for maintenance or renewal of the patent; and (3) use or license the patented invention to another person based on decision of the Vietnamese State administrative authority (under compulsory license proceeding).
