Tiếng Việt| THE GOVERNMENT |
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| No. 31-CP | |
ON INNOVATIONS TO EFFECT TECHNICAL IMPROVEMENT AND RATIONALIZATION IN PRODUCTION AND ON INVENTIONS
(Promulgated by Government Decree No 31-CP of January 23, 1981 as amended by Government Decree No 84-HDBT of March 20, 1990 of the Council of Ministers)
Considering that innovation to effect technical improvement and rationalization in production (shortly referred to as innovations) and inventions which, under this Ordinance, mean the result of the scientific - technical creative work of the workers in their capacity as the masters of communities, have an effect on the promotion of the technological progress and have great value for the benefit of the economy, society so as to contribute to the development of national economy, to strengthen national defense and to raise the standard of living of the people; Desirous to encourage and assist the nationals in making and applying innovations, inventions to organize and manage in a planned manner the administration of activities relating to innovations, inventions and, in close collaboration with social organizations, in particular with the Labour Union and the Ho Chi Minh of Communist Youth, to organize and develop the mass movement of making and applying innovations, inventions; Desirous further to protect the right of innovators, inventors;
This Ordinance defines "innovation" and "invention"; lays down the right of creators and persons who apply innovations, inventions; the responsibility and competence of state organizations, enterprises, socialist economic organizations and persons in relation to the making and application of innovations, inventions.
INNOVATIONS TO EFFECT TECHNICAL IMPROVEMENT AND RATIONALIZATION IN PRODUCTION
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a- engineering designs, equipment's, working instruments, products designed project or structure of construction etc...
b- the characteristics, use or composition of raw materials, materials, products, etc....
c- methods for research or designing processes, the building of constructions, planing or breading techniques methods for the prevention, treatment of diseases, etc...
d- the organization of production for rationalizing the use of manpower, working instrument, raw materials, energy and finial resources.
A solution shall be considered new if, prior to the date of registration, it has not been :
- applied by the organization, unit or put in its plan as to be applied;
- made known in written form by higher administration or disseminated in technical literature published by locality or branch concerned in such manner that the realization thereof could be made;
- confirmed directly by organization, unit or by the higher administration as imposed obligations, like standards, rules, norms, etc...
- identical with any earlier of registered solution.
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Part B: FILING APPLICATION, EXAMINATION AND CERTIFICATE GRANTING
(2) Where several persons have filed, independently of each other, the applications for the solutions the subject matter of which is the same, the person who has filed the earliest application shall be considered innovator.
(2) Within a period of one month counted from the date of the receipt of the application for a certificate innovation, the organization, unit shall examine it and shall decide whether or not to recognize the claimed solution as an innovation.
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(2) Where several persons have jointly made a solution being considered innovation (hereinafter referred to as joint innovator) each of them shall be granted the certificate for innovation where all the joint innovators are named.
(3) The innovator shall enjoy the rights provided for in Chapter IV of this Ordinance.
(4) When having refused to recognize the claimed solution as an innovation the organization, unit shall have the obligation to notify the applicant of the reason therefor and shall not have the right to apply that solution.
(5) The procedure of filing applications, the examination, the grant of certificates for innovation shall be laid down by the State Committee for Science and Technology.
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(2) A technical solution shall be considered as involving an inventive step if it is the result of creative work and could not be obviously deducible from the prior art available at the priority date of the patent application.
(3) A technical solution shall be considered applicable if the subject matter thereof can be made or used under prevailing or future technical conditions.
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The following shall not be considered invention:
- scientific principles;
- economic management methods and systems;
- educational, teaching, training methods and systems;
- designs and planning schemes for constructions, projects for regional development and planning;
- solution concerning only the shape of articles, intended to create an aesthetic impression;
- signs, diagrams, symbols;
- computer programs, integrate circuits;
- plant or animal varieties, microorganisms;
- processes for the prevention, diagnosis, treatment of diseases in human beings, animals or plants;
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Part B. PROTECTION OF INVENTIONS
The patent shall recognize the technical solution as an invention, the owner of the patent and his ownership right to the invention, the inventor or his right.
(2) A patent shall lapse before the expiration of the term in the following cases:
- the owner of the patent submits to the National Office on Inventions a written declaration for the surrender of the patent;
- the owner of the patent does not pay the prescribed annual maintenance fee.
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(2) For the purpose of this Ordinance, "to work" an invention means:
- making a product when the patent has been granted in respect of that product;
- using, importing, advertising or distributing a product when the patent has been granted in respect of the product;
- using a process when the patent has been granted in respect of that process.
(3) The assignment of the ownership right to, or the right to work an invention as provided in Subsection 17 (1) shall be effected by means of a written contract in accordance with the provisions laid down by Ordinance on Licensing promulgated by Government Decree No 201 – HDBT of December 28, 1988 of the Council of Ministers.
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(2) The following acts shall not be deemed as infringement of the right of the owner of the patent:
- using the invention not for commercial purposes;
- distributing or using a product which has been put on the market by the owner of the patent, the prior user as provided in Section 21, the assignee of the right to work the invention as provide in Section 22 or the authorized person in respect of the authorization granted by the Chairman of the State Committee for Science and Technology as provided in Section 20;
- using the invention on foreign transportation means which, in transit or temporarily, are on the territory of Vietnam provided that the invention is used exclusively for the operation of those means.
The owner of the patent shall have the obligation to :
- work, or assign the right to work, the invention on the
- pay the annual fee for maintaining the patent prescribed by the State Committee for Science and Technology;
- pay the inventor the royalty as provided in Chapter IV, part A of this Ordinance.
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b- the working of the invention requires to work an other invention however the owner of the patent refuses, without justified grounds, the assignment of the right to work the invention to the requesting organization or person;
c- the working of the invention is found to be necessary to meet the requirement of national defense, security, public health or other vital public interests.
(2) The organization or person desiring the authorization for working an invention as provided in Paragraphs 20(1)(a), (b) shall file with the State Committee for Science and Technology the request wherein the needs to work the invention, the ability to work the invention and the benefit derivable from the working of the invention must be clarified and the fact that the owner of the patent has, without justified grounds, refused the assignment of the right to work the invention
must be proved.
(3) The organization or person having been authorized by the Chairman of the State Committee for Science and Technology for working a patented invention shall pay the owner of the patent an amount on the basis of agreement with the owner of the patent. In case no agreement has been reached on the payment, the organization or person authorized for working the invention and owner f the patent may request the court to settle the matter.
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The inventor shall have the right:
a- to be named as such in the patent and related published scientific, technical documents;
b- to be paid royalty by the owner of the patent as provided in
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The filing of the patent application for an invention abroad shall be permitted only after the patent application for that invention has been filed in Vietnam and the applicant has received the notification of acceptance of application issued by the National Office on Inventions except the case where otherwise provided for in the international treaties to which Vietnam is party.
(2) Organizations which, or person who, are not domiciled or have neither functioning establishment nor agency in
Part C: FILING OF PATENT APPLICATION
(1) The right to file the patent application shall belong to the inventor or his successor in title.
(2) In respect of inventions made in execution of commissions within the filed of activity of state organizations, state or collective economic establishments (hereinafter referred to as organization, unit), the right to file the patent application shall belong to the organization. unit employing the inventor of the invention has been made within the responsibility of the inventor or the employing organization, unit has invested capital and equipment for the making of the invention (hereinafter referred to as service invention). The right to file the patent application shall, however, belong to the inventor, within a period of two months counted from the date at which the inventor submitted to the employing organization, unit his report on the fact that the solution he made could be protected as an invention, the employing organization, unit has not filed the patent application.
(3) Where an invention has been made in execution of a contract for performance of scientific research or technical development, the right to file the patent application shall belong, in the party having commissioned the work.
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(5) The right to file the patent application may be assigned to other organization or person by mean of written document.
(2) The procedure for the preparation and filing of patent applications shall be laid down by the State Committee for Science and Technology.
(1) The priority right to the patent application shall be determined by priority date.
(2) The priority date shall be, in the absence of a declaration claiming an earlier priority date provided for in Subsection (3) of this Section, the date at which the acceptable application is filed with the National Office on Inventions.
(3) The applicant may claim a priority date earlier than the filing date of the acceptable application in the following case:
a- When invention has been displayed on an official, or accepted as such, international exhibition held in one of the countries party to the Paris Convention for the Protection of Industrial Property and, in this case, the priority date shall be the date of display of the invention on the exhibition if the patent application is filed within a period of six months counted from that date.
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(4) The application wishing to claim a priority date provided for Subsection (3) of this Section shall specify it in the patent application and, within period of three months counted from the filing date of the patent application, to furnish to the National Office on Inventions the necessary documents for justifying the legality of the request.
Part D: EXAMINATION OF PATENT APPLICATION,GRANT OF PATENT AND PUBLICATION
(2) If, within a period of one month counted from the date of receipt of the notification, the applicant has not furnished the required corrections, complement, the application shall be deemed not having been filed.
(2) On the basis of the examination report, the Director of National Office on Inventions shall decide whether or not to grant the patent to applicant. In case of the refusal of the grant of the patent, the National Office on Inventions shall notify the applicant the reason therefor.
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(2) The application shall be no longer the subject of examination if, within a period of one month counted from the date of receipt of the request made by the National Office on Inventions, the applicant has not submitted the amendment, complementary documents for clarifying the essence of the solution described in the application.
In case the complementary documents change the essence of the solution, the procedure for filing application shall be recommenced.
field of professional activity.
The publication of the patented invention shall contain: the title,the abstract of the invention, the name of the inventor, the name of the owner of the patent, the filing date, the priority date, the date of the grant of the patent and other information that the National Office on Inventions considered necessary.
(2)Any organization or person may, after the patented invention has been published, inspect the description of the invention.
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(2) The technical fields relating to national defense and security where the inventions are to be kept in secret as provided in Subsection (1) of this Section shall be specified by the Minister of National Defense.
Ministers, Chairmen of State Committees, heads of organizations subordinated directly to the Council of Ministers may request the keeping in secret of inventions relating to their field of activity.
(2) In respect of secret inventions, the procedure of the filing, examination of patent applications, the grant of patents, the publication of inventions shall be laid down by the State Committee for Science and Technology and Minister of Defense in consultation with the Ministry of Interior.
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(2) The application of any innovation, invention to the production or other activities shall be the subject of the decision shall contain the date at which the application commences, the names of persons, groups engaged therein, the new economic technical standards, norms.
(3) In case the application of innovation, invention changes the prevailing standards, norms, the organization, unit shall have the obligation to examine and to adjust for rendering them reasonable.
In case the application of an innovation, invention raises the productivity, the person engaged in the application referred to in Subsection (2) of this Section shall be paid the salary and remuneration calculated according to the standards, norm previously in force, for a period of, at most, six months from the commencement of the application.
(2) Branches, localities shall have the obligation to organize the information service relating to innovation, inventions in organizations, enterprises of their branches, localities.
(3) The State Committee for Science and Technology shall organize the patent information system throughout the country.
In case of inventions of great value, the State Committee of Science and Technology shall communicate relevant information or proposals to the State Committee for Planning, branches, localities for the consideration and inclusion thereof in plans for advanced technology application.
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Part A: ROYALTY OT INNOVATORS, INVENTORS
(2) In the absence of agreement to the contrary in the employment contract, the royalty due to the inventor may not be less than eight percent of the profit derived from the working of the invention. In case of the assignment of the right to work the invention, the amount obtained from the sale of the license, deducted by related expenses shall be considered profit.
(1) State organizations, units, economic collectives when working an innovation and making profit shall pay royalty to the innovator.
(2) The amount of royalty due to the innovator shall be calculated for the first year of the application and may not be less than five percent of the profit made.
(1) The amount of royalty due to the innovator shall be paid within a period of one month after the first year of the application of the innovation. For the purpose of encouraging the innovator, the organization, unit which applies the innovation may, at the every beginning of the application, pay the innovator, in advance, an amount of royalty which is to be considered part of the total amount due to the innovator after the first year of application.
(2) The royalty due to the inventor shall be paid within a period of two months counted from the end of each year of application or from the receipt of payment derived from the sale of license.
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(2) Where the application of an innovation or invention changes the design, the execution of a construction work, the amount of royalty due to the innovator or inventor shall be determined according to the instructions of the Ministry of Construction and State Committee for Science and Technology.
(2) The amount of royalty in case of an innovation referred to in subsection 44 shall be determined by the organization, unit applying the innovation.
Part B: MEASURES FOR ENCOURAGEMENT OF INNOVATORS, INVENTORS
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(2) Organizations, units, branches at all levels may apply preferential treatment to innovators, inventors when considering their material interests such as promotion of salary, professional grade or housing, training, improving qualification.
a) Research for making solutions to specific technical problems or production management problems which are important and urgent for the organization, units;
b) Introduction of registered innovations or patented inventions made by their organization unit to apply in the production, activities.
(2) Solutions which have been made in execution of contracts referred to in Paragraph 47 ( 1/ a) shall be considered innovation. In addition to the royalty fixed in the contract, heads of organizations, units may apply other forms of remuneration, encouragement to innovators.
Part C: ENCOURAGEMENT OF ASSISTANT ACTIVITIES IN MAKING,APPLICATION OF INNOVATIONS, INVENTIONS
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(2) The amount of remuneration due to the assistants of innovators, inventors or to the participants in the first application of innovations, inventions shall be covered by the profit derived from the application of innovations, inventions and paid at the same time of the payment of royalty to the innovators, inventors after the first year of application.
(3) When making the decision on the payment of remuneration to each of the above mentioned persons, shall be taken into account:
a/ The volume and the complexity of tasks the accomplishment of which he engaged in;
b/ The initiative he has shown for accelerating the process of the making and application of the innovation, invention.
SETTLEMENT OF APPEALS, DISPUTES, INFRINGEMENT PROCEEDINGS
a/ The application for certificate of innovation has not been examined within the prescribed time limit;
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(2) Within a period of one month counted from the date of the filling of the appeal, the head of the organization, unit shall settle the matter. In case the appellant disagrees with the decision of the head of the organization, unit, he may appeals at each level may not be longer than one month. The decision of Minister, Chairmen of People's Committees of provinces or cities subordinated to the Central Government and the like shall be final in this respect.
(1) The applicant for patent may appeal to the Director of the National Office on Inventions if he:
a/ disagrees with the reasons for rejecting the patent application;
b/ disagrees with the reasons for refusing the grant of the patent;
c/ disagrees with the claims formulated by the National Office on Inventions.
(2) Within the term of validity of the patent, any organization or person may appeal to the Director of the National Office on Inventions against the grant of the patent for the reason that the requirements provided for in Sections 10, 11 and 13 of this Ordinance were not fulfilled.
The appellant shall pay the fee prescribed by the State Committee for Science and Technology.
(3) Within a period of three months counted from the receipt of the appeal referred to in Subsection 50(1), (2), the Director of the National Office on Inventions shall settle the matter and notify the appellant of the outcome of the settlement.
In case of disagreement with the decision made by the Director of the National Office on Inventions with respect to the settlement of the appeal, any party concerned may appeal to the Chairman of the State Committee for Science and Technology.
The decision of the Chairman of the State Committee for Science and Technology shall be final in this respect.
(4) On the basic of the outcome of the settlement referred to in Subsection 50(3), the Director of the National Office on Inventions shall effect the procedure of the grant of patent, the amendment of claims, the maintenance or the invalidation of the granted patent.
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Within a period of three months counted from the receipt of the appeal, the Director of the National Office on Inventions shall settle the matter and notify the appellant of the outcome of the settlement.
In case of disagreement with the decision made by the Director of the National Office on Inventions, any party concerned may, within a period of three months counted from the receipt of the notification of the decision, request the court of the province or city subordinated to the Central Government to settle the matter.
(2) On the basic of the settlement of the appeal accepted by the parties concerned, or on the basic of the final judgment of the court, the Director of the National Office on Inventions shall effect the procedure of the maintenance, the amendment or the invalidation of the granted patent.
Before to applying to the court for instituting court proceedings, the owner of the patent may request the competent authorities to grant the infuntion to make the infringing organization or person discontinue the acts of infringements.
(2) In respect of disputes arising from the fields of industrial property where one or both party is foreign organization or person, the party concerned shall have the right to apply to the court of Hanoi or
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Time limit for settlement of the appeal at each level may not be longer than two months from the receipt of the appeal. The decision of the Ministers, Chairmen of State Committees, heads of Organizations subordinated directly to the Council of Ministers, Chairmen of People's Committees of provinces or cities subordinated to the Central Government and heads of administrative organizations of ministerial rank shall be final in this respect.
(2) Inventor has the right to apply to the court of province or city subordinate to the Central Government for instituting court proceedings against the owner of the patent in case the latter does not pay the royalty or does not respect the schedule of payment.
Before instituting court proceedings, the inventor may request the competent authorities to take appropriate measures for forcing the owner of the patent to pay him the royalty according to provision laid down by the State.
ORGANIZATION AND MANAGEMENT OF ACTIVITIES RELATING TO INNOVATIONS, INVENTIONS
(2) Ministries, organizations of ministerial rank, organizations subordinated directly to the Government Council, People's Committees of provinces and cities subordinated directly to the Central Government shall be entrusted with the organization, management and administration of activities relating to innovations, inventions in their own branch or territory.
The scientific, echnical administrative bodies within branches or localities shall have the obligation to assist the head of branches, People' Committees of localities in performing their duties.
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The scientific, technical administrative bodies of organizations, units shall have the obligation to assist the head of organizations, units performing their duties and appoint a cadre or a group in charge of administration of activities relating to innovations, inventions.
(4) State organizations, enterprises may establish consultative commission in charge of assisting the heads of organization, units to perform their duties in respect of organization, management of activities relating to innovations, inventions (shortly referred to as commission for innovations, inventions).
Administrative organizations of branches, people's committees of provinces may, according to the actual situation, establish commission for innovations, inventions of their own.
Part B: FINANCING OF ACTIVITIES RELATING TO INNOVATIONS, INVENTIONS
(2) Expenditures for experimentation and application of innovations, inventions shall be covered by:
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- funds assigned to scientific, technical research;
- funds assigned for administrative organizations.
(3) The expenditure in respect of remuneration's, promotion of activities relating to innovations, inventions shall be taken:
(a) in case of production or trade units, from the profit derived from the application of innovations, inventions;
(b) in case of administrative or managing or organ, from the expenditure set aside for administration or scientific, technical research.
(4) The procedure for the drawing up the budget, accounting and making the balance sheet in relation to expenditures refereed to in subsection (1) of this Section shall be set forth by the Ministry of Finance and the State Committee for Science and Technology.
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This Ordinance shall enter into force on the date of its signature.
Provisions relating to the payment of remuneration in respect of innovations, inventions which are contrary to this Ordinance shall be repealed.