Circular No. 18/2013/TT-BKHCN guiding the implementation of certain provisions of the Invention Regulation issued pursuant to Government Decree No. 13/2012/NĐ-CP dated March 2, 2012.

CIRCULAR
Guidelines for implementing certain provisions of the Regulation on Inventions issued

pursuant to Decree No. 13/2012/NĐ-CPdated March 2, 2012 of the Government.Deputy ministers of ministerial-level agencies,

Pursuant to Decree No. 20/2013/NĐ-CP dated February 26, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

Pursuant to Decree No. 13/2012/NĐ-CP dated March 2, 2012 of the Government promulgating the Regulation on Inventions.

The Minister of Science and Technology issues guidelines for implementing certain provisions of the Regulation on Inventions issued pursuant to Decree No. 13/2012/NĐ-CP dated March 2, 2012 of the Government (hereinafter referred to as "Regulation on Inventions") as follows:

Article 1. Scope of Regulation

These Circulars provide guidance on implementing certain provisions regarding conditions, procedures for recognizing inventions, the application and transfer of inventions, agreements on payment of remuneration to the authors of inventions and participants in the initial organization of applying inventions, and responsibilities for implementing measures to manage and support invention activities of relevant agencies and organizations.

Article 2. Entities with the right and responsibility to recognize inventions

Entities specified in Clause 4, Article 2 of the Regulation on Inventions have the right and responsibility to recognize inventions, including:

1. Legal persons, that is, organizations meeting the conditions stipulated in Article 84 of the Civil Code, specifically:

a) Legally established;

b) Having a sound organizational structure;

c) Having independent assets separate from those of other individuals or organizations and being independently liable for such assets;

d) Independently participating in civil legal relations in their own name.

2. Units without legal person status but capable of independently participating in civil legal relations in their own name (for example: family households, cooperative groups, individual businesses, private enterprises, law offices...).

3. Units with their own seals and separate accounts, economically dependent on higher-level legal entities (for example: branches of enterprises, centers subordinate to state-owned corporations or holding companies), and authorized by higher-level legal entities in writing or internal regulations to recognize inventions at their units (for example: regulations on invention activities at the entity).

Article 3. Objects recognized as inventions

Objects recognized as inventions include technical solutions, management solutions, operational methods, or applications of technological progress that meet the conditions stipulated in Article 3 of the Regulation on Inventions. Technical solutions, management solutions, operational methods, or applications of technological progress are understood as follows:

1. Technical solutions are technical methods or means aimed at solving a specific task (a specific problem), including:

a) Products in various forms: physical objects (for example: tools, machines, equipment, components); substances (for example: materials, substances, food, drugs, cosmetics); biological materials (for example: microbial strains, biological preparations, genes, genetically modified plants and animals); or plant and animal breeds;

b) Processes (for example: technological processes; diagnostic, forecasting, testing, treatment processes, livestock and crop farming techniques; diagnostic and treatment processes for humans, animals, and plants...).

2. Management solutions are organizational and administrative methods for managing work in any field of activity, including:

a) Methods of organizing work (for example: arranging human resources, machinery, equipment, tools, raw materials, materials);

b) Methods of supervising and monitoring work.

3. Operational methods include methods of performing technical and business operations in any field of activity, including:

a) Methods of handling administrative procedures (for example: receiving and processing files, letters, documents);

b) Methods of appraisal, inspection, consultation, evaluation;

c) Methods of propaganda, training, teaching, instruction;

d) Methods of animal training; ...

4. Applications of technological progress are methods, approaches, or measures to apply known technical solutions to practice.

Article 4. Unrevealed solutions within the scope of the entity

A registered solution shall be considered unrevealed within the scope of the entity (as stipulated in point b, Clause 1, Article 4 of the Invention Regulation) if such solution has not been known and no other person's solution identical to it has been described in any form of documents, books, technical materials that can be publicly accessed within the entity, to the extent that it can be immediately implemented based on those descriptions.

Article 5. Application for Recognition of Invention

1. The provisions regarding the contents of the Application for Recognition of Invention at Clause 3, Article 5 of the Invention Regulation are specifically guided as follows:

a) Name of the entity requested to recognize the invention;

b) Inventor of the invention or joint inventors (if any) and the contribution ratio of each joint inventor;

c) Investor creating the invention: In cases where the inventor of the invention is not simultaneously the investor creating the invention, the application must clearly state who the investor creating the invention is, whether an agency, organization, or individual. If the invention was created due to State funding, equipment, and technical means, this information must be clearly stated in the application;

d) Name of the invention; field of application; description of the essence of the invention; information requiring confidentiality (if any):

- Name of the invention: Must reflect the essence of the solution in the application;

- Field of application: Clearly specify the fields in which the invention can be applied and the issues it resolves;

- Description of the invention:

+ Regarding the content of the invention: Briefly, fully, and clearly describe the steps to implement the solution as well as the necessary conditions to apply the solution; if it is an improvement on a previously known solution at the entity, clearly state the status of the previously known solution, the improved and innovative aspects, and how they address the shortcomings of the previously known solution. The description of the invention's content may be illustrated with drawings, designs, diagrams, photographs of sample products, etc., if necessary;

+ Regarding the applicability of the invention: Clearly state the application of the solution, including trial applications under economic and technical conditions at the entity and the tangible benefits achieved; additionally, specify the potential applicability of the solution to other entities, agencies, or organizations;

- Information requiring confidentiality (if any);

đ) Necessary conditions for applying the invention;

e) Participants in the initial implementation of the invention (if any);

g) Evaluation of the benefits obtained or expected to be obtained from implementing the solution in the application according to the opinions of the inventor and the organizations or individuals participating in the initial implementation of the solution, including trial applications at the entity, as follows:

- Comparison of the economic and social benefits obtained from implementing the solution in the application compared to the situation without implementing the solution, or compared to similar known solutions at the entity (clearly stating how the solution brings higher economic benefits and social advantages or addresses the shortcomings of previously known solutions to what extent - if it is an improvement on a previously known solution);

- Amount of profit generated (if calculable) and specifying the specific calculation method.

2. The Application for Recognition of Invention may follow the model prescribed in Appendix I attached to this Circular, except in cases where the entity receiving the application uses a different application form.

3. The inventor of the invention bears responsibility for the truthfulness of the information stated in the Application for Recognition of Invention.

Article 6. Acceptance, Examination of Applications and Recognition of Inventions

1. The acceptance and examination of applications for recognition of inventions shall be carried out in accordance with the provisions of Article 6 of the Invention Regulation and the specific provisions set forth below:

a) The receiving entity may record the application for recognition of invention in the Application Receipt Book (if available) and issue to the applicant a receipt for the application form (which can be made according to the model prescribed in Appendix II issued together with this Circular), indicating clearly the time limit for responding to the result of recognizing the invention as stipulated in Clause 1 of Article 7 of the Invention Regulation;

b) The receiving entity for applications for recognition of inventions has the responsibility to preserve and store the application and accompanying documents (if any); keep confidential information that needs to be kept secret at the request of the author of the invention.

2. Prior to deciding on the recognition of an invention, the entity examining the recognition of inventions decides independently on the public disclosure of the solution (except for information that needs to be kept secret at the request of the author of the invention), independently decides on the search for information on the status of intellectual property rights protection in accordance with the law to evaluate the invention based on the conditions specified in point b, Clause 2 of Article 3 of the Invention Regulation.

3. The entity examining the recognition of inventions issues a Certificate of Invention (which can be made according to the model prescribed in Appendix III issued together with this Circular) to the applicant who has been recognized as having an invention and independently decides on the public disclosure of the solution that has been recognized as an invention so that agencies, organizations, and individuals requiring the use of the invention can access relevant information about the invention.

4. The costs for implementing the examination of the recognition of inventions shall be implemented in accordance with the regulations of the Ministry of Finance.

Article 7. Examination and Approval of Recognition of Inventions Funded by the State

1. The provision at point b, Clause 4 of Article 7 of the Invention Regulation is understood as follows:

Among two entities, the Department of Science and Technology at the locality where the entity examining the recognition of inventions is located and the state agency or organization directly implementing the investment to create the invention, whichever entity receives (or receives earlier) the file as prescribed in Clause 2 of this Article shall take the lead in examining and approving the recognition of the invention and may request the other entity to cooperate in implementation.

2. The examination and approval of the recognition of inventions as prescribed in Clause 4 of Article 7 of the Invention Regulation shall be based on the file of the entity examining the recognition of inventions, which includes the following documents:

a) A document requesting approval of the recognition of the invention;

b) A copy of the application for recognition of the invention;

c) A report evaluating by the entity examining the recognition of inventions on whether the subject matter mentioned in the application meets all the conditions for being recognized as an invention as stipulated in Articles 3 and 4 of the Invention Regulation;

d) The conclusion of the Invention Council.

3. Within one month from the date of receipt of the file requesting examination and approval of the invention, the entity examining and approving the invention shall have the responsibility to examine and evaluate the recognition of the invention in accordance with the provisions of the Invention Regulation and this Circular to decide on approval or non-approval of the recognition of the invention, in case of non-approval, the reasons must be clearly stated.

4. Annually or upon request, the state agency or organization directly investing to create the invention shall have the responsibility to report and provide information related to inventions created through state-funded financial and material-technical means to the Department of Science and Technology at the locality where the entity examining the recognition of inventions is located (according to the model prescribed in Appendix IV issued together with this Circular).

Article 8. Initiative Council

1. The Initiative Council established according to Article 8 of the Initiative Charter shall consist of the Chairman of the Council, Vice-Chairman of the Council, Secretary Member, experts or persons with expertise in fields related to the content of the initiative, representatives of trade union organizations where the author is a member (if applicable), and other components as decided by the head of the entity recognizing the initiative. Decisions of the Council shall be adopted through voting or secret ballot with at least two-thirds of the members' agreement.

2. In cases where the initiative is created due to state funding for expenses and material-technical means, and the head of the entity recognizing the initiative is also the author of the initiative, then the head of the entity recognizing the initiative shall not be a member of the Initiative Council.

3. The funds allocated for the activities of the Initiative Council shall be implemented in accordance with the regulations of the Ministry of Finance.

Article 9. Certificate of Initiative

1. The Certificate of Initiative may be made according to the model prescribed in Appendix III attached to this Circular.

2. The Certificate of Initiative shall be issued to the author(s)/co-author(s) of the initiative and the investor who created the initiative (if the author of the initiative is not simultaneously the investor who created the initiative). The Certificate of Initiative serves as evidence that the initiative has been recognized by an entity according to the Initiative Charter.

3. Upon request from agencies, organizations, or individuals, the entity recognizing the initiative has the right to decide to revoke the recognition of the initiative and notify the author and the investor who created the initiative in the following circumstances:

a) The person submitting the application for recognition of the initiative is not the author of the initiative as stipulated in Clause 5, Article 2 of the Initiative Charter;

b) The object recognized as an initiative does not meet all the conditions prescribed in Articles 3 and 4 of the Initiative Charter, or the application and transfer of such object infringe upon the intellectual property rights of others.

Article 10. Application and Transfer of Initiatives

1. The investor creating the initiative and the author of the initiative have the right to apply and transfer the initiative to other organizations or individuals for application according to Clause 1 and Point d, Clause 2, Article 9 of the Initiative Charter, but they do not have the right to prohibit others from applying and transferring the initiative outside the entity.

2. Organizations or individuals applying the initiative must bear legal responsibility if the application of the initiative infringes upon the intellectual property rights of other organizations or individuals.

In cases where the investor creating the initiative and the author of the initiative transfer the initiative to another party for application, and the application of the initiative infringes upon the intellectual property rights of other organizations or individuals, then the investor creating the initiative and the author of the initiative (the transferring party) shall only be liable for compensating damages to the receiving party due to the application of the initiative, if there is such an agreement between the parties in the initiative transfer contract.

3. The author of the initiative does not have the right to apply or transfer the initiative to other organizations or individuals if there is such an agreement between the investor creating the initiative and the author of the initiative, as reflected in the following documents:

a) Contracts (for example: separate written agreements on the right to apply and transfer initiatives, investment contracts to create initiatives, service contracts, labor contracts, recruitment contracts...);

b) Regulations of the investor creating the initiative that the author, as an employee working in the agency or organization, must comply with (for example: regulations on the rights and obligations of employees, rules on initiative activities...).

In cases where there are differences in provisions among the documents mentioned in Points a and b of this clause, the provisions according to the agreement between the parties mentioned in Point a of this clause shall be applied.

4. The transfer of initiatives shall be carried out according to the agreement between the parties, in accordance with the regulations of civil contract law, technology transfer contracts, depending on the content of the agreement and the transferred initiative.

Article 11. Agreement on payment of remuneration to the author of an innovation and participants in the initial implementation of the innovation

1. The payment of remuneration to the author of an innovation and to participants in the initial implementation of the innovation as stipulated in Clause 1 of Article 10 of the Innovation Charter shall be carried out through agreements between the project sponsor who creates the innovation and the author, and between the project sponsor who creates the innovation and the participants in the initial implementation of the innovation, which means that the parties agree on whether or not to pay remuneration, the method of payment, the amount of remuneration, the time and deadline for payment, reflected in the following documents:

a) Contracts (for example: written agreements on payment of remuneration, investment contracts to create innovations, service contracts, labor contracts, recruitment contracts...);

b) Regulations of the project sponsor that the author and participants in the initial implementation of the innovation, who are employees working in the agency or organization, must comply with (for example: regulations on the rights and obligations of employees, rules on innovation activities...).

In cases where there are differences in provisions between the documents mentioned in point a and point b of this clause, the provisions according to the agreement between the parties mentioned in point a of this clause shall apply.

2. In cases where the parties have no agreement or cannot reach an agreement on payment of remuneration, the provisions of Article 10 of the Innovation Charter shall apply.

Article 12. Responsibilities for implementing measures to manage and support innovation activities

1. The Intellectual Property Office shall be responsible for assisting the Minister of Science and Technology in implementing the following measures to manage and support innovation activities:

a) Drafting and submitting to competent authorities for promulgation legal documents on innovation activities;

b) Propagating, disseminating, and organizing the implementation of policies and legal provisions on innovation;

c) Guiding organizations and individuals to proceed with procedures to register and establish industrial property rights for innovations that have the potential to be protected by industrial property rights;

d) Advising and supporting the provision of information to innovation authors in creating, perfecting, and exploiting innovations based on requests from innovation authors;

đ) Coordinating with the Vietnam Association for Science and Technology to jointly host, coordinate with the Vietnam General Confederation of Labor and the Communist Youth Union Ho Chi Minh Central Committee to implement measures to promote the movement of creative labor competitions and innovation activities, promoting the publication, dissemination, and widespread application of innovations that bring practical benefits to society created with state funding, material-technical means, purchased with state funds, or contributed to society by the innovation project sponsor; organizing nationwide summaries and rewards for innovation activities;

e) Coordinating with ministries, sectors, provincial People's Committees to implement measures to disseminate innovations as stipulated in Article 14 of the Innovation Charter.

2. Provincial Departments of Science and Technology shall be responsible for implementing the following measures to promote innovation activities in accordance with Articles 14 and 15 of the Innovation Charter:

a) Advising provincial People's Committees to promulgate detailed legal documents and guidelines for implementing the Innovation Charter to implement at the local level;

b) Propagating, disseminating, and organizing the implementation of legal provisions on innovation;

c) Coordinating with relevant agencies and organizations to take necessary measures to disseminate innovations and encourage the movement of creative labor competitions at the local level as stipulated in Article 14 and Clauses 1 and 2 of Article 15 of the Innovation Charter;

d) Leading and coordinating with local Science and Technology Associations (if any), Labor Unions, Communist Youth Union Ho Chi Minh, and local departments and sectors to organize summaries of local innovation activities as stipulated in Point b of Clause 3 of Article 15 of the Innovation Charter;

đ) Considering and deciding to approve recognition of innovations created with state funding, material-technical means, where the author is the head of the entity required to recognize the innovation as stipulated in Point b of Clause 4 of Article 7 of the Innovation Charter;

e) Guiding authors to proceed with procedures to register and establish industrial property rights for solutions that have the potential to be protected by industrial property rights;

g) Advising and supporting the provision of information to innovation authors in creating, perfecting, and exploiting innovations, guiding the submission of applications for recognition of innovations based on requests from innovation authors;

h) Reporting annually to the Ministry of Science and Technology (through the Intellectual Property Office) and the provincial People's Committee on the situation of recognizing, disseminating, and applying innovations at the local level (according to the form prescribed in Appendix V issued together with this Circular).

3. Ministries, ministerial-level agencies, government agencies, the Vietnam Association for Science and Technology, the Vietnam General Confederation of Labor, and the Communist Youth Union Ho Chi Minh Central Committee shall be responsible for reporting annually to the Ministry of Science and Technology (through the Intellectual Property Office) on the situation of recognizing, disseminating, and applying innovations, information on measures to encourage innovation activities in their respective fields of management (according to the form prescribed in Appendix VI issued together with this Circular).

Article 13. Dispute Resolution, Complaints, and Accusations

1. Disputes regarding the rights and obligations of the author of an innovation, the person participating in organizing the first application of the innovation, the investor creating the innovation, the entity requested to recognize the innovation, and the entity receiving the transfer of the innovation shall be resolved in accordance with the provisions of the Civil Procedure Law.

2. For decisions of state management agencies and actions of civil servants that violate regulations on state management of innovation activities, complaints and accusations and their resolution shall be carried out in accordance with the provisions of the Law on Complaints and Accusations.

Article 14. Effective Date

This Circular takes effect from September 25, 2013.

During the implementation process, if there are difficulties, please reflect them to the Ministry of Science and Technology for research, amendment, and supplementation to ensure appropriateness./.