Change in Security Control Over Inventions Under the Proposed Revisions of the IP Laws of Vietnam
Nguyen Thi My Huong and Nguyen Thi Thu Ha, Vision & Associates (Vietnam)
Security control over inventions, especially those proposed to be filed abroad, is a sensitive issue. Controversy over the issue has been prolonged over more than a decade in Vietnam. It is often complained that with the too tight security control regulations, the current IP laws of Vietnam are discouraging applications for patent grant in Vietnam, especially by those Vietnamese researchers who are living abroad, and overseas researchers working in Vietnam, due to concerns about the applicable security control and its consequences.
Under Article 23b.2, Decree 103/2006/ND-CP dated 22 September 2006, as revised in 2010, inventions of Vietnamese organizations and individuals, and inventions created in Vietnam shall not be protected by the Vietnamese Government if they are filed abroad without a prior filing in Vietnam, or before the expiry of the time period of 6 months from the said Vietnam filing. Also, overseas filing of IP applications of any type are prohibited if these inventions are classified as confidential under the Vietnamese laws on protection of state secrets.
Concerns are mostly about the broad-scaled terms “inventions of Vietnamese organizations and individuals” and “inventions created in Vietnam”. It is questionable whether “inventions of Vietnamese organizations and individuals” means inventions owned by Vietnamese organizations and individuals, or those with Vietnamese individuals as inventors, or both. Also, there is doubt about whether inventions partly created in Vietnam in collaboration with overseas researchers (overseas institutes or individual inventors) are categorized as “inventions created in Vietnam” and thus fall in the scope of the security control. Even the conjunction “and” between the two terms is controversial, whether only inventions satisfying both requirements “of Vietnamese organizations and individuals” and “created in Vietnam” are subject to this regulation, or arguably, meeting just one requirement shall suffice.
Despite many discussions and debates, all those questions have received no official answers from the authority of Vietnam as no further guidelines on the matter has been issued by the Vietnamese Government so far. This causes quite vague and varying interpretations of the regulation. Consequently, the security control over inventions under the laws of Vietnam are considered too harsh for the purpose of encouraging scientific research and development in Vietnam.
The regulation is now subject to a major change under a proposed revision of the IP Law of Vietnam, which is in the course of compilation and debate, and expected to be issued in late 2022. As per the latest draft revision issued in March 2021, the security control over inventions is introduced in much clearer and narrower themes. Accordingly, the security control is proposed to be imposed on inventions that meet all three requirements (i) to be in technical fields with impacts on the national security, (ii) to be created wholly in Vietnam, and (iii) under the right to file of individuals being Vietnamese citizens with residences in the territory of Vietnam, or of organizations established under the laws of Vietnam.
With the mentioned proposed revision, it is now discernable that only inventions that are wholly created in Vietnam may be subject to the security control, while those made partly in Vietnam will be exempted. Further, involvement of Vietnamese individuals and organizations in those inventions should be in the role of applicants or owners (who have the right to file), not inventors. The draft also makes clear that the applicants/owners will be the ones who have the right to dictate whether their inventions are wholly made in Vietnam or not. For the technical fields that have impacts on the national security, it is the intention of the lawmakers to have them be further guided by the by-laws, but in general they will include those relating to chemical weapons, biological weapons, nuclear weapons, atomic energy, military equipment or equipment and technology used for intelligence or criminal investigations. For all those fields, statistics show that number of patents relating to are quite low in Vietnam in recent years.
The proposed revisions have been well received by the IP community of Vietnam with a hope to end the questions about the tight but unclear security control that has been in place over the years, while stimulating the research and patent filings in Vietnam when anxiety about the security control has been relieved.