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Workers create their own invention to serve at the enterprise - Who is the owner?

Currently, intellectual property assets have a great impact on the business situation of the enterprise, the strategy and development orientation of the company, etc. Typically one of the intellectual property assets is Developed countries like the US and Japan are very interested and take the lead in almost all fields such as electronics, biotechnology, health, ... to create inventions. Inventions are created by humans to help increase labor productivity, significantly improve production activities and enhance corporate value. Therefore, to answer the above question, the answer to the above question is not determined in detail but must rely on many factors to evaluate.

First, let's explore some general issues related to the invention. An invention[1] is a technical solution in the form of a product or a process intended to solve a problem by applying natural laws. Conditions for patenting include[2]: (i) Being new; (ii) Have creative level; (iii) Applicable to industry. Conditions for establishing an ownership right[3] for an invention shall be based on the decision to grant a protection title of a competent state agency according to the procedures for registration or recognition of international registrations under international treaties. The Socialist Republic of Vietnam is a member. The term of validity of a protection title is from the date of issue and lasts up to twenty years from the date of filing.[4]

Based on the above conditions, an individual or organization wishing to establish ownership with an invention, first of all the technical solution in the form of a product or a process, must meet the criteria for a patent. that patent right is to meet the above three conditions; and the ownership of organizations and individuals that are recognized and recognized and protected through protection by state agencies. Currently, there are some cases such as universities or research institutes that invite doctors, experts, etc. to research and create inventions in order to serve jobs at universities and research institutes. These organizations accept material investment and funding so that they can create inventions. That relationship is a labor relationship, established on the basis of a contract, the content of the contract agreed on the work performed by the employee during the performance of the labor contract. In which binding the owner of the invention belongs to the university or research institute. The law on intellectual property already provides for organizations and individuals who invest funds and material facilities for authors in the form of work assignments or job hires who have the right to register inventions and if If an invention satisfies the condition of being recognized as an invention, it will establish ownership of that invention. However, the current intellectual property law does not provide for workers to make an invention at the enterprise in general and the place where the employee is working in general but that job does not. within the scope of work assigned or hired[5] by an employer. So does ownership belong to the employee, who directly created the invention?

According to the current Intellectual Property Law defined at Point a, Clause 1, Article 86 of the Intellectual Property Law: "The author creates an invention, an industrial design ... with his own labor and expenses", and has the right to post sign. So, employers in this case, they do have to use their research minds and brainpower to create inventions. But if they do not invest the costs, they are eligible to register or not? Consider a hypothetical case as follows: A is a biological researcher and is invited by Research Institute X to study an invention A. The contract between A and Research Institute X stipulates that Research Institute X is equivalent of course, the owner with the patent created by A. However, during the research, A created an invention A 'in the form of a technical solution in the form of a product and an invention A' 'a technical solution in the form of a process. A wants to register patent A '' under his name and wants to be the owner of that invention. In contrast, Research Institute X thinks that A does not have the right to register because A only invests in research, but at the expense that Research Institute X invests as research equipment. Obviously in this case, considering the wording in accordance with the law must invest effort and costs. Worker A is the author of the invention but A only satisfies the condition that he is devoted to research, and the cost is spent by Research Institute X even though the cost is not within the scope of contract performance signed the original. Certain research fields such as biology, medicine, etc., in order to create an invention must have facilities because the enterprise itself must spend a lot of investment money so that workers can proceed to do the job. In addition to the basis of the signed labor contract, the employee must consider the labor regulations or regulations on the management of intellectual property at the place where he/she is working. Because of the labor contract does not provide a binding clause, it is very likely that it is in the labor rule or the regulation on intellectual property management that the employee created the invention to serve at the enterprise. The enterprise will own by that enterprise and has a certain remuneration or compensation for employees. In case the two parties have conflicting decisions on who is the owner but cannot come to a unanimous decision, either of them will be granted patent protection. And the other case is that an invention has been published and it has lost the novelty of the invention, even though it is determined who is the owner of the invention, it is still not protected because it does not meet the protection conditions for the invention.
In conclusion, in order to avoid cases of inconsistent conflicts, the parties should agree clearly and concretely from the first stage in order not to waste time and money between the parties.
 
[1] Clause 12, Article 4 of the 2005 Law on Intellectual Property, amended in 2009
[2] Article 58 of the 2005 Intellectual Property Law, amended in 2009
[3] Point a, Clause 3, Article 6 of the 2005 Intellectual Property Law, amended in 2009
[4] Clause 2, Article 93 of the 2005 Law on Intellectual Property, amended in 2009
[5] Point b, Clause 1, Article 86 of the 2005 Law on Intellectual Property, amended in 2009
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