Chương I Luật Chuyển giao công nghệ 2017: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law deals with the transfer of technologies in Vietnam, from foreign countries to Vietnam and vice versa; rights and obligations of organizations and individuals participating in technology transfer activities; appraisal of technology applied to investment projects; technology transfer agreements; measures to encourage the technology transfer, development of the science and technology market; state management of technology transfer.

Article 2. Interpretation of terms

For the purpose of this law, these terms are construed as below:

1. Know-how means the information that is gathered and obtained from the research, manufacturing and trading, and is decisive factor in determining the quality and competitive ability of technology and technological products. Know-how includes technical know-how and technological know-how.

2. Technology refers to a solution, process or know-how with or without accompanying instruments and facilities to convert resources into products.

3. Advanced technology refers to the technology which has a technological level higher than the current technological level of the same type in Vietnam and has been applied to the reality to improve the productivity and quality of products, and produce high-quality and eco-friendly products.

4. New technology refers to the technology which is developed or applied in Vietnam or in the world for the first time with the technological level higher than the current technological level of the same type in Vietnam, eco–friendly, applied to the reality and capable of improving the productivity and quality of products.

5. Clean technology refers to the technology that generates less environmental pollutants as defined in the law on technical standards and regulations, and uses less non-renewable resources than existing technology.

6. High technology means the technology with a high content of scientific research and technological development; which is integrated from modern scientific and technological achievements; creates high-quality and eco-friendly products with high added value and significant features; plays key role in forming new manufacturing or service industry or modernizing an existing manufacturing or service industry.  

7. Technology transfer refers to the transfer of the ownership or the right to use a given technology from the party that has the right to transfer such technology to the transferee.

8. Domestic technology transfer refers to the transfer of technology which is made within the territory of Vietnam.

9. Transfer of technology from foreign countries to Vietnam refers to the transfer of a given technology across border to Vietnam.

10. Transfer of technology from Vietnam to foreign countries refers to the transfer of a given technology which is developed within the territory of Vietnam across border to a foreign country.

11. Commercialization of findings on scientific research and technological development refers to the development, finishing, application, transfer or other activities related to findings on scientific research and technological development for profit purpose.

12. Technology incubation means a process to create, finish and commercialize technology from technology ideas, findings of scientific research and technological development or incomplete technology by means of assistance activities in technical infrastructure, resources and necessary services.   

13. Science and technology business incubation means a process to establish and develop science and technology enterprises by means of assistance activities in technical infrastructure, resources and necessary services.

14. Technology incubator or science and technology business incubator is a facility that provides conditions as required by law such as technical infrastructure, resources and necessary services to serve the technology incubation or the science and technology business incubation.

15. Technology innovation refers to the partial or full replacement of existing technology by another one with the aims of improving the productivity, quality and competitiveness of products.

16. Reverse engineering is the process of discovering technological principles of a device, object or system through research and analysis of its structure, design, function and operation in order to maintain, operate, improve or make a new device, object or system that does the same thing with the original or meets requirements defined in the national technical standards and regulations.

17. Technology appraisal refers to the evaluation of level and economic effects of a given technology, its environmental and socio-economic impacts.

18. Technology valuation is the process of estimating the monetary value of a technology by a technology valuation authority or organization in conformity with the market price at a given place and time to serve specific purposes as defined in the applicable valuation standards.

19. Technology assessment refers to the process of identifying criteria of a given technology which have been satisfied through its applications against those agreed upon by the parties.

20. Technology transfer brokerage refers to a set of activities which provide assistance in seeking parties interested in technology transfer.

21. Technology transfer consultancy refers to a set of activities which provide assistance in selecting and applying technology; collecting information about technology, patients and/or findings on scientific research and technological development; negotiating, concluding and performing technology transfer agreements.

22. Promotion of technology transfer refers to a set of activities which create and improve the transfer of technology; provide services of advertising, exhibition and introduction of technology; organize technology markets, trade fairs and exhibitions, points of technology supply and demand, and technology transfer centers.

Article 3. State policies on technology transfer

1. Ensure rights and legal interests and facilitate organizations and individuals in carrying out technology transfer; develop science and technology market and the national innovative system which focuses on enterprises; improve the national technological level and potential with the aims of protecting the national defense and security and ensuring rapid and sustainable socio-economic development.

2. Diversify technology transfer forms and methods; encourage the technology transfer from various sources.

3. Give priority to the transfer of high technology, advanced technology, new technology, clean technology and technology serving the development of national key products, and technology serving national defense and security tasks both from foreign countries into Vietnam and domestic transfer of such technology; allocate adequate resources for technology transfer activities in agriculture and rural development; attach special importance to technology transfer activities performed at regions facing difficult or extremely difficult socio-economic conditions.

4. Assist technology ideas, innovative startups, technology incubation, and science and technology business incubation; assist application and innovation of technology, connection between scientific research and technological development organizations and training facilities or manufacturing facilities; attach special importance to the commercialization of domestic findings on scientific research and technological development; develop science and technology market intermediaries.

5. Speed up the transfer of advanced technology and high technology from foreign countries to Vietnam; encourage the transfer of technology from Vietnam to foreign countries; attach special importance to the development of advanced technology and high technology in a large scale from foreign-invested enterprises to domestic enterprises; speed up innovative operations of organizations and individuals.

6. Prevent and eliminate obsolete technologies and other technologies that may adversely influence on socio-economic development, national defense and security, environment and human health.

Article 4. Transferable technologies  

1. One or some of the following technologies are transferable:

a) Technical know-how and technological know-how;

b) Technology plans or processes; engineering solutions, parameters, drawings or diagrams; formula, computer software and database;

c) Solutions for rationalization of production and technology innovation;

d) Accompanying machinery and/or equipment of transferable technologies mentioned in Points a, b and c of this Clause.

2. In case transferable technologies specified in Clause 1 of this Article are subject to intellectual property (IP) rights protection, the transfer of the intellectual property rights shall be carried out in accordance with regulations of the Law on intellectual property.

Article 5. Forms of technology transfer

1. Independent technology transfer contract.

2. Part of technology transfer in the following cases:

a) Investment project;

b) Making capital contribution by technology;

c) Franchise agreement;

d) Transfer of IP rights;

dd) Purchase or sale of machinery/ equipment mentioned in Point d Clause 1 Article 4 herein.

3. Technology transfer may be implemented under other forms as regulated by law.

4. The technology transfer prescribed in Clause 1 and Point b Clause 2 of this Article must be implemented under written agreements; the technology transfer prescribed in Points a, c, d and dd Clause 2 and Clause 3 of this Article may be implemented under contracts or terms or provisions or appendixes of contract or dossier of the investment project which must include all of contents mentioned in Article 23 herein.

Article 6. Methods of technology transfer

1. Transfer of documents concerning technology.

2. Provision of training to the transferee within a given period as agreed upon by the parties in order to enable the transferee to properly understand and master the transferred technology.

3. Appointment of expert(s) to provide technical support to the transferee in order that the transferee may apply or put the transferred technology into operation to achieve criteria of product quality or progress as agreed upon by the parties.

4. Transfer of accompanying machinery/ equipment of the technology prescribed in Point d Clause 1 Article 4 herein under the methods specified in this Article.

5. Other technology transfer methods as agreed upon by the parties.

Article 7. Rights to make technology transfer

1. A technology owner shall have the right to transfer the ownership or the right to use such technology.

2. An organization or individual that is entitled to use a given technology may transfer the right to use such technology to another one but it requires the technology owner's approval.

3. The scope of transfer of the right to use a technology shall be agreed upon by the parties. To be specific:

a) Exclusive or non-exclusive right to use such technology;

b) The transferee’s right to re-transfer the right to use such technology to a third party.

Article 8. Capital contribution by technology to investment projects

An organization or individual that has the right to transfer technology as prescribed in Article 7 herein is entitled to make capital contribution by technology to investment projects; in case of investment project funded by the State, the technology which is used to make capital contribution to such project must be valued in accordance with regulations of law.

Article 9. Technologies encouraged for transfer

1. High technologies; accompanying machinery/ equipment of high technologies the transfer of which is encouraged under regulations of the law on high technologies.

2. Advanced technologies, new technologies and clean technologies that are suitable for socio-economic conditions of Vietnam shall be encouraged for transfer from foreign countries to Vietnam or domestically if any of the following requirements is satisfied:

a) Produce high-quality and highly competitive products against those produced by the existing technology of the same type;

b) Produce national key products from domestic findings on scientific research and technological development;

c) Generate new manufacturing and processing services/ industries/ sectors; breed/ cultivate new varieties which have been tested;

d) Save resources, energy or fuels in comparison with the existing technology of the same type in Vietnam;

dd) Generate or use new or renewable energy; store energy in highly efficient way;

e) Generate machinery/ equipment to improve educational and training quality; medical machinery/equipment and pharmaceutical products serving medical diagnosis and treatment, protection of human health and improve the physical strength for Vietnamese people;

g) Discover, handle or forecast natural disasters or epidemic diseases; serve search and rescue activities; protect environment and cope with climate change and reduce the greenhouse gas emission;

h) Assist the consistent production according production chains with high socio-economic efficiency;

i) Create products which concurrently serve national defense, security and civil purposes;

k) Develop and modernize traditional handicrafts.

3. Technologies; machinery/equipment accompanying the technologies which are mentioned in Point d Clause 1 Article 4 herein and exist in Vietnam, excluding the technologies prescribed in Clause 1 and Clause 2 of this Article, Clause 2 Article 10 herein; technologies operated by fuels which are domestically produced products or haft-way products are encouraged for transfer to foreign countries.

4. The Government is responsible for promulgating the List of technologies encouraged for transfer.

Article 10. Technologies restricted from transferring

1. The transfer of the following technologies from foreign countries to Vietnam or domestically shall be restricted:

a) Technologies that are no longer popular in industrialized countries; accompany machinery/equipment of such technologies;

b) Technologies that use toxic chemicals or generate hazardous waste in conformity with the national technical standards and regulations;

c) Technologies that make products by adopting genetic engineering;

d) Technologies that use or create radioactive substances in conformity with the national technical standards and regulations;

dd) Technologies that use resources or minerals the extraction of which is limited domestically;

e) Technologies that are employed to propagate, raise or cultivate new varieties which are not yet tested;

g) Technologies that are employed to create products adversely influencing on customs and habits, traditions and social ethnics.

2. The transfer of the following technologies from Vietnam to foreign countries shall be restricted:

a) Technologies that are employed to create traditional products or perform production activities according to traditional know-how or use or create categories/ species of agricultural varieties, minerals or typical precious materials of Vietnam;

b) Technologies that are employed to create products to export to the markets in which there are products competitive with the main export products of Vietnam.

3. The Government is responsible for promulgating the List of technologies restricted from transferring.

Article 11. Technologies banned from transferring

1. The transfer of the following technologies from foreign countries to Vietnam or domestically shall be banned:

a) Technologies that fail to satisfy regulations of laws on occupational safety and sanitation, protection of human health, resources and environment protection, and biodiversity;

b) Technologies that are employed to create products adversely influencing on social – economic development or adversely influencing on the national defense and security or social order and security;

c) Technologies that are no longer popularly used and transferred in developing countries and fail to satisfy national technical standards and regulations;

d) Technologies that use toxic chemicals or generate hazardous waste that fails to satisfy the national technical standards and regulations on environment;

dd) Technologies that use or create radioactive substances that fail to satisfy the national technical standards and regulations.

2. The transfer of technologies on the List of state secrets from Vietnam to foreign countries is also banned, unless otherwise stipulated by law.

3. The Government is responsible for promulgating the List of technologies banned from transferring.

Article 12. Prohibited acts in technology transfer

1. Abusing technology transfer activities to harm national defense, security interests, human health, environment, social ethnics, customs and habits; harm the lawful rights and interests of an organization or individual; deteriorate natural resources or biodiversity.

2. Carrying out the transfer of technologies which are banned from transferring; illegally transferring technologies which are restricted from transferring.

3. Committing violations against regulations on rights to transfer technology.

4. Committing deceits or frauds in making and performing technology transfer agreements, technology transfer service contracts, and technology-related contents specified in contracts or investment project dossiers.

5. Obstructing the provision of, or refusing to provide information concerning technology transfer activities upon requests of regulatory authorities.

6. Disclosing technological secrets inconsistently with the law or obstructing technology transfer activities.

7. Using/ applying technologies other than those approved or permitted by regulatory authorities.