Decree No. 13/2012/ND-CP dated March 02, 2012 of the Government promulgating the regulation on innovations

DECREE

PROMULGATING THE REGULATION ON INNOVATIONS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

At the proposal of the Minister of Science and Technology,

DECREES:

Article 1.To promulgate together with this Decree the Regulation on innovations.

Article 2.The Ministry of Science and Technology shall assist the Government in performing the unified state management of innovation activities nationwide.

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People s Committees shall, within the ambit of their functions, tasks and powers and depending on the practical conditions of their respective agencies or localities, detail and guide the implementation of this Decree.

Article 3.This Decree takes effect on April 25, 2012, and replaces the provisions on innovations of the Regulation on innovations, technical improvements for production rationalization and inventions, promulgated together with Decree No. 31 -CP of January 23, 1981, which was amended and supplemented by Decree No. 84/HDBT of March 20, 1990, of the Council of Ministers (now the Government).

REGULATION

ON INNOVATIONS
(Promulgated together with the Government s Decree No. 13/2012/ND-CP of March 2, 2012)

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Regulation details the conditions and procedures for recognizing innovations, rights and obligations of innovation investors, innovators and persons participating in first-time application of innovations, measures to promote innovation activities, and the state management of innovation activities.

2. This Regulation applies to Vietnamese and foreign institutions and individuals engaged in innovation activities in Vietnam.

Article 2. Interpretation of terms

In this Regulation, the terms below are construed as follows:

1. Innovation activities include activities of creating, applying and recognizing innovations and performing innovation-related rights and obligations.

2. Innovation transfer means the transfer of all knowledge and information about an innovation so that the transferee can apply such innovation.

3. First-time application of an innovation means the application of an innovation for the first time, including the trial application.

4. Establishment means an agency or institution which is established under law and can independently participate in civil law relations in its own capacity.

5. Innovator means a person who, through his/her creative labor, directly creates an innovation. Co-innovators are persons who jointly create an innovation.

6. Innovation investor means an agency, institution or individual that provides funds and physical-technical means in the form of job assignment or hiring or in another form of an innovator to create an innovation.

An innovator is concurrently regarded as the investor of an innovation if he/she is neither assigned nor hired or receives no fund or physical-technical means from another party to create such innovation.

Article 3. Innovations

1. An innovation is a technical, managerial, operational or technical advance application solution (below collectively referred to as solution), which may be recognized as such by an establishment if fully satisfying the following conditions:

a/ It is novel within the establishment;

b/ It has been applied or experimentally applied at the establishment and is capable of bringing about practical benefits:

c/ It is other than the objects specified in Clause 2 of this Article.

2. The following objects are not recognized as innovations:

a/ Solutions which have been published or applied against public order or social ethics;

b/ Solutions which are protected under the intellectual property law at the time of recognition.

Article 4. Novelty and capability to bring about practical benefits of innovations

1. A solution is considered novel within an establishment if, prior to the date of filing a written request for innovation recognition or the date of commencement of its trial or first-time application, whichever is earlier, within such establishment, it fully satisfies the following conditions:

a/ It is not identical to a solution stated in an earlier filed innovation registration application;

b/ It is not yet publicly revealed in documents, books, newspapers or technical documents to an extent that it can be immediately implemented;

c/ It is not identical to another person s solution which has been applied or experimentally applied or included in a plan for application or popularization or preparation of conditions for application or popularization;

d/ It is not yet stipulated as a compulsory standard, process or norm.

2. A solution is considered capable of bringing about practical benefits if its application can bring about economic effectiveness (for example, higher labor productivity, reduced production costs, improved product and service quality, and higher technical efficiency), or social benefits (for example, improved labor safety conditions, living and working conditions, environmental protection and human health).

Chapter II

INNOVATION RECOGNITION

Article 5. Request for innovation recognition

1. An innovator may request recognition of his/her innovation by the following establishments:

a/ The establishment that is the innovation investor;

b/ The establishment that is transferred the innovation by the innovator under an agreement between the two parties, provided that the innovation investor refuses to recognize the innovation and has no other agreement with the innovator;

c/ The establishment that is transferred the innovation by the innovator under an agreement between the two parties, in case the innovator is concurrently the innovation investor.

2. For an applied solution, the statute of limitations for exercising the right to request the innovation recognition is one year from the date of first-time application of the innovation.

3. A written request for recognition of an innovation contains the following details:

a/ Name of the establishment requested to recognize the innovation;

b/ Name of the innovator or names of the co-innovators (if any) and proportion of contribution of each innovator to the creation of the innovation:

c/ Innovation investor;

d/ Title of the innovation; field of application; description of the innovation s nature, clearly indicating information which must be kept confidential (if any);

e/ Conditions necessary for innovation application;

f/ Persons engaged in the first-time application of the innovation (if any);

g/ Evaluation of benefits brought about or expected to be brought about by the innovation application according to opinions of institutions and individuals that have applied the innovation (if any) and of the innovator.

Article 6. Receipt and examination of written requests for innovation recognition

1. Establishments which may be requested to recognize innovations specified in Clause 1, Article 5 shall receive and examine written requests for innovation recognition, assist innovators in completing their written requests, and examine these requests in accordance with this Regulation.

2. Within one month after receiving a written request for recognition of an innovation, an establishment shall examine the written request in accordance with Clause 3, Article 5 and carry out the following procedures:

a/ Notifying the innovator of improper contents of the request and setting a time limit of one month for the innovator to modify, supplement and resend the request;

b/ Notifying the innovator of the acceptance of the request, taking notes of relevant information in the request, and preserving the request dossier in accordance with regulations;

c/ Notifying the innovator of the reason for refusal to receive the request.

Article 7. Consideration of innovation recognition

1. Innovation recognition shall be considered within 3 months after the receipt of a written request for recognition of an innovation in accordance with Clause 2, Article 6 or the date of completion of the first-time application, if such innovation is applied for the first time after the written request is accepted. The establishment considering the innovation recognition shall assess the object stated in the written request against the conditions specified in Articles 3 and 4 and:

a/ Recognize the innovation and grant an innovation certificate to the innovator, except the cases specified at Point b of this Clause; or

b/ Refusing to recognize the innovation, if the object stated in the written request fails to satisfy the conditions specified in Articles 3 and 4, and notify in writing the innovator of the refusal, clearly stating the reason.

2. An innovation certificate must contain the following details:

a/ Name of the establishment recognizing the innovation;

b/ Title of the recognized innovation;

c/ Innovators or co-innovators;

d/ The innovation investor;

e/ Summarized contents of the innovation; socio-economic benefits which can be brought about by its application;

f/ Other appropriate information decided by the innovation-recognizing establishment.

3. The innovation recognition shall be decided by the head of the innovation recognition-considering establishment.

4. For an innovation created with the State s funds and physical-technical means, if the head of the innovation-recognizing establishment is the very innovator, the recognition of the innova­tion must be approved by a management agency in accordance with the following provisions:

a/ In case the establishment is a state agency or institution, the innovation recognition must be approved by its direct superior management agency;

b/ In case it is not a stale agency or institution, the innovation recognition must be approved by the provincial-level Science and Technology Department of the locality in which the establishment is based or by the stale agency or institution that directly funds the creation of the innovation.

Article 8. Innovation council

1. The head of an innovation recognition-considering establishment may set up an innovation council to assess a solution requested to be recognized as an innovation, serving as a basis for decision on the innovation recognition.

In case an innovation is created with the State s funds and physical-technical means and the heads of the innovation recognition-considering establishment is the very innovator, such innovation must be assessed by an innovation council.

2. An innovation council is composed of persons who have expertise relevant to the contents of the innovation, representative( s) of the trade union of which the innovator is a member and other persons as decided by the head of the innovation recognition-considering establishment.

3. An innovation council is tasked to objectively and honestly assess the solution requested to be recognized as an innovation based on the conditions specified in Articles 3 and 4 of this Regulation, and make an assessment report with all opinions of the council members and the result of the council s voting.

Chapter III

RIGHTS AND OBLIGATIONS OF INNOVATION INVESTORS, INNOVATORS AND PERSONS PARTICIPATING IN THE FIRST-TIME APPLICATION OF INNOVATIONS

Article 9. Rights of innovation investors, innovators and persons participating in the first-time application of innovations

1. For a recognized innovation, its investor has the following rights:

a/ To apply it;

b/ To transfer it to another institution or individual in accordance with law.

2. For a recognized innovation, its author has the following rights:

a/ To be acknowledged as the innovator in the innovation certificate and when it. is popularized or introduced:

b/To receive a remuneration in accordance with Article 10;

c/ To enjoy other incentives provided by the law on emulation and commendation and the law on science and technology:

d/ To apply and transfer it to other institutions and individuals, unless it is subject to intellectual properly rights of its investor and there is another agreement between the innovator and the investor:

e/ The rights provided in Article 1 of this Article, in case the innovator is concurrently the innovation investor.

3. For a recognized innovation, persons participating in its first-time application are entitled to a remuneration provided in Article 10.

4. The application and transfer of innovations specified in Clauses 1 and 2 of this Article must neither infringe upon protected intellectual property rights, rights and legitimate interests of other institutions and individuals, nor contravene the law.

Article 10. Obligation to pay remunerations to innovators and persons participating in the first-time application of innovations

1. Before the expiration of the duration of 4 years from the date of recognition of an innovation, if its investor applies or transfers it to another institution or individual for application, it is obliged to pay a remuneration to the innovator and persons participating in the first-time application of the innovation under the agreement among them or in accordance with Clauses 2,3,4 and 5 of this Article in case they reach no agreement.

2. In case an innovation investor is an economic institution or a non-business unit that generates revenues and practices independent accounting, if there is no agreement between the innovator and the investor, the payment of remuneration to the innovator shall be made according to the following provisions:

a/ The remuneration is paid annually for the first three years of application of the innovation within one month after the end of each year of application and at the level equal to at least 7% of the annual monetary benefit amount resulting from the application. In case it is impossible to calculate such amount, the annual remuneration must be at least five times the common minimum wage prescribed by the Slate at the time of remuneration payment;

b/ The remuneration is paid for three years after the innovation is recognized each time of transfer of the innovation to another institution or individual, within one month after the payment for each time of transfer is received and at the level equal to at least 15% of the transfer price.

3. In case an innovation investor is neither an economic institution nor a non-business unit that generates revenues and practices independent accounting, if there is no agreement between the innovator and the investor, the payment of remuneration to the innovator shall be made as for the case in which it is impossible to calculate annual monetary benefit amounts resulting from the innovation application specified at Point a, Clause 2 of this Article.

4. The obligation to pay remunerations to persons participating in the first-time application of an innovation shall be performed at the same time with the payment of remuneration to the innovator and at the level equal to at least 20% of the remuneration payable to the innovator if there is no agreement between these persons and the innovation investor.

5. The remuneration level specified in Clauses 2 and 3 of this Article shall be paid to all co-innovators while that specified in Clause 4 of this Article shall be paid to all persons participating in the first-time application of the innovation and these persons may themselves reach agreement on remuneration division among them.

Article 11. Determination of monetary benefit amounts resulting from innovation application

1. Monetary benefit amount resulting from the application of an innovation is the total sum of money saved from all benefits directly brought about by the application, after subtracting all expenses for the application.

2. Direct monetary benefit amounts shall be determined on the basis of comparing actual economic and technical levels before and after the application of an innovation.

3. Indirect monetary benefit amounts resulting from the application shall not be calculated when determining monetary benefit amounts.

Article 12. Obligations of innovators and persons participating in the first-time application of innovations

1. An innovator has the following obligations:

a/ To provide sufficient information on his/ her innovation so that his/her innovation can be applied to the innovation-recognizing establishment;

b/ To participate in the first-time application of his/her innovation;

c/ To keep confidential information on his/her innovation in accordance with the agreement with the innovation investor and law;

d/ To pay remunerations to persons participating in the first-time application of his/ her innovation in accordance with Article 10, in case the innovator is concurrently the innovation investor.

2. Persons participating in the first-time application of an innovation have the following obligations:

a/ To provide detailed information on the application of the innovation to the innovation recognition-considering institution;

b/ To keep confidential information in accordance with the agreement with the innovation investor and law.

Article 13. Rights and obligations related to innovations eligible for intellectual property rights protection

In case an object being an innovation has been recognized and later eligible for intellectual property rights protection, from the time of establishment of intellectual property rights, the provisions of the intellectual property law shall apply to such object in replacement of the regulations on innovations.

Chapter IV

MEASURES TO PROMOTE INNOVATION ACTIVITIES

Article 14. Popularization of innovations

1. Ministries, sectors and provincial-level People s Committees shall take the following measures to popularize innovations in areas under their management:

a/ To provide the service of brokering the transfer of innovations and various forms of transaction (fair and exhibition) in support of the transfer of innovations created with the State s fund and physical and technical means or innovations of individuals or institutions that arc incapable of application;

b/ To support the first-time application of innovations, reach agreement and coordinate with innovation investors in publicizing, popularizing and widely applying innovations which are susceptible of wide application and likely to bring about great benefits for society;

c/ To publicize, popularize and widely apply innovations being managerial and operational solutions in the State s administrative and non-business management and innovations created with the State s funds and physical and technical means.

2. Brokerage service providers may collect brokerage charges at rates agreed upon with innovation investors.

Article 15. Promotion of creative-labor emulation movements

1. Ministries, sectors and provincial-level People s Committees shall coordinate with the Trade Union, the Communist Youth Union and the Union of Scientific and Technical Associations in taking the following measures to encourage people to participate in creative-labor emulation movements:

a/ To organize creativity contests and exhibitions of outcomes of creative labor, the National Week of innovations, annually review and commend innovation activities and other activities to honor innovative institutions and individuals and praise innovations which are susceptible of wide application and likely to bring about practical benefits for society;

b/ To organize forums for innovation activities, such as innovation websites and clubs; to popularize and publicly commend innovative institutions and individuals in creative labor emulation movements.

2. Innovation-recognizing establishments, ministries, sectors and provincial-level People s Committees may take the following measures to encourage agencies, institutions and individuals that record outstanding achievements in creating and applying innovations:

a/ To give priority to raising salaries or professional ranks, providing training courses for improving professional qualifications and other welfare benefits firstly for innovators;

b/ To give priority to providing funds and creating favorable conditions for research and development, improvement and application of innovations.

3. The following agencies and institutions shall review, commend and reward innovation activities in their sectors and at their levels:

a/ The Ministry of Science and Technology and the Vietnam Union of Scientific and Technical Associations shall jointly assume the prime responsibility for, and coordinate with the Vietnam General Confederation of Labor and the Central Committee of the Ho Chi Minh Communist Youth Union in, reviewing, commending and rewarding innovation activities nationwide;

b/ Provincial-level Science and Technology Departments shall assist provincial-level People s Committees in assuming the prime responsibility for, and coordinate with local Unions of Scientific and Technical Associations (if any), labor federations, the Ho Chi Minh Communist Youth Union and local departments, divisions and sectors in, reviewing innovation activities in localities;

c/ Ministries, ministerial-level agencies and government-attached agencies shall review innovation activities of their sectors and branches.

Article 16. Expenses for innovation activities and measures to promote innovation activities

1. Expenses for innovation activities, including expenses for creation and application of innovations, payment of remunerations or rewards to innovators and persons participating in the first-time application of innovations shall be covered as follows:

a/ Non-business units that pay by themselves part of their regular operation expenses may enjoy partial supports from the state budget for expenses for innovation activities as incorporated in their annual budget expenditure estimates on the basis of their projected revenues;

b/ Non-business units that pay by themselves 100% of their regular operation expenses may use the fund for development of non-business activities to pay expenses for innovation activities;

c/ Non-business units that have all of their regular operation expenses covered by the State and other state units and agencies (other than non-business units) may incorporate expenses for innovation activities in their annual state budget expenditure estimates.

2. Expenses for innovation activities of enterprises shall be accounted as expenses creditable when determining their incomes liable to enterprise income tax in accordance with the Law on Enterprise Income Tax and guiding documents.

3. Funds for activities specified in Clause 1 of Article 15 shall be deducted from annual state budget allocations for state management activities of ministries, sectors and provincial-level People s Committees and state budget allocations of agencies and institutions and other financial sources.

Agencies specified in Clause 1 of Article 15 shall plan and estimate annual funds for their innovation activities.

4. The Ministry of Finance shall assume the prime responsibility for, and coordinate with related ministries and sectors in, guiding in detail the finance provisions of this Decree.-