Decree No. 76/2018/ND-CP dated May 15, 2018 of the Government on detailing and guiding the implementation of a number of articles of the Law on Technology Transfer

DECREE

Detailing and guiding the implementation of a number of articles of the Law on Technology Transfer^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the June 18, 2013 Law on Science and Technology;

Pursuant to the June 19, 2017 Law on Technology Transfer;

Pursuant to the November 29, 2005 Law on Intellectual Property, and the June 19, 2009 Law Amending and Supplementing a Number of Articles of the Law on Intellectual Property;

Pursuant to the June 21, 2017 Law on Management and Use of Public Assets;

At the proposal of the Minister of Science and Technology;

The Government promulgates the Decree detailing and guiding the implementation of a number of articles of the Law on Technology Transfer.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides the implementation of Articles 9, 10, 11, 27 and 31; Clause 3, Article 32; Articles 35, 36, 40, 42 and 43; and Clause 3, Article 48, of the Law on Technology Transfer regarding lists of technologies, management of technology transfer activities; technology evaluation, appraisal and assessment; technology transfer support and promotion, and development of the science and technology market.

Special forms and modes of technology transfer in agriculture specified in Clauses 2 and 3, Article 52 of the Law on Technology Transfer must comply with other regulations of the Government.

Article 2. Subjects of application

This Decree applies to agencies, organizations and individuals involved in technology transfer activities as defined in Article 1 of the Law on Technology Transfer.

Chapter II

LISTS OF TECHNOLOGIES, MANAGEMENT OF TECHNOLOGY TRANSFER ACTIVITIES

Article 3. List of technologies encouraged for transfer, list of technologies restricted from transfer and list of technologies banned from transfer

1. Promulgated together with this Decree are the following lists of technologies:

a/ List of technologies encouraged for transfer (Appendix I);

b/ List of technologies restricted from transfer (Appendix II);

c/ List of technologies banned from transfer (Appendix III).

2. Based on the socio-economic development and state management requirements, ministries and ministerial-level agencies shall consider, propose and send technologies to the Ministry of Science and Technology for sum-up and submission to the Government for modification or addition to the lists of technologies specified in Clause 1 of this Article.

Article 4. Technology transfer prices and payment methods

1. Parties to a technology transfer contract may agree on payment by one or several of the following methods:

a/ Lump-sum or installment payment in cash or in kind, including also payment calculated based on units of products turned out from the transferred technology;

b/ Conversion of the technology’s value into capital contributed to an investment project or to capital of an enterprise.

In case of capital contribution with a state-funded technology (technology created or purchased with state funds), technology appraisal shall be carried out in accordance with law;

c/ Payment in percentage (%) of net selling price.

Net selling price shall be determined to be the total selling price of products or services the making process of which involves the application of the transferred technology (calculated according to sale invoices) minus: value-added tax, excise tax and export duty (if any); expenses for purchase of imported or domestically procured semi-finished products, parts, details and components; expenses for purchase of packages, packaging and transportation of products to outlets and product advertising;

d/ Payment in percentage (%) of net turnover.

Net turnover shall be determined to be sale turnover of products or services created with the transferred technology minus turnover reductions including commercial discounts, price reductions for goods sold and returned goods sold;

dd/ Payment in percentage (%) of pre-tax profit.

Pre-tax profit shall be determined to be net turnover minus total reasonable expenses for production of marketed products or provision of marketed services involving the application of the transferred technology. Parties may also agree on payment in percentage of after-tax profit;

e/ Combination of two or more of the methods specified at Points a, b, c, d and dd of this Clause or other payment methods in accordance with the law on technology transfer.

2. In case a technology (technology created or purchased with state funds) transferred between parties, one or several of whom has/have state funds, its price shall be determined based on technology price appraisal counseling in accordance with law.

3. In case a technology transferred between parties that have relationships in the parent-affiliated company model or those with association relationship in accordance with the tax laws, the price audit shall be carried out in the form of technology price appraisal in accordance with law at the request of tax administration agencies.

Article 5. Registration of technology transfer 

1. For transfer of technologies not subject to registration specified in Clause 1, Article 31 of the Law on Technology Transfer, if organizations and individuals wish to register technology transfer, they shall follow the order and procedures prescribed in Clauses 3, 4, 5 and 6, Article 31 of the Law on Technology Transfer and this Decree.

The effective date of a technology transfer contract mentioned in this Clause shall be agreed upon by the parties. In case by the date of registration of technology transfer, the parties have not yet performed the contract, the contract will become effective from the date of grant of a technology transfer registration certificate.

2. The technology transferee in case of technology transfer into Vietnam from abroad or domestic technology transfer, or the technology transferor in case of technology transfer from Vietnam abroad shall, on behalf of the parties, send a dossier for registration of technology transfer to the agency competent to grant technology transfer registration certificates as defined in Article 6 of this Decree.

3. Time limit for grant of a technology transfer registration certificate:

a/ Within 5 working days after receiving a complete dossier as prescribed in Clause 3, Article 31 of the Law on Technology Transfer, the competent agency defined in Article 6 of this Decree shall grant a technology transfer registration certificate;

b/ In case of an incomplete dossier, within 3 working days after receiving it, the competent agency shall request in writing the technology transfer-registering party to supplement it;

c/ In case of a dossier having a content which needs to be modified or supplemented, within 5 working days after receiving it, the competent agency shall request in writing the technology transfer-registering party to modify or supplement it;

d/ In case of refusal to grant a technology transfer registration certificate, within 5 working days after receiving a dossier, the competent agency shall reply in writing clearly stating the reason.

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