LAW ON SCIENCE AND

TECHNOLOGY IN VIETNAM

Dr. Nguyen Hong Nam

University of Science and Technology of Hanoi

Hanoi, 2021 1
I. Introduction

 
I. Introduction
I. Introduction
I. Introduction
I. Introduction
I. Introduction - Legal documents related to
science and technology

Law No. 29/2013/QH13 dated June 18, 2013 on Science

and Technology
Law No. 80/2006/QH11 dated 29 November 2006 on
Technology Transfer
Law No. 21/2008/QH12 dated 13 November 2008 on High
Technologies (consolidated in Consolidation Document No.
13/VBHN-VPQH)
All these legal documents are passed by the National
Assembly
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II. Law on Science and Technology
Law No. 29/2013/QH13 passed by the National Assembly on June
18, 2013
Entered into force on January 1, 2014
11 chapters, 81 articles
Superseding the 2000 Law on Science and Technology (Law No.
21/2000/QH10 dated 09 June 2000)
The Law provides:
◦ science and technology organizations, individuals involved in
science and technology activities;
◦ organization of scientific and technological activities;
◦ measures to ensure science and technology development;
◦ state management of science and technology.
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 II. Law on Science and Technology
Structure:
 General provisions
 Scientific and technological organizations
 Individuals involved in scientific and technological activities, developing
human resource in science and technology
 Determination, organization of the performance of science and technology
tasks
 Applying scientific research and technology development results, disseminating
science and technology knowledge
 Investment, financing for the development of science and technology
 Building infrastructure and developing science and technology market
 International integration in science and technology
 State management responsibilities over science and technology
 Commendation and handling of violations
 Implementation provisions
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II. Law on Science and Technology
Definitions

Science means a system of knowledge about the nature and

laws of existence and development of natural objects and
phenomena, society and thought.

Technology means technical solutions, processes and know-

hows, whether or not accompanied by tools and means, to turn
resources into products.

Scientific and technological activities means scientific

research, technological research, experimental development,
technological development and application, provision of
scientific and technological services, promotion of initiative and
other creative activities aimed to develop science and
technology.
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0
II. Law on Science and Technology
Definitions

Scientific research means activities of discovering, identifying

and inquiring into the nature and laws of natural objects and
phenomena, society and thought; and creating solutions for
practical application.

Basic research means research activities aimed to discover the

nature and laws of natural objects and phenomena, society and
thought.

Applied research means activities of studying and applying

scientific research results aimed to create new technologies or
renew technologies that benefit humans and the society.

1
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II. Law on Science and Technology
Definitions

Technological development is an activity which uses the

results of basic research, applied research, through
development and pilot production (trial production), aimed at
perfecting existing technologies or creating new ones

Scientific and technological services means activities of

providing technical services or assistance for scientific research
and technological development; activities related to intellectual
property, technology transfer, technical standardization and
regulation, measurement, product and goods quality, radiation
and nuclear safety, and atomic energy; services of information,
consultancy, training and retraining, popularization and
application of scientific and technological achievements in socio-
economic sectors.
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2
II. Law on Science and Technology
Definitions

Infrastructure serving the development of science and

technology is the physical - technical facilities of scientific
technological organizations; the measurement system, key
laboratories; hi-tech zones, agricultural zones applying high
technologies, technology incubators, science and technology
business incubators; science and technology information and
statistics infrastructure.

Innovation is the creation of and application of achievements,

technical/technological solutions and management solutions to
improve the efficiency of socio-economic development, improve
productivity, quality, and added value of products and goods.

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3
II. Law on Science and Technology
State policy
S&T development constitutes a primary national policy.
The State:
- prioritizes and focuses national resources and implements
preferential mechanisms and measures for S&T development
- Creates conditions for the development of S&T market and
encourages enterprises to invest in S&T activities
- Promotes the application of scientific and technological
achievements
- Investing in science and technology infrastructure
development, with focus on key fields
- Promoting international cooperation in science and technology
14
II. Law on Science and Technology
S&T organizations

Science and technology organizations include:

◦ Scientific research institutions, scientific research and
technological development institutions in forms of academies,
institutes, centers, laboratories, research stations, observation
stations, experiment stations and other forms specified by the
Minister of Science and Technology;
◦ Higher education establishments specified in the Law on Higher
education; and
◦ Science and technology service organizations in forms of
centers, offices, testing offices and other forms specified by the
Minister of Science and Technology
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II. Law on Science and Technology
Individuals involved in S&T activities

Scientific
titles: Senior researcher
Research Principal
Researcher researcher
assistant

Higher education titles:

◦ Professor Law on higher education
◦ Associate professor
Technological titles: regulated by the Government

16
II. Law on Science and Technology
Developing human resources

Training

Privileges for scientists

Attracting Vietnamese scientists abroad and foreign experts

17
II. Law on Science and Technology
Scientific and technological tasks
Scientific and technological tasks are organized in form
of programs, subjects, projects, research tasks in
compliance with the scientific organization, and other
forms.
Scientific and technological tasks financed by the State
budget are of national, ministerial, provincial and local levels,
those of national, ministerial, and provincial levels have to be
performed by the mode of assignment.
All organizations and individuals are encouraged to
make scientific and technological task proposals.

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II. Law on Science and Technology
Scientific and technological tasks
financed by the State budget

Determination

Selection / Award Performance

Assessment, acceptance

Registration of results & Application

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II. Law on Science and Technology
S&T contract

S&T tasks are performed through written S&T contracts.

Types:

◦ S&T development contract

◦ Technology transfer contract

◦ S&T services contract

20
II. Law on Science and Technology
Funding


State investment: at least 2% of annual state expenditure
Investments from enterprises, organizations and individuals
◦ Privileges in terms of taxation, credit, etc.
◦ Scientific and technological enterprises

21
II. Law on Science and Technology
Funding

Foundations for science and technology development

International level

National level

Institutional level

Private funding

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III. Law on High technologies

6 chapters, 35 articles
Consolidated with new provisions in the new Law
on Investment (Law No. 67/2014/QH13)

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III. Law on High technologies
Definition

 High technology: a technology which has a high S&T development content; is

integrated from modern S&T achievements; can turn out environmentally
friendly products of superior quality and utilities and high added value; and
plays an important role in the formation of a new production or service
industry or the modernization of an existing production or service industry.
 Hi-tech activities: hi-tech research, development, seeking, transfer and
application; hi-tech human resource training; hi-tech incubation or hi-tech
enterprise incubation; hi-tech production and hi-tech service provision; and
hi-tech industrial development activities.
 Hi-tech enterprise: an enterprise turning out hi-tech products, providing hi-tech
services and conducting hi-tech S&T activities. 24
III. Law on High technologies
Definition
 Hi-tech incubation: a process of creating, improving and commercializing a
high technology from technological ideas, scientific results or an
unimproved technology through supporting necessary technical
infrastructure, resources and services.
 Hi-tech enterprise incubation: a process of forming and developing a hi-tech
enterprise through supporting necessary technical infrastructure, resources
and services.
 Hi-tech incubator or hi-tech enterprise incubator: a facility providing favorable
conditions in necessary technical infrastructure, resources and services for
hi-tech incubation or hi-tech enterprise incubation.
 Hi-tech human resources: qualified and skilled persons meeting the
requirements of hi-tech research, development and application activities, hi-
tech services, management of hi-tech activities, and operation of hi-tech
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production equipment and lines.
III. Law on High technologies
Hightech fields
Informa-
tion
techno-
logy

Automa-
tion
List of Biotech-
techno- nology
logy Hi-techs

New
materials
technolo
gy

Amended by the Prime Minister upon proposal of the MoST

and related ministries

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III. Law on High technologies
Main objectives

Develop hi-tech industry

Develop hi-tech agriculture
Deliver hi-tech products
Deliver hi-tech enterprises

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III. Law on High technologies
Infrastructure for high tech activities

Develop hi-tech infrastructure and infrastructure in

service of high technologies
Hi-tech parks / hi-tech zones
Agricultural zones applying hi-technologies

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IV. Law on Technologies transfer

Law No. 80/2006/QH11 on Technology Transfer

Be of full force and effect as from 1st July 2007
See also Law on Intellectual Property (Law No.
50/2005/QH11)

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IV. Law on Technologies transfer

Governing scope:

◦ Technology transfer activities in Vietnam, from Vietnam to

overseas, and from overseas to Vietnam; the rights and
obligations of entities participating in technology transfer
activities; the authority of State administrative bodies; and
measures for encouragement and promotion of
technology transfer activities.
◦ Vietnamese entities, Vietnamese residing overseas, and
foreign entities participating in technology transfer
activities.
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IV. Law on Technologies transfer

Technology transfer means transfer to a transferee of the

ownership right or the right to use either a part or the whole of a
technology by the party with the right to transfer such technology.

Technology transfer activities comprise both technology transfer

and technology transfer services (support activities during the
process of seeking, entering into and performing technology
transfer contracts).

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IV. Law on Technologies transfer

State management over technology transfer activities

Technologies

◦ That are encouraged to be transferred

◦ That are limited to be transferred
◦ That are prohibited to be transferred
Forms of technology transfer

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IV. Law on Technologies transfer

Incentives for encouraging and promoting technology transfer:

◦ Development of the technology market
◦ To encourage technology transfer to rural, mountainous
areas, areas with difficult socio- economic conditions
◦ Program for national technological renovation
◦ Provisions related to State funded scientific and technological
development research
◦ Policies in order to promote technology transfer activities:
 Taxes: import duty exemption; Value added tax exemption;
Corporate income tax exemption
 Favorable conditions for visa, residence and travel for
foreigners 33
V. Licensing agreement
Formation of contract

What is a contract?

“An agreement between the parties to establish, modify or terminate civil

rights and/or obligations”

- Contract can be made in any forms: orally, in writing or by specific acts

(Art. 119 Civil Code 2015 (1), Art. 24, 74 Law on Commerce 2005)

- Ordinance on Economic Contract 1989 (Pháp lệnh hợp đồng kinh tế

1989): An economic contract must be made in writing or exchange of
documents.
V. Licensing agreement
Offering to enter into contracts
- Offer to enter into a contract (Đề nghị giao kết hợp đồng): a clear
expression by the offeror of its intention to enter into a contract and to
be bound by such offer made to another specific party or the public
(hereinafter referred to as the offeree). It is defined in Art. 386, CC 2015

- In cases where the offer to enter into a contract clearly state the time
limit for reply and the offeror enters into the contract with a third party
within such time limit, he/she/it must pay compensation for damage to
the offeree and must not enter into the contract if damage is caused.
V. Licensing agreement
Invitation to treat

- Invitation to treat (Lời mời đàm phán/Lời mời thương thảo): an

indication that someone is prepared to receive offers with the view to
forming a binding contract.

- An Invitation to treat is NOT an offer!

- 04 types:
+Advertisements (quảng cáo)
+ Auction sales (bán đấu giá)
+ Exhibition of goods for sale (triển lãm hàng hóa)
+ An invitation for tenders (lời mời đấu thầu)
V. Licensing agreement
Invitation to treat
V. Licensing agreement
Partridge v Crittenden (1968) 2 All ER 421
 V. Licensing agreement
Partridge v Crittenden (1968) 2 All ER 421

Tóm tắt vụ việc

Bị đơn đã rao bán một số gà trống và gà mái Bramblefinch, nói rằng giá
mỗi con là 25 shilling. Theo Đạo luật Bảo vệ Các loài chim năm 1954,
việc chào bán bất kỳ loài chim sống hoang dã nào là bất hợp pháp. Hiệp
hội Hoàng gia về Phòng chống Sự tàn ác đối với Động vật (RSPCA) đã
đưa ra truy tố đối với bị cáo theo Đạo luật. Tại phiên tòa của mình, bị
cáo đã được các thẩm phán kết luận về hành vi phạm tội; ông đã kháng
cáo sự kết tội này.

Phân tích
Vấn đề kháng cáo là liệu quảng cáo có được hiểu đúng như một lời đề
nghị bán hàng (trong trường hợp này bị cáo có tội) hay một lời mời
thương thảo (trong trường hợp đó anh ta không phạm tội). Một vấn đề
khác là liệu có phù hợp để áp dụng một cách hiểu khác về cụm từ "chào
bán" trong ngữ cảnh luật hình sự hay không so với cách hiểu được chấp
nhận trong ngữ cảnh luật hợp đồng
 V. Licensing agreement
Partridge v Crittenden (1968) 2 All ER 421

Phán quyết
Tòa án cho rằng quảng cáo không phải là một lời đề nghị mà là một lời
mời thương thảo, và như vậy bị cáo không có tội.Tòa án cũng bác bỏ đề
xuất rằng tòa án nên áp dụng cách giải thích chặt chẽ cụm từ 'chào bán'
trong bối cảnh hình sự so với bối cảnh hợp đồng, lập luận rằng làm như
vậy sẽ chiếm đoạt chức năng lập pháp. Cơ quan lập pháp đã chọn cụm
từ "chào bán" dựa trên cách hiểu hiện có của nó và để thay đổi cách
hiểu này với lý do "diễn giải" không phải là vai trò thích hợp của tòa án.
 V. Licensing agreement
Partridge v Crittenden (1968) 2 All ER 421

The defendant placed an advert in a classified section of a magazine

offering some bramble finches for sale. S.6 of the Protection of Birds Act
1954 made it an offence to offer such birds for sale. He was charged and
convicted of the offence and appealed against his conviction.

Held:

The defendant's conviction was quashed. The advert was an invitation to

treat, not an offer. The literal rule of statutory interpretation was applied.
V. Licensing agreement
Spencer v Harding [1870] LR 5 CP 561
V. Licensing agreement
Spencer v Harding [1870] LR 5 CP 561

Các bị cáo đã quảng cáo bán đấu thầu cổ phiếu thương mại thuộc Eilbeck
& co. Quảng cáo nêu rõ nơi có thể xem hàng hóa, thời điểm mở thầu và
hàng hóa phải được thanh toán bằng tiền mặt. Quảng cáo không nêu cần
phải ứng trước bất kỳ khoản tiền cọc nào. Nguyên đơn đã nộp giá thầu
cao nhất nhưng bị đơn từ chối bán cho anh ta.

Phán quyết: Trừ khi quảng cáo chỉ rõ rằng giá thầu cao nhất sẽ được chấp
nhận, bị đơn không có nghĩa vụ phải bán cho người gửi giá thầu cao
nhất. Quảng cáo giống như một lời mời thương thảo, đấu thầu là một lời
đề nghị, bị đơn có thể lựa chọn có chấp nhận lời đề nghị hay không.
V. Licensing agreement
Spencer v Harding [1870] LR 5 CP 561

The defendants advertised a sale by tender of the stock in trade

belonging Eilbeck & co. The advertisement specified where the
goods could be viewed, the time of opening for tenders and that
the goods must be paid for in cash. No reserve was stated. The
claimant submitted the highest tender but the defendant refused to
sell to him.

Held:

Unless the advertisement specifies that the highest tender would

be accepted there was no obligation to sell to the person
submitting the highest tender. The advert amounted to an invitation
to treat, the tender was an offer, the defendant could choose
whether to accept the offer or not.
V. Licensing agreement
When an Offer to enter into a contract takes effects
Art. 391, CC 2015
1. The time when an offer to enter into a contract takes effect shall be
determined as follows:
a/ It is fixed by the offeror;
b/ If the offeror does not fix such time, the offer to enter into a contract
shall take effect from the time the offeree receives such offer.

2. An offer to enter into a contract shall be considered having already

been received in the following cases:
a/ The offer is transferred to the place of residence, if the offeree is an
individual; to the headquarters, if the offeree is a legal person;
b/ The offer is introduced into the official information system of the
offeree;
c/ When the offeree knew the offer to enter into the contract by another
mode.
V. Licensing agreement
Modification, revocation of offers to enter into contracts
Art. 389, CC 2015
1. The offeror may modify or revoke his/her offer to enter into a
contract in the following cases:
a/ If the offeree receives the notice on modification or revocation of
offer before or simultaneously with the time of receiving the offer;
b/ The conditions for modification or revocation of the offer arise in
cases where the offeror has clearly stated the eligibility for
modification or revocation of the offer when such conditions arise.

2. When the offeror changes the contents of the offer, such offer shall
be considered a new offer.
V. Licensing agreement
Cancelation of offers to enter into contracts
Art. 390, CC 2015
Where the offeror exercises the right to cancel the offer as such right
has been clearly stated in the offer, he/she/it must notify the offeree
thereof and such notification shall take effect only when it is received by
the offeree before the offeree replies to accept the offer to enter into the
contract.
V. Licensing agreement
Offer modification proposed by the offeree
Art. 392, CC 2015
When the offeree accepts to enter into a contract but states the
conditions therefor or modifies the offer, he/she/it shall be considered
having made a new offer.

Offeree’s options upon receiving an offer:

- Accept the offer
- Reject the offer
- Make a counter-offer
- Remain silent
V. Licensing agreement
Acceptance of offers to enter into contracts
Art. 393, CC 2015
If the offeree’s reply to the offeror on the acceptance of the whole
content of the offer.

Art. 393, CC 2015

1. When the offeror fixes a time limit for reply, the reply of acceptance
shall be effective only when it is made within that time limit; if the offeror
receives the reply when the time limit for reply has expired, the
acceptance shall be considered a new offer of the party late in replying.

2. In cases the notice on acceptance of an offer to enter into a contract

arrives late for objective reasons which the offeror knew or would have
known, such notice on acceptance of the offer to enter into the contract
remains effective, except for cases where the offeror immediately
replies not to agree with such acceptance of the offeree.
V. Licensing agreement
Termination of offers to enter into contracts
Art. 394, CC 2015
An offer to enter into a contract shall terminate in the following cases:
1. The offeree replies that the offer is accepted.
2. The offeree replies not to accept the offer;
3. The time limit for reply of acceptance has expired.
4. When the notice on modification or revocation of the offer takes
effect;
5. When the notice on cancellation of the offer takes effect;
6. It is so agreed upon by the offeror and the offeree within the time limit
for reply by the offeree.
V. Licensing agreement
Terms of contract
Art. 398, CC 2015
1. Subject matter of the contract (Đối tượng);
2. Quantity and quality;
3. Price and method of payment;
4. Time-limit, place and method of performing the contract;
5. Rights and obligations of the parties;
6. Liability for breach of contract (Trách nhiệm do vi phạm hợp đồng);
7. Methods of settlement of disputes.
V. Licensing agreement
License overview
What is a license?

“A permit from an authority to own or use something, do a

particular thing, or carry on a trade “
V. Licensing agreement
License overview

WHY LICENSE?
Ideas, innovations and other expressions of human creativity are
converted into private property and protected by law through the
intellectual property system.
As property, they are tradable assets. Licensing, the right granted by
an owner of such an asset to another to use that asset while
continuing to retain ownership of that asset, is an important way of
creating value with these assets.
Licensing creates an income source, disseminates the technology to a
wider group of users and potential developers and acts as a catalyst
for further development and commercialization.
V. Licensing agreement
Overview

Every license agreement is unique, reflecting the particular needs

and expectations of the licensor and licensee.

An infinite variety of agreements are possible, limited only by the

needs of the parties and by the parameters of the relevant laws
and regulations.

However, certain issues are fundamental to the success of an

agreement and remain common to most licensing agreements.
Such issues are, therefore, useful starting points in preparing for a
future negotiation.
V. Licensing agreement
Advantages of licensing

For the Licensor For the Licensee

A company that cannot or does There is often a rush to bring new
not want to be involved in the products onto the market. A
manufacture of products could license agreement that gives
benefit from licensing-out access to technologies, which are
technology by relying on the better already established or readily
manufacturing capacity, available, can make it possible for
distribution of outlets, local an enterprise to reach the market
knowledge and management and faster with innovative technology.
other expertise of one or more
partners.
V. Licensing agreement
Advantages of licensing

For the Licensor For the Licensee

Licensing-out allows the licensor A company that may not have the
to retain ownership of the resources to conduct its own
intellectual property in the research and development may,
technology and to derive an through licensing, gain access to
economic benefit, usually in the technical advances that are
form of royalty income, from it. necessary to provide new or
. superior products.
V. Licensing agreement
Advantages of licensing

For the Licensor For the Licensee

Licensing-out could also help a There are licensing-in
company to commercialize its opportunities that, when paired
technology or expand its current with a company's current
operations into new markets more technology portfolio, can create
effectively and with greater ease new products, services and
than on its own. market opportunities.
.
V. Licensing agreement
Disadvantages of licensing

For the Licensor For the Licensee

The licensor’s own investment can The licensee may have made a
sometimes generate better profits financial commitment for a
than operating through a license technology that is not “ready” to be
agreement. commercially exploited, or that
. must be modified to meet the
licensee’s business needs.
V. Licensing agreement
Disadvantages of licensing

For the Licensor For the Licensee

A licensee can become the A technology license may add a
licensor’s competitor. The licensee layer of expense to a product that
may, if granted the right to operate is not supported by the market for
in the same territory, “cannibalize” that product. It is fine to add new
sales of the licensor, causing the technology, but only if it comes at
latter to gain less from royalties a cost that the market will bear in
than it loses from sales that go to terms of the price that can be
its new competitor. The licensee charged. Multiple technologies
may be more effective or get added to a product can result
to the market faster than the in a technology-rich product that is
licensor because it may have too expensive to bring to market.
fewer development costs or may
be more efficient.
.
V. Licensing agreement
Disadvantages of licensing

For the Licensor For the Licensee

A license agreement can be Companies relying on licensed
disadvantageous when the technology may become too
technology is not clearly defined or technologically dependant, which
is not complete. In such a case the could eventually become a barrier
licensor may be expected to to their future expansion or their
continue development work at ability to adapt, modify or improve
great expense to satisfy the their products for different
licensee. markets.
.
V. Licensing agreement
Structure

1. Parties (“Licensor”) (“Licensee”)

2. Subject Matter, Scope and Territory
3. Licensor’s Obligations
4. Licensee’s Obligations
5. Improvements
6. Payment
7. Infringement (sự vi phạm)
8. Period
9. Waiver
10. Applicable law; choice of jurisdiction; arbitration/mediation
11. Force majeure (bất khả kháng)
12. Closing; signatures, date and place, date of effectiveness