Can people continue to use inventions after they have protection titles in Vietnam?
Our factory invented a new woodworking machine and we have applied in the factory for a period of time. However, we haven't registered for it yet. Recently, a company has just obtained a protection title of our product. Then, they asked us to stop using this invention. Is that legal? We currently have a partner who wants to buy our factory, can we transfer the rights to them?
Pursuant to Clause 1 Article 134 of the Law on Intellectual Property in 2005 (amended by Clause 16 Article 1 of the Law on Amending and Supplementing Law on Intellectual Property in 2009) stipulating right of prior use of inventions and industrial designs in Vietnam as follows:
In case a person has. before the filing date or priority date (if any) of an invention or industrial design registration application, used or prepared necessary conditions for using an invention or industrial design identical with the protected invention or industrial design stated in that registration application but created independently (below referred to as prior use right holder), then after a protection title is granted, he/she may continue using such invention or industrial design within the scope and volume of use or use preparations without having to obtain permission of or paying compensations to the owner of the protected invention or industrial design. The exercise of the right of prior users of inventions or industrial designs is not regarded as an infringement upon the right of invention or industrial design owners.
As regulations above, your factory has been using the invention before it has the protection title. Therefore, you shall be permissible to continue to use it in production. In this case, the exercise of the right of prior users of invention shall not be deemed an infringement of the right of the owner of the invention.
Pursuant to Clause 2 Article 134 of the Law on Intellectual Property in 2005 (amended by Clause 16 Article 1 of the Law on Amending and Supplementing Law on Intellectual Property in 2009) stipulating as follows:
Holders of prior use right to inventions or industrial designs may not assign such right to others, unless that right is assigned together with the transfer of business or production establishments which have used or are prepared to use the inventions or industrial designs. Prior use right holders may not expand the use scope and volume unless it is so permitted by invention or industrial design owners.
As regulations above, you are permissible to sell the factory but it may not expand the use scope and volume unless it is so permitted by invention or industrial design owners.
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