The Law on Technology Transfer 2017 is drafted based on the assumption that a technology (công nghệ) can be transferred as a property (tài sản). But in light of the provisions of the Civil Code 2015, one may have to ask whether technology is a property?
Transferring technology means the transfer of the ownership or the use right of a technology from a transferor to a transferee. In addition, Article 7 of the Law on Technology Transfer 2017 says that the owner of a technology may assign its ownership or license its use right of the technology. Therefore, the Law on Technology Transfer 2017 implies that, to transfer a technology, the transferor must have the ownership of such technology. Under the Civil Code 2015, ownership can only be created upon a property. Thus, the technology under the Law on Technology Transfer 2017 should be a property.
However, technology as defined by the Law on Technology Transfer 2017 may not be a property. Article 2.2 of the Law on Technology Transfer 2017 defines technology as a solution (giải pháp), process (quy trình), and know-how (bí quyết) which can turn resources into products. Article 105 of the Civil Code 2015 says that property comprises objects (vật), money (tiền), valuable papers (giấy tờ có giá), and property rights (quyền tài sản).
The definition of technology suggests that technology is something intangible. Therefore, it is not an object. For the obvious reason, technology is not money, or a valuable paper.
Then can a technology may be property right? Solution, process, and know-how is arguably not a right. But a right to solution, process, and know-how can be property right. Article 115 of the Civil Code 2015 says that property rights are rights being able to be valued in terms of money, including property rights in respect of subjects of intellectual property rights, land use rights and other property rights. Accordingly, a transfer of technology should be considered as a transfer of rights to such technology.
Solution, process, and know-how can be the subjects of intellectual property rights. Therefore, a right to technology can be intellectual property right, thus, a property right. However, the law is not clear whether there is any money-worth right other than intellectual property right can be created upon technology?
This post is contributed by Ha Thanh Phuc, a trainee at Venture North Law.