1. Introduction Patents
Types of Patents
There are two types of Patents, such as:
(1) Patent for Invention (technical solution, which is novel, is of inventive nature and is susceptible of industrial application).
(2) Patent for Utility Solution (technical solution, which is novel susceptible of industrial application).
Duration of Patent/Utility Solutions
(1) Title of protection of an Invention is a Patent for Invention, which shall have legal effect from the granting date and shall expire 20 years after the filing date of the Application (Vietnamese Filing Date of National Application or after the International Filing Date)..
(2) Title of protection of an Utility Solution is a Patent for Utility Solution, which shall have legal effect from the granting date and shall expire 10 years after the filing date of the Application.
Right to file the Application for register of Patent for Invention
The following organizations and individuals shall have the right to register inventions,
(a) Authors who have created inventions by their own labour and at their own expense;
(b) Organizations or individuals who have supplied funds and material facilities to authors in the form of job assignment or hiring, unless otherwise agreed by the parties involved.
Priority Right
(1) Vietnam is a member of Paris Convention and has become a member of PCT since 1993. The priority right may be claimed if the applicant files a Patent/Utility Solution Application in Vietnam within 12 months counted from earlier priority date. Under PCT Route: The due date for the entry into National Phase in Vietnam is 31 months counted from Priority Date. Later entry might be acceptable if the applicant can explain the suitable reasons.
(2) Bilateral Agreement to which Vietnam is a party having the provision of applying the priority.
Objects ineligible for protection as inventions
The following objects shall be ineligible for protection as inventions:
(1) Scientific discoveries or theories, mathematical methods.
(2) Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games and doing business; computer programs.
(3) Presentations of information.
(4) Solutions of aesthetic characteristics only.
(5) Plant varieties, animal breeds.
(6) Processes of plant or animal production which are principally of a biological nature, other than microbiological processes.
(7) Human and animal disease prevention methods, diagnostic and treatment methods.
Conditions for Patentability
a/Novelty
(1) An invention shall be deemed novel if it has not yet been publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application.
(2) An invention shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.
(3) Grace period for novelty of Inventions and Utility Solutions
An invention shall not be deemed to have lost its novelty if it is published in the following cases, provided that the invention registration application is filed within six (6) months from the date of publication:
(a) It is published by another person without permission from the person having the right to register;
(b) It is published in the form of a scientific presentation by the person having the right to register it;
(c) It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register.
b/Industrial Applicability
An invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.
c/ Inventive step (in case of Patent for Invention only)
An invention shall be deemed to be of an inventive nature if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art.
2. Patent/Utility Solution Application procedures
2.1. Application for register of Patent for Invention/Utility Solution
The Application for register of Patent for Invention/Utility Solution must be filed with the National Office of Industrial Property (NOIP). All applicants shall submit a request for the grant of a Patent/Utility Solution together with the description, claims, abstract and drawings (if any).
2.2. Filing Requirements
National Patent/Utility Solution Application
(i) The Invention/Utility Solution description including claims, abstract and drawings (if any) – 1 copy;
(ii) Certified true copy of Priority documents (in case of National Application only);
(iii) Power of Attorney duly executed by applicant only, if the applicant is natural person and Power of Attorney duly executed by applicant and beared the seal of the Applicant (if the applicant is legal person). The notarization or legalization by Vietnamese Consulate is not necessary;
Patent/Utility Solution Application under PCT Route
Document (i), (iii), and the following documents:
(i) PCT Specification as published – 1 copy;
(ii) International Search Report enclosed schedule of amendment (if any);
(iii) Demand;
(iv)International Priliminery Examination report enclosed schedule of amendment (if any);
Note: The P/A can be filed within 34 months counted from priority date. Other documents can be submitted within one month.
2.3. Formality Examination
Upon receipt of the Application, the examiner shall check whether the Application satisfies the formality requirements needed for the grant of a regular filing date. The Regular Filing Date is very important under the present “first-to-file” system because it serves to determine, in case of a dispute with another applicant for the same Invention, who has the right to Patent/Utility Solution.
2.4. Publication of Patent/Utility Solution Application
All Patent/Utility Solution Applications, which are accepted in due form made, will be published on the Official Gazette in the 19th month from the priority date. If the request for examination as to substance is filed before that date, the Application shall be published together with such request.
2.5. Request for Substantive Examination
Substantially Examination is conducted upon request. The Request for Substantially Examination of the Patent Application must be filed within 42 months and of Utility Solution Application must be filed within 36 months counted from the Priority Date. The Application is considered withdrawn if no Request is made within that period. If the Examiner find grounds for the refusal, the NOIP shall notify the applicant of the reason for refusal/rejection and give the applicant the chance to amend the Application.
2.6.Decision for grant of Patent/Utility Solution or decision for refusal
If the examiner does not find any ground for the refusal of the Application, or if amendment or correction satisfactorily complies with the notice of reason for refusal, the examiner shall issue a decision to grant of Patent/Utility Solution. Otherwise, the examiner shall refuse the Application.
Appeal
(1) Every applicant may lodge an appeal to the General Director of NOIP the final refusal to grant of a Patent/Utility Solution within two months from the mailing date or within three months from the date of undersign. The decision of General Director shall become final and executory thirty (15) days after receipt of a copy by the appellant unless within the same period.
(2) If the applicant is still not satisfied with the decision of the General Director, he may appeal to the Ministry for Science and Technology or appeal to the Court.