Introduction

The TRIPS Agreement, the Paris Convention of 1967, the Berne Convention of 1971, the Rome Convention of 1981, the Washington Agreement of 1989, the Madrid Agreement, the Madrid Protocol, and the Patent Cooperation Treaty are just a few of the international agreements on intellectual property rights that Vietnam is a party to (PCT). Additionally, the Vietnam Intellectual Property Law of 2005 and associated implementing regulations contain extremely precise requirements, information on intellectual property rights in general, and rights to an invention in particular.

In accordance with Law on Intellectual Property (Article 90.1), the protective title may only be awarded to the valid application with the earliest priority in cases when multiple applications are filed for registration of the same invention, related inventions, or industrial designs.

Patent Filing Im Vietnam

The TRIPS Agreement, the Paris Convention of 1967, the Berne Convention of 1971, the Rome Convention of 1981, the Washington Agreement of 1989, the Madrid Agreement, the Madrid Protocol, and the Patent Cooperation Treaty are just a few of the international agreements on intellectual property rights that Vietnam is a party to (PCT). Additionally, the Vietnam Intellectual Property Law of 2005 and associated implementing regulations contain extremely precise requirements, information on intellectual property rights in general, and rights to an invention in particular.

In accordance with Law on Intellectual Property (Article 90.1), the protective title may only be awarded to the valid application with the earliest priority in cases when multiple applications are filed for registration of the same invention, related inventions, or industrial designs.

WHO CAN REGISTER PATENT IN VIETNAM?

1. The person who creates the invention at his own expense and effort.

2. Any organization and individuals that hiring others to create the invention based on their investing money and material.

3. In case many organizations and individuals jointly create or invest for creation of the invention, such organizations and individuals have the right to register a patent only with the consent of all parties of the invention.

4. In case an invention is created using material and technical facilities and money from the state budget, the Government shall provide for the right to registration of the patent.

CONDITIONS OF PATENT PROTECTION IN VIETNAM

1. Novelty: An invention is considered novelty if it has not been publicly performed in any form. There are some exceptions as follows:

i) An invention shall be considered not to be publicly disclosed if being revealed to a limited number of people who are obligated to keep it confidential.

ii) An invention shall not be considered novelty if it is published in the following cases, provided that the invention registration application is filed within 12 months from the date of publication:

a. The invention was published by others without the permission of the person having the right to register.

b. The invention is published by the person having the right to register, in the form of a scientific report.

c. The person with the right to register exhibits an innovation at a national exhibition in Vietnam or a legitimate international exhibition.

2. Innovative: An invention is deemed to have a step if the technological solutions were publicly revealed in the nation or abroad prior to the filing date of the patent application or the priority date asserted, whether by use, through written description, or in any other manner. So, in order to assess an invention's novelty, it is required to make comparisons with technical solutions that have already been made public in all nations of the world. A minimum of one fundamentally technical sign that differs from the reference technological solution and is not readily producible must be included in an invention.

3. Industrial applicability and be lawful: The industrial applicability of an invention denotes that the invention can be manufactured in any kind of industry having stability in products.

5 STEPS TO FILE A PATENT

There are five steps to file a patent which are as follows:

1. Way of filing a patent: The patent applicant can file patent in Vietnam directly or through the deadlines mentioned in Paris Convention/ Patent Cooperative Treaty.

2. Examination of patent: After the patent is filed in Vietnam, the NOIP will examine the formality of the patent application within 1-2 months counted from the filing date. However, the actual time may be longer.

3. Publication of patent: The Vietnam patent application shall be published on Vietnamese IP Gazette within 19 months counted from the first filing date or date of accepting its legitimate whatever comes later.

4. Substantive examination result: Within 18 months after the publication date, the substantive examination result must be released. However, because of the NOIP backlog, the practical time is greater. The patent must be granted within one to two months if the results demonstrate that it satisfies the need for protection. If not, the patent applicant has three months, which may be extended for another three months, to reply to the rejection.

5. Patent Grant: NOIP must grant the patent in Vietnam between one and three months after receiving the notice of patent granting. In Vietnam, a patent is valid for 20 years beginning on the filing date. Annual payment of annuities is required.

TERM FOR FILING PATENT APPLICATIONS

The term for filing patent applications in Vietnam is 12 months. The deadline of 12-months applicable for the patent applications filed under Paris Convention cannot be restored.

MINIMUM FILING REQUIREMENTS

When a person files a patent, he must specify:

Applicant's name and address

 Inventor's name and address

Specification, title of the invention and set of claims

Priority application data

LANGUAGE OF THE PATENT APPLICATION

Vietnamese is the language used for filing patent applications in Vietnam. The application documents must be submitted in Vietnamese at the time of filing.

PRIORITY DOCUMENT

The priority document must be submitted within three months from filing a patent application in Vietnam. Translation into national language is not usually necessary.

POWER OF ATTORNEY

A simply signed original Power Of Attorney must be submitted within one month from filing the patent application in Vietnam. Notarization or legalization is not required.

SUBSTANTIVE EXAMINATION REQUEST

The application must include a request for the substantive examination, or it must be made within 42 months of the earliest priority date. There is a programme for rapid testing accessible. Furthermore, you can request to use the search and examination results from an ASPEC member countries to hasten the test procedure.

PUBLICATION AND OPPOSITION PERIOD

The application is published within 19 months from the filing or priority date. The period for filing an opposition against a Vietnamese patent application by a third party commences on the publication date and ends before the granting date. It means that the period for the opposition is not fixed.

GRANT AND MAINTENANCE FEES

The grant fee must be paid within three months from the date when a decision to grant a patent is issued. Annual maintenance fees in Vietnam are due for each year after the grant of the patent. The first annuity is usually settled together with the official fee for the grant. All subsequent annuities should be paid within six months before the anniversary of the grant date. Late payment is possible within six months after the due date alongside payment of a surcharge.

GRACE PERIOD

If the disclosure of the information on the invention has been made by the applicant, inventor or assignee at the officially recognized exhibition within 12 months before the date of filing, such disclosure does not disprove the novelty of an invention.

REPRESENTATION BY A PATENT ATTORNEY

It is required for the foreigners to perform the patent prosecution in Vietnam through an agent, a Vietnamese registered patent attorney.

CONCLUSION

Patent applications are filed for protecting similar inventions. There are certain conditions for filing a patent in Vietnam such as novelty, inventive and industrial applicability. The patent law in Vietnam prescribes the procedure for filing a patent before NOIP.

Author : Ridhi Jindal pursuing B.A.LL.B from Government Mohindra College, Patiala., in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

REFERENCES

1. https://www.ip-coster.com/IPGuides/patent-vietnam

2. https://vietanlaw.com/patents-registration-in-vietnam/

3. https://aslgate.com/procedure-patent-vietnam/

4. https://abbfirm.com/patent-registration-in-vietnam/