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PATENT SUBJECT MATTERS
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APPLICATION
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POST GRANTING PROCEDURES
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Name of Vietnam Patent Act and any statute or
code into which it may be incorporated? Date of promulgation and
Effective Date of the Act?
There is no specific Patent Act, but it is incorporated into the
following legal texts:
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Part VI
chapter 2 of Civil Code of Socialist Republic of Vietnam adopted by the 9th
National Congress on October
28th 1995, effected from July 1st
, 1996 on Industrial Property Rights.
- Decree 63/CP passed by the Government on October 24th,1996,
revised and amended according to Decree 06/2001/ND-CP dated February 1st
, 2001 on Industrial Property
- Circular 30/2003/TT-BKHCN promulgated by
Ministry of Science and Technology dated November 5th 2003
and came into force on November 27th 2003 guiding the
procedures for acquisition of Patent right with respect to inventions
and utility solutions.
PATENT SUBJECT MATTERS
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What is an invention/ utility solution
definition in Vietnam law?
An
invention
is a technical solution that is distinguished by having worldwide
novelty in terms of the present state of technological development
and, involves inventive step and is applicable to various social and
economic fields.
A
utility solution
is a technical solution that is new in terms of the present
technological development in the world and, is applicable in various
economic and social fields.
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What kinds of things are patentable as
inventions or utility solutions under the Vietnam
Patent Law?
The subject matters of inventions or utility
solutions may be:
a) a
device
b) a
process
c)
a
substance
d)
Microorganism
and
e) an use
of known device, process or substance according to a new function (new
use).
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What kind of things is excluded from protection
as an inventions or utility solution under the Vietnam
Patent Law?
The
following subject matters are excluded from patent protection as
invention or utility solution:
a)
Scientific ideas, principles and discoveries;
b)
Methods
and systems of economic organization and management;
c)
Methods
and systems of education, teaching and training;
d)
Methods
for training of domestic animals;
e)
Language
systems, systems of information, data classification and arrangement;
f) Designs
and planning diagrams for construction projects, projects of regional
planning and zoning;
g)
Solutions
for appearance of products which are aesthetic and not technical in
nature;
h)
Defined
signs, schedules, rules and laws, symbols;
i)
Computer
software, designs and layout of electronic chips, mathematical models
and reference diagrams and the like;
j)
Breeds of
animal and seeds of plants;
k)
Methods
of disease prevention, diagnosis and treatment for human beings and
animals;
l) Processes
of a biological nature (except for microbiological processes) for
production of plants or animals.
m) Technical Solutions, which are contrary to social interests, public
order, humanitarian principles or socialist morality, shall not be
considered as inventions or utility solutions
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Is computer software patentable under Vietnam
Patent Law?
No. Computer software is the subject of copyright
protection in Vietnam.
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Are business methods patentable under Vietnam
Patent Law?
No.
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Which are patentable criteria of invention under Vietnam Patent Law?
Absolute World-wide Novelty
A technical solution applied for patent of invention can not
have been made publicly available, written or oral, or by use or in
any other way before its priority date. Namely, a technical solution
shall be considered to be of the worldwide novelty if, before the
priority date of the patent application of the solution, (i) it is not
identical with any solution described in earlier patent applications,
and (ii) it has not been disclosed in Vietnam and abroad in any form
of use or description to the extent that based on such description any
person of ordinary skill in the art can effect the solution.
Information on a technical solution shall not be considered publicly
disclosed unless it is accessible to the general public.
Inventive Step
A technical solution shall be deemed to involve an inventive
step if it is a result of creative work and, based on the state of the
art in Vietnam
and abroad up to the priority date, is not obvious to a person with
ordinary skill in the art.
Applicability
An invention or utility solution shall be deemed
applicable in various social and economic fields
if on the
basis of the nature of the solution as described in the patent
application of an invention or utility solution, it may be implemented
in current or future technical conditions and the results described in
the patent application may be obtained.
APPLICATION
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Who may file patent applications in
Vietnam?
A patent application
for an invention, utility solution may be filed by the
inventor(s)/creator(s) or his/her (their) successor(s) in title or any
another person/company acquiring the right from the inventor(s) to the
invention, utility solution.
Two or more parties may apply jointly.
Foreign applicants not resident in Vietnam or without a legal
representative or a real and effective industrial or commercial
establishment in Vietnam may carry out the filing of application and
related procedures only through an empowered industrial property agent
like AMBYS.
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Does the power of attorney from an applicant to
a patent agent need to be notarized or legalized?
No, the power attorney from an applicant to a
patent agent does not need to be notarized or legalized, but simply
signed by the applicant or its authorized representative.
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What
kinds of documents of PCT applications must be translated into
Vietnamese when entering into Vietnam national phase?
The documents of PCT applications must be
translated into Vietnamese when entering into National Phase shall
include: description, claims, reference of drawings, abstract, if any
of those parts amended, both as originally filed and as amended
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What is the time limit for submitting
Vietnamese translation of patent specification?
English specification of non-PCT applications can
be filed first provided that Vietnamese translation of specification
shall be filed within 03 months following the filing date of the
application. Vietnamese translation of specification of PCT
applications must be submitted at the latest by the due date of
entering into National Phase.
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What is the time limit for filing Request for
Examination? Is there any grace period for filing such request?
Request for examination as to substance is
required to be filed within 42 months for invention
applications and 36 months for utility solution applications
counted from the earliest priority date. Belated Request for
Examination is permissible within 6 months after the termination of
the above mentioned time limit with a reasonable reason subject to
payment of fee for extension of time for late filing.
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When a patent application will be published?
What is the content of publication?
In general, patent applications will be published
in the 19th month from the earliest priority date. PCT applications
and applications with the request for examination filed before the
date of acceptance of the application as to form will be published in
the 2nd month from the date of acceptance of the application as to
form. Applications with the request for earlier publication will be
published in the 2nd month from the request date or the date of
acceptance as to form depending on the later date. Applications with
the request for examination filed after the date of acceptance as to
form but before the expiry of the 18th month from the priority date
shall be published in the 2nd month from the request date.
Content of publication of patent application in
the Industrial Property Gazette of the NOIP shall encompass abstract,
at least one drawing (if any) and bibliographic data. Detailed
information including full specification can be accessible at the NOIP
under request and subject to prescribed fee.
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Is it possible to oppose patent application under Vietnam
Patent Laws?
Opposition may be lodged with the NOIP by any
third party during substantive examination with respect to published
applications. Opposition will be considered by the NOIP at the same
time with examination of the patent application.
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How
long does it take to get a patent?
It
depends on the time of request for substantive examination. Formality
examination shall be conducted with all patent applications
automatically within one (01) from the date of filing with respect to
national patent applications or entering into national phase with
respect to the PCT applications. Substantive examination shall only be
taken under the request and it last for 12 months from the request
date or publication date depending on the later date.
POST GRANTING PROCEDURES
Maintenance
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What is the Term of Patent for Inventions and Utility
Solutions?
Patents
for invention or utility solution shall take effect from the granting
date. The term of patent shall be 20 years for inventions, 10 years
for utility solutions, counted from the filing date, subject to
annuity payment.
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How to maintain the Patent validity?
To maintain Patent Validity, the patentee must pay annuities
in due course. The First Year of Patent Validity shall be calculated
from the Date of Patent Granting. The Validity Year of Patent shall
start from the Expiration Date of the preceding Validity Year and
terminate on the same day and month of the succeeding Year. Due Date
of Annuity Payment shall be the Anniversary of the Date of Patent
Granting. The first annuity shall be paid upon the patent grant.
The annuity for each of the subsequent years
must be paid within 6 months before the Due Date. A six-month grace
period is however permissible subject to the penalty of 10 percent of
the said annuity for each month over due.
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Is it possible to recover Patent Validity in case of
failure in payment of annuities?
Yes. In
case the Patentee fails to pay annuity fee beyond the six- month grace
period, Recovery of Patent Validity is permissible, provided that (a)
the validity of the Patent has not been suspended according to a third
party's request and (b) before expiration of 12 months from the
annuity due date the Patentee shall file a Request for Recovery and
pay the recovery and missing annuity fees. The person using patent
within the period of the Interruption of Patent Validity shall be
entitled to continuing use without widening the scope and volume of
such use.
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What
are the Rights and Obligations of Patent Owners?
A
patent owner shall be entitled to
(i) exclusive use of the patented invention or
utility solution, including the right to license,
(ii) request any person infringing his patent
rights to cease from the infringement and ask for any damage suffered.
The
patent owner has certain obligations including
(i)
to pay remuneration to the inventor(s),
(ii)
pay the annuity or renewal fee for maintenance or renewal of the
patent, and
(iii)
use or license the patented inventionm or utility solution to a
third party in the form of compulsory license according to the
decision of the competent State authority.
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What are Inventor's rights?
The author(s) of an invention, utility solution shall have
the moral and material rights, namely:
(a) To have his or her or its name stated in the certificate of
protection and in the National Registration Book of inventions,
utility solutions, as the author(s) and in other documents published
in relation to such objects:
(b) To receive remuneration from the patent owner
(c) To request measures be taken, or to take legal action,
against infringement of his or her or their rights above.
The material rights
and the rights to request measures to be taken or to take legal
action of the author of an invention, utility solution as above stated
may be transferred to another person and/or bequeathed in accordance
with law.
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What is the act of patent infringement?
The
following acts, committed without the consent from a patent holder,
shall constitute a patent infringement:
(i)
manufacturing products using a patented invention or utility solution;
(ii)
using, importing, advertising or circulating products that have been
manufactured using a patented invention or utility solution; and
(iii)
Applying patented process in Vietnam.
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Are there Limitations to Patent Rights?
Patent
rights as mentioned above are subject to certain limitations as
mentioned below:
Prior Users' Rights
An individual or entity that, prior to the
publication date of the patent application, had used the invention,
utility solution independently of the patentee, shall have the right
to continue the use after the patent is granted. However, the prior
user can not extend the scope or increase the volume of use compared
with the use prior to the publication date of the application. Prior
user's right can not be transferred.
Compulsory License
The Ministry of Science and Technology (MOST) may
grant a compulsory license in the following circumstances:
The patentee fails to use the patented invention,
utility solution, or used but not compatible with the socio-economic
development of Vietnam,
without any justifiable reasons;
The person willing to use the invention, utility
solution has tried by every means to negotiate with the patentee with
a reasonable price to enter a license but failed;
The use
of the patented invention, utility solution is to serve the demands of
national defense and security, prevention and treatment of human
disease or other urgent needs of the society.
The
licensee of a compulsory license shall have to pay the patentee a
certain amount of royalties as specified in the decision of granting
compulsory license from the MOST.
Other Limitations
The following cases are also not covered by the
patent rights:
The use is not for commercial purposes;
The circulation and use of the products that are
sold or marketed by the patentee, his assignee or licensee or a prior
user;
The use of the patented invention or utility
solution on foreign means of transportation which are in transit or
temporarily located in the territory
of Vietnam and such use is only for the purpose of maintaining the
operation of such means.
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