PATENT PROCEDURES

Formality examination
All patent applications for invention or utility solution, including PCT applications shall be examined as to formality by the NOIP. It takes one (01) month from the filing date for the VNIPO to check whether the application (i) is made in conformity with the prescribed formalities for patent applications, namely: applicant(s), inventor(s), Deed of Assignment, Power of Attorney, priority, classification, fees; (ii) preliminary check the unity of the application and (iii) check if the solution under the application falls into non-patentable subject matters.
During the formality examination period, it is possible for the applicant to supplement documents or to correct the information of the application, the supplementary or correct must not go beyond the initial disclosure or change the nature of the invention, utility solution sought for protection.
 
Notice of shortcomings in formality examination period
If the application has shortcomings in terms of formalities, the NOIP shall issue a shortcoming Notice and the Applicant shall have 2 months from the date of Notice to file response, this period is extensible for a further period of 2 months.
 
Publication of the application
All the patent applications that are accepted as to form shall be published in IP Gazette, Volume A (for application) in the 19th months from the earliest priority date or from the filing date (if no priority is claimed) or earlier under the request of the Applicant.
 
Request for Substantive examination
The time limit for filing request of substantive examination is 42 months from the earliest priority date with respect to applications for inventions and 36 months with respect to application for utility solutions. Belated request for substantive examination is permissible within 12 months grace period subject to pay extra fee and to submit a reasonable reason.
 

 
Substantive examination
Substantive examination shall only be carried out by the NOIP under the request therefore filed by the applicants or third parties with respect to the published patent applications.
It takes 18 months for the NOIP to examine patent applications from the date of receipt of the request for substantive examination if such request is filed after publication of the application or from the publication date if such request is submitted before publication of the application.
The applicant may file voluntary amendments to the patent application during the substantive examination period, provided that such amendments may not change the invention or utility solution or extend the scope of the claimed protection. He may also divide or withdraw the patent application at any time prior to the end of the substantive examination period.
The applicant may also convert patent application into utility solution application or vice versa just once.
The NOIP may suspend the substantive examination in the following cases:

• The nature of the applied solution is not clearly described.
• The subject matters of the applied application belongs to non-patentable one.
• There is a request or declaration of abandonment from the applicant.

 
Third party’s opinion or opposition
According to Vietnam IP Law, opposition procedure as such is not available, it should be named as opinion from third party(ies). Any third party may submit their opinion on the possibility of granting or refusal of patent with respect to published invention/utility applications. The third party’s opinion must be made in writing and lodged with the National Office of Intellectual Property (NOIP) during the period of substantive examination of the applications. The opposition shall include the grounds therefore together with documents or references evidencing those grounds. The opposition shall be subject to pay the prescribed fee and shall be examined together with the examination of the patent applications. The NOIP’s Notice of allowance or refusal of patent with respect to the opposed applications must also be sent to the opposing parties.
 
Notification of reason for refusal
Upon expiry of the substantive examination period, if the invention, utility solution is found un-patentable, the NOIP will issue a Notification of Examination Result of Application to the Applicant and/or the concerned party notifying of its intended refusal with reasons therefore or deficiencies which need to be corrected within the time limit set out by NOIP in the Notification. The applicant must respond to the NOIP within the time limit of three (03) months and the term is extensible for one more term of three months, and if the applicant fails to respond or the response is unsatisfactory, the NOIP will officially reject the application with a Decision of Refusal of Granting Patent.
 
Invitation to pay fee for Registration, Publication, Granting patent and First Annuity
 
If the substance examination finds the invention, utility solution patentable, the NOIP will issue a Notification to invite the applicant to pay fee for registration, publication, granting and first annuity with respect to the patent. Such payment shall be made within 03 months from the signing of the Notification and this term is extensible for a further period of 3 month.  Failure to pay the fee within the time limit shall result in refusal of the application by the NOIP
 
Registration and Publication of Patent
Granted patents for Invention and utility solution shall be published in the IP Gazette, Volume B within the 2 months from the date of Decision for granting patent and enter into the National Register of Industrial Property
 
Appeal to NOIP’s Board of Appeal
The time limit for appeal to the NOIP’s Board of Appeal is 90 days from the issuance date of the Decision of Refusal and the appeal shall be considered by the NOIP’s Board of Appeal within 30-45 days as provided by the law.
In case the applicant does not agree with the NOIP’s  Decision it may file further appeal to the Ministry of Science and technology (MOST) or bring the case before the Administrative Court.
 
 
Appeal to MOST
The time limit for filing appeal at to the MOST  is 30 days from the receiving date of the NOIP’s Refusal Decision. The MOST shall consider the appeal within 45-60 days. The MOST may invite the relevant parties to have their opinions or establish a panel for cons, thus in practice, it often takes much longer for the MOST to issue its decision.
 
Appeal to Administrative Court
There is two-instance of hearing by the Provincial Administrative Court
 
First instance:
1.     The time limit for initiating the case before the Court is 1 year from the date of issuance of the NOIP’s Board of Appeal Decision.
2.     Within 7 days the Court shall notify relevant parties of the content of the complaint and give the parties 10 days for submitting their opinion.
 
3.     Within 60 days, the responsible judge shall issue one of the following decision on:
-         Trial the case.
-         Temporary suspension of the case.
-         Suspension of the case.
 
4.     Within 20 days from the date of the decision on trial of the case the Court shall hear the case.
 
Second instance: To review a judgment of the first instance
1.     Judgment of the first instance can be appealed by any relevant parties.
2.     The time limit for appeal is 10 days from the date of the judgment of the first instance.
After 60 days from receiving all the documents from the Court of the first instance, the Appeal Court shall rehear the case.