1. What may be patented?
The applicant must decide to file an application for an invention or for a utility solution. To be patented, an invention is subject to more substantive requirements than a utility solution. Specifically, both must be a technical solution and satisfy standard requirements as to unity, novelty and industrial application, but an invention must involve, in additon to the above, an inventive step.
2. What shall not be patented?
The following subject matters are excluded from patentability:
· Discoveries, scientific theories, mathematical methods;
· Schemes, plans, rules and methods for performing mental acts, training of domestic animals, playing games, doing business; computer programs;
· Modes of presentation of information;
· Solutions having only aesthetic characteristics;
· Plant varieties, animal breeds;
· Processes for production of plants and animals which are essentially of biological nature, but not micro-organic processes;
· Method for the prevention, diagnosis and traitment of human and animal deseases.
3. What is the time limit applicable for entry into the national phase of a PCT application?
The time limit applicable for entry into the national phase under both PCT chapters I and II is 31 months from the priority date.
4. How is the priority date determined?
If the applicant claims priority under the Paris Convention, the time limit for filing an application in Vietnam will be 12 months counted from the first filing date of the first application or 6 months counted from the date on which the invention has been displayed at a recognized exhibition;
If the applicant claims priority under the PCT, the above-mentioned time limit will be 31 months from the priority date.
If priority claimed under a bilateral agreement or on the basis of reciprocity, the time limit for filing an application will be determined in accordance with such agreement or arrangement.
5. How is an application processed?
After filing, the process of examination of an application for patent takes about 16 months before a patent can be granted in a smooth case. In practice however, it usually takes longer. This process involves 2 main stages:
- Formality examination is completed within 1 month from date on which all required documents are filed. If all formal requirements are met, an official notification of acceptance of the application will be forwarded to the applicant and the application is published for opposition purpose.
- Substantive examination: Within 42 months from priority date of the invention application and 36 months from priority date of the utility solution, a request for substantive examination must be filed with the NOIP. Otherwise, the application is deemed to be abandoned. The time limit of this examination shall be 12 months counted from the date on which the request for substantive examination is filed or the date of publication of the application whichever come later. If all substantive requirements are met, a notification of intention to grant patent shall be forwarded to the applicant who will have one month to pay registration and publication fees. The patent shall be issued after full payment of fees.
6. What are the costs to obtain a patent?
The costs for filing an application in Vietnam are fairly inexpensive. These costs vary according to content of the application such as number of drawings, independent claims, pages of the specification, convention priority claimed, etc… To calculate the costs please contact us at firstname.lastname@example.org for our detailed advice.
7. What are the costs for patent maintenance?
According to Circular No 132/2004/TT-BTC, dated 30 December, 2004, the 1st annuity of a patent shall be counted from the date of the grant of the patent. Where the last valid year consists of less than 12 months, the renewal fee shall be calculated according to remaining months (= “annuity of the corresponding year” / 12 x the number of months of the last valid year).
The costs for patent maintenance in Vietnam increases over the years. To calculate the costs please contact us at email@example.com for detailed advice.
8. What are temporary rights?
From the date of publication of the application on the Industrial Property Official Gazette to the granted date, if a person commences to use an invention or utility solution which is identical with the invention or utility solution described in the application, the applicant shall entitled to notify such user of the filed application. If, in spite of the above notification, the user continues using the invention or utility solution, the owner of the title of protection, after being granted the title of protection, shall be entitled to request such user to pay a pecuniary compensation equivalent to the payment for the transfer of the right to use the industrial property object in question (licensing) to another person in corresponding period of time.
9. What are the rights of the owner of a patent?
Under the patent law, the owner of a patent has the following economic rights:
- The exclusive right to use and/or authorize a third party to use the patented invention or utility solution;
- The right to prohibit/prevent others from using the patented invention or utility solution and sue the infringers;
- The right to transfer or assign the patented invention or utility solution;
- The right to license all or parts of the patented invention or utility solution;
The “use” of the patented invention includes manufacturing, using, importing, advertising, and transporting goods manufactured according to the patented invention. Infringement means any act that violates the exclusive right to use, and the right to assign or license.
The patent law also excludes from infringement certain non-infringing uses. Such uses include:
- Non-economic and private use;
- Use and transportation of goods put on the market by the owner; and
- Use by third parties who have used the patented invention prior to the effective filing date of the patented invention (Prior uses). The prior users may continue to use, but cannot expand or transfer the current uses, unless the whole prior use right is transferred together with the business establishment where the prior use is undertaken.
10. What is the prior use right?
If before the date of filing of the application, the patented invention has been used by a third party independently of the owner of the patented invention. This party has “the prior use right”; so called the prior user. The prior user is entitled such use within the scope and volume already used before the filing date of the application.
The person with prior use right shall not allowed to transfer such right to another person, except for cases where he/she transfers the whole prior use right together with the business establishment where the prior use is undertaken.
11. What types of remedies may be available o¬n case of infringement?
Different remedies are available when a registered patent/utility solution is infringed including administrative, civil and criminal proceedings.( for details see Enforcement of Rights)
12. What are the filing requirements?
For entry into national phase of PCT applications
(i) A Power of Attorney which is simply signed by the Applicant (Required within 1 month from the national phase entry filing date; Neither notarization nor legalization is required);
(ii) One copy of the international application in English for translation into Vietnamese (as published or as originally filed if not yet published), which should contain the following contents: description, claims, abstracts and any text matters of drawings/tables as well as any statements under PCT Articles 19 and/or 34(2)(b);
(iii) A copy of an International Preliminary Examination Report (where available);
(iv) A Deed of Assignment of the Priority Rights, where the Applicant is different from the Applicant having filed the Priority Application (required within 3 months from the national phase entry filing date).
For Non PCT patent applications
(i) Full name, address and nationality of the Applicant(s) and Inventor(s);
(ii) Country, application No., filing date and Applicant(s) from the basic application(s);
(iii) A Power of Attorney which is simply signed by the Applicant (Required within 1 month from the filing date. Neither notarization nor legalization is required);
(iv) One copy of description, claims, abstract and any text matters of drawings/tables (if any) of the invention in English for translation into Vietnamese;
(v) A certified copy of the priority documents, if a Convention priority is claimed. (required within 3 months from the filing date);
(vi) A Deed of Assignment of the Priority Rights where the Applicant is different from the Applicant having filed the Priority Application (required within 3 months from the filing date).
13. What is the term of a patent and legal protection of the patent?
The term of a patent shall be 20 years for an invention and 10 years for an utility model as from the date of filing of the application. The legal protection of a patent shall begin from the date on that the patent was issued.