INTRODUCTION TO THE PATENT SYSTEM IN VIETNA

1.       GENERAL INTRODUCTION TO THE PATENT LAW

The Patent Law of Vietnam was passed by Legislature XII of the National Assembly of the Socialist Republic of Viet Nam on 19 June 2009, and was effective as from 1 January 2010.

Vietnam became a member of the Paris Convention for the Protection of Industrial Property on 8 March 1949.

Vietnam became a member of the Patent Cooperation Treaty on 10 March 1993.

Therefore, foreign enterprises and individuals can apply for a patent in Vietnam through the Paris Convention and the Patent Cooperation Treaty.

2.       TYPE OF PATENT AND APPLICATION PROCESS

Practically, there are three types of patent available under IP Law 50/2005, namely:

•   Patent for inventions;

• Patent for utility solutions (utility model); and

• Patent for industrial design.

Inventions are technical solutions relating to a product or process aiming to solve a specific problem by utilizing the laws of nature. To be protected in the form of a patent for invention, an invention must be new, involve an inventive step, and be industrial applicable. 

2.1.2 Application Process of an Invention Patent

Similar to most of the countries, Vietnam carries out substantive examination to the invention patent applications, namely, examining the novelty, creativity of the invention patent applications.

Vietnamese patents become effective on the date of issuance and end 20 years computed from the filing date for inventions (subject to annuity payment), without any renewal term.

2.1.3 Required Documents for Application

• Specification consisting of the title, description,      drawings, claims and abstract. The Vietnamese version of the specification      is required right at the filing time.

• Power of Attorney (notarization is not required).

• Certified copy of priority documents (only for      applications claiming priority under the Paris Convention), which can be      submitted later within 01 month from the Vietnamese filing date;

• As to PCT applications entering the Vietnam National Phase,      apart from the above documents, the following PCT documents are required:      PCT publication, International Preliminary Examination Report      (PCT/IPER/409) (if any), Notification of the Recording of a Change      (PCT/IB/306) (if any), International Search Report (PCT/ISA/210)...

2.2 Utility Model

2.2.1 Concept and Description of the Utility Model Patent

According to the Patent Law of Vietnam, the term “utility solutions” refers to both product and process. To be protected in the form of a patent for utility solution, an invention must be new, must not be common knowledge, and must be industrial applicable.

2.2.2 Application Process of a Utility Model Patent

Vietnam carries out both preliminary examination and substantive examination. The patent for utility solution enjoys the term of ten years from the filing date.

2.2.3 Required Documents for Application

• Specification consisting of the title, description,      drawings, claims and abstract. The Vietnamese version of the specification      is required right at the filing time;

• Power of Attorney (notarization is not required);

• Certified copy of priority documents (only for      applications claiming priority under the Paris Convention), which can be      submitted later within 01 month from the Vietnamese filing date;

• As to PCT applications entering the Vietnam National      Phase, apart from the above documents, the following PCT documents are      required: PCT publication, International Preliminary Examination Report      (PCT/IPER/409) (if any), Notification of the Recording of a Change      (PCT/IB/306) (if any), International Search Report (PCT/ISA/210)...

2.3 Design Patent

2.3.1 Concept and Description of the Design Patent

An industrial design covers the exterior shape of a product, represented in three dimensional forms, lines, colors or any combination thereof. Industrial design shall be protectable if it is new, creative, and industrial applicable. 

External appearance of an article that is an embodiment of ornamental or other non-functional features is patentable under Vietnam IP law. External appearance of an article that is determined merely by its technical function is excluded from protection as an industrial design. The design incorporating both functional and non-functional features may be protected as whole or only non-functional features.

2.3.2   Application Process of a Design Patent

Applications for industrial design registration will be examined by NOIP as to its formality and substance in the following stages:

The patent for industrial design is effective from the granting date, lasts for five years from the filing date, and can be renewed for two further five year terms (subject to payment of renewal fee).

2.3.3 Required Documents for Application

•  Drawings of the design.

•  Description of the design.

• Power of Attorney (notarization is not required).

• Certified copy of the priority document (in case of applications claiming priority under Paris Convention), which can be submitted within 01 month from the filing date.

  
  

  
  

3.    WHAT SHALL NOT BE GRANTED

Under Vietnamese Intellectual Property Law, the following subject matter shall not be protected as inventions:

•  discoveries, scientific theories; mathematical methods;

•  schemes, plans, rules or methods for performing mental acts, training domestic animals, playing games, doing business;

• computer programs;

•  presentations of information;

• solutions of aesthetic characteristics only;

• plant varieties, animal varieties

•  processes of essentially biological nature for the production of plants and animals other than microbiological processes; and

• disease prevention, diagnostic and treatment methods for human or animals.

It is clear that the law explicitly excludes, inter alia, software, business methods and medical methods from protection. In practice, in order to determine whether a software-related or business method-related invention is patent-eligible, the NOIP applies a two-prong machine-or-transformation test. Normally, a computer program claim is acceptable if it is drafted in the form of ‘a computer-readable medium having a computer program embodied therein’. In respect of method-of-treatment claims, under the old patent law, in certain cases, such claims may survive if converted into the Swiss-type for- mat.However, recently the Office has raised objections to ‘use-type’ claims on the grounds that they relate neither to a process nor a product, and therefore, cannot be regarded as a statutory subject matter. This point of view of the Office has caused a fierce debate among Vietnamese intellectual property professionals, which has not yet come to an end.

The following subjects that shall not be protected as an industrial design:

•  External appearance of an article that can be easily made by a person of intermediate skills in a corresponding field;

•  External appearance of an article that is determined merely by its technical function;

• External appearance of civil or industrial construction facilities;

• External appearance of an article that is not visible in the course of usage;

•  Design of an article having only artistic value.