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    A patent is a document identifying exclusive right granted by the state to the inventor or person having the right to an invention which is new, not obvious, and industrially applicable. In Vietnam, an invention may be protected under two types of patents.

    A patent for invention having long-term protection of up to 20 years is granted to an invention,   which meets the requirements of novelty, inventive step, and industrial application.

    A patent for utility solution with the protection of up to 10 years is granted for an invention which is not of common knowledge and has novelty and industrial application. This kind of patent is known as patent for utility model or petty patent.

    To obtain a patent, an application must be filed at the National Office of Intellectual Property of Vietnam (NOIP). The application must relate to only one invention or to a group of inventions linked to form a single general inventive concept. Patent protection in Vietnam is based on the “first to file” principle. This means a patent will be granted to the first person to file the patent application.

    Patent protection in Vietnam is currently governed by the Intellectual Property Law enacted in 2005 and Decrees Nos. 103/2006/CP, 105/2006/CP, 106/2006/CP dated September 22, 2006, promulgated by Vietnamese government, Circular No. 01/2007/TT-BKHCN dated February 14, 2007 of Ministry of Science and Technology, and the NOIP’s Decisions. In addition, the Vietnamese patent system is bound by WIPO treaties comprising WIPO convention, Paris convention, Patent Cooperation Treaty, and bi- or multilateral treaties.

    According to Articles 59, 60, and 61 of the Intellectual Property Law, patentability conditions are provided as follows:

    Novelty of invention

    In Vietnam, novelty requirement is universal. To be considered as new, an invention must not be disclosed to the public, anywhere in the world, by publication in tangible form, by oral disclosure, by use or in any other ways, prior to the filing date or, where appropriate, the priority date of the relevant patent application.

    The novelty is not destroyed in the following disclosure circumstances provided that an application for the invention is filed to the NOIP within 06 months counted from said disclosure.

    • The invention is disclosed by a person without the consent of the person having the right to patent the invention;
    • The invention is disclosed in the form of a scientific presentation of the person having the right to patent the invention; or
    • The invention is disclosed as an exhibited object by the person having the right to patent the invention at a national exhibition of Vietnam or an international exhibition.

    Inventive Step

    An invention is considered to involve an inventive step when, given the published technical solutions known as the prior art relevant to the patent application claiming the invention, the invention would not have been obvious to a person skilled in the art.

    Industrial application

    An invention is considered industrially applicable if, it is consistently implementable in any industries. The product invention can be made or manufactured in large scale or the process invention can be repeatedly used to achieve stable results.

    Unpatented subject matters

    In addition to inventions relating to objects contrary to public interest, humanitarian principles or morality, the following objects are also not protected as patent under Vietnamese patent law:

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

    The specification of an invention is the most important part of a patent application. This part consists of a description, drawings (if any) and one or more claims. The format requirements for a patent specification are A4 paper printed in portrait orientation, one-and-a-half spaced type, page number in Arabic numeral, minimum margins of 2cm. Units of measurements should be metric system (SI units) or be converted into metric system (SI units).

    Description

    The description must disclose the nature of the invention comprehensively and clearly, so that the invention can be implemented by a person having ordinary skill in the art. The description should also indicate the best embodiments known by the applicant to enable for carrying out the invention.The description often comprises the following elements:

    • Title of the invention: pointing out the subject matter(s) of the invention;
    • Technical field: indicating the technical field to which the invention relates;
    • Background art: specifying the background art known to the applicant, useful for understanding, conducting patentability search and substantive examination of the invention. Documents reflecting the closest prior art should be preferably cited therein;
    • Summary of the invention: disclosing the invention in the way that it can be understood, and stating its improvements over the prior art, if any, with reference to the background art;
    • Brief description of the drawings (if any): briefly describing the figures in the drawings;
    • Detail description of the invention: providing at least the best mode contemplated by the inventor for implementing the invention; this part should be written in terms of examples.

    Claims

    The claims establish of protection scope of the invention. The claims must define the objects of the invention to be patented. The claims should be clear and concise and fully supported by the description. The description and the drawings may be used to interpret the claims.The claims may include independent claims and dependent claims and must be numbered consecutively in Arabic numerals. The claims should preferably be arranged in order of protection scope so that the first claim is the broadest. All dependent claims should be grouped together with the claim or claims to which they refer to the extent practicable. A dependent form must be construed to include all the limitations of the claims incorporated by reference into the dependent claim.Each claim must be written in a single sentence and must not rely on references to the description or drawings such as “as described in part…of description” or “as illustrated in figure…of the drawings“.DrawingThe drawings are required when they are necessary for understanding the invention. The drawings must be in black and white, represented in lineless paper. Numbers, letters, and reference characters can be used in the drawings only when they are really necessary for the examiners to understand the invention. The sheets of drawings should be numbered in consecutive Arabic numerals, starting with 1. The number of each sheet should be shown by two Arabic numerals placed on either side of an oblique line, with the first being the sheet number and the second being the total number of sheets of drawings.AbstractThe abstract is not used to interpret the protection scope, only serves the purpose of technical information. It presents a short summary of the description and the claims, and should contain maximum 150 words.

    Patent applications may be filed at the National Office of Intellectual Property of Vietnam (the NOIP) directly or by mail. The filed applications will be subjected to the examination process as the following chart shows.

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    Examination on filing

    The Receiving Division will examine whether the patent application satisfies the requirements on the documentation and the application fees have been paid.

    If the application meets all the requirements on filing, a date of filing and an application number will be assigned.

    Examination as to form

    The filed application will be then examined as to form within one month. The NOIP examines the application whether it complies with the administrative requirements or formalities.

    If all the relevant documents and information are included and the application fees (often including filing fee, fee for claiming priority right and publication fee) have been paid, the application will be accepted as complete and the application number, and the filing date will be officially recorded. The NOIP will issue a notification of acceptance and send it to the applicant or his patent agent.

    Publication

    The patent application will be published in the Industrial Property Gazette, Volume A of the NOIP after a period of eighteen months from the filing date or, if priority right has been claimed, as from the priority date. Nevertheless, at the request of the applicant, the application may be published before the period referred to above. For the international applications (under the PCT), the publication will be made in 2nd month from the date on which the applications are accepted as complete and regular.

    The publication information contains the publication number and the publication date, the application number and the filing date, the international classification indexes, the information on the applicants, the inventors, the patent agent, the priority data, the title and the abstract of the invention.

    Examination as to substance

    In order for the patent application to be carried out examination as to substance, a written request for substantive examination must be filed to the NOIP within 42 months for patent application for inventions, or 36 months for patent application for utility solutions, from the date of filing or, if priority right has been claimed, as of the date of priority.

    The applicant can also make request for substantive examination by stating that at the request for grating patent, which is filed on the filing date. The person making the request must pay the prescribed fee for patentability search and substantive examination.

    The substantive examination period lasts 18 months from the publication date (if the request for examination is filed before that date) or from the date on which the NOIP receives the examination request (if the request for examination is filed after the publication date).

    The substantive examination verifies whether there exist any grounds for refusal connected with unity and patentability.

    Grant, recordal and publication of a patent

    When the NOIP finds that all formality and substantive requirements for the grant of a patent are fulfilled, it will issue a notification of result of substantive examination in which the applicant will be invited to pay fees for the grant, registration, publication of the patent and the first annuity.

    After the prescribed fees are paid, the NOIP will issue to the applicant a patent, record the information of the patent in the National Register and publish it in the Industrial Property Gazette, Volume B of the NOIP within 2 months from the date of grant.

    Duration of patent and annual fees

    The term of patent is 20 years for inventions and 10 years for utility solutions as of the filing date of the application.

    In order to maintain the patent, an annual fee must be paid to the NOIP with every year after the date of grant. The first annual fee is paid upon the NOIP’s request in the notification of result of substantive examination. The next annuities should be paid within six months before the anniversary of date of grant. A grace period of six months is granted for the payment of annuity upon payment of the prescribed surcharge.

    The costs of obtaining and maintaining a patent depend on factors such as the number of independent claims, the length of specification, the convention priority rights claimed and objections raised during the examination by the NOIP.

    Payment for the costs can be made in one or several times. For example, application fees including fees for filing, claiming priority right (if any), and publication can be paid on the filing date. Examination fees including fees for conducting patentability search and substantive examination can be paid when a request for substantive examination is filed. Granting fees including fees for grant, registration and publication of patent, and the first annuity are paid upon being invited by the NOIP in a notification of result of substantive examination.

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    OPPOSITION

    After the publication date of the patent application and before the date of grant, any third person may give a notice of opposition to the NOIP concerning the grant or the refusal of grant of patent.

    The notice of opposition must be submitted to the NOIP in a written reasoned statement accompanied by adequate evidence for the opposition. The person giving the notice must pay the opposition fees.

    APPEAL

    The applicant may appeal against any decision by which the NOIP accords a filing date, treats the application as if it had not been filed, considers a declaration claiming priority right not to have been made, rejects the application or refuses to grant a patent.

    The first appeal should be submitted to the Director General of the NOIP within ninety days from the date of the NOIP’s decision.

    If the appeal is refused by the NOIP, the appellant can lodge the second appeal to the Minister of Science and Technology or a competent court within thirty days of notice of the decision of the NOIP.

    The intellectual property law gives the applicant one more opportunity for further appeal to a competent court if he does not accept the result of the second appeal from the Minister of Science and Technology.

    SURRENDER OF PATENTS

    A patent may be surrendered according to the Vietnamese patent law under the following circumstances:

    • The patent owner stops paying annual fees;
    • The patent owner submits a written declaration of abandonment to the NOIP; and
    • The owner of patent no longer exists and no lawful successor is found.

    Surrender of patents will be recorded and published in the Industrial Property Gazette, Volume B of the NOIP.

    CANCELLATION OF PATENTS

    During the term of a patent, the patent, or claim or part of a claim may be canceled upon request by any interested person. The person requesting the cancellation have to prove that:

    • The right to the patent does not belong to the person to whom the patent was granted; or
    • Any of patentability requirements were not fulfilled at the time when the patent was granted.

    Any canceled patent, or claim or part of a claim is considered as null and void from the granting date. The information on cancellation will be published in the Industrial Property Gazette, Volume B of the NOIP.

    Assignment and license contracts must be in writing and must be signed by the parties to the contract.

    An assignment contract includes at least the following contents:

    • The full names and addresses of the contracting parties;
    • Identification of all patents as well as related patents specifically excluded;
    • Term of payment including price;
    • Obligations and rights of the contracting parties.

    There are three types of licenses, namely exclusive, non-exclusive and sub-license. The content of license contract at least includes:

    • The full names and addresses of the contracting parties;
    • Identification of all patents as well as related patents specifically excluded;
    • Type of license;
    • Scope of license, in particular, the territorial limits and the rights are being licensed;
    • Termination of the contract;
    • Term of payment including price;
    • Obligations and rights of the contracting parties.

    The assignment/license contracts is only effective to a third party upon recordal of these contracts with the NOIP.

    The exclusive right of a patent owner is essentially the right to prevent or stop other persons exploiting his own patent for commercial purposes such as making, using, offering for sale, selling or importing a product or a process, based on the patented invention, without prior permission of the patent owner.

    However, the patent owner is responsible for use or monitoring the use of his invention (via license) in the marketplace in order to avoid the invention being subject to compulsory license.

    To protect his patent rights, the patent owner should himself or via patent agent perform patent watch, identify any infringers and decide whether, how and when to take action against them.

    When the patent owner finds that his patent has been infringed or is being infringed, he can do the following steps:

    • Sending a polite warning letter requesting the alleged infringer to stop infringement acts;
    • Negotiating a license agreement; or
    • Performing enforcement measures of the patent rights.

    The following measures are provided to ensure the respect and defense of the exclusive rights of the patent owner.

    Administrative measure

    In order for the administrative measure to be taken, the owner of the patent should file a request for handling of the infringement to the following administrative competent authorities:

    • The Science and Technology Inspectors;
    • The Market Management Bureaus;
    • The Customs;
    • The Police; and
    • The People’s Committees at district and provincial level.

    Upon examining the legal evidences provided by the patent owner, the authorities might force infringers to stop their acts of infringement. Depending on the nature and gravity of the infringement, the above authorities will impose administrative remedies and penalties including:

    • Warning;
    • Monetary fine;
    • Complementary remedies such as seizure of infringing goods and any material, suspension of business activities; and
    • Restoration remedies such as destruction or disposal outside the channels of commerce of infringing goods in such a manner as to avoid any harm to the right holder, delivery out of Vietnam or re-export of infringing goods after having removed infringing elements.

    In addition, the owner of the patent can require the administrative authorities to apply preventive measures as:

    • Temporary hold of related individuals or the goods, means and implements used for such infringement; and
    • Search of related individuals, the place where infringing goods, means and implements are stored.

    Civil measure

    Competent Courts for civil proceedings are:

    • The People’s Courts at district level (including the Civil Courts);
    • The People’s Courts at provincial level (including the Civil Courts and the Economic Courts); and
    • The Supreme People’s Court (including the Civil Court and the Economic Court).

    The civil remedies may be obtained through a suit including:

    • Forced to desist from an act of infringement;
    • Forced to make a public rectification or apology;
    • Forced to perform a prescribed civil obligation;
    • Forced to remove the signs of infringement from infringing goods to be circulated for non-commercial purposes;
    • Forced to destroy or dispose outside the channels of commerce of infringing goods in such a manner as to avoid any harm to the right holder; and
    • Forced to compensate for infringement damages.

    Where appropriate, in particular where infringement is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed, the following provisional judicial measures can be applied.

    • Seizure;
    • Attachment;
    • Sealing, prohibition of changing status or displacing; and
    • Prohibition of transferring ownership.

    The damages can be calculated on spiritual and physical damages of plaintiff for example the lost sales or profits and reasonable expenses for prevention and restoration from such damages etc. as a result of the defendant’s infringement.

    Criminal measure

    Criminal remedies in accordance with the criminal laws and regulations are applied for any person who infringes intellectual property rights having factors that constitute a crime or commits a repeat offense after being subject to administrative remedies for IPR.

    Competent criminal courts are:

    • The People’s Courts at the district level;
    • The People’s Courts at the provincial level; and
    • The Supreme People’s Court.

    The remedies available include:

    • Warning;
    • Monetary fine;
    • Non-detained re-education;
    • Imprisonment; and
    • Prohibition from holding an official position or conducting a business within a certain period.

    Border measures

    Right holder has the right to request the Customs Office to take the following border control measures to prevent IP-related imports and exports of infringing goods.

    • Suspension of customs procedures for suspected infringing goods; or
    • Supervision to detect infringing goods.

    The right holder should, himself or via his IP representative, lodge an application to the General Department of Vietnam Customs, local Customs Departments, or Customs Sub-departments. In the application, the right holder have to provide adequate evidence of a prima facie infringement of his IPR and supply a sufficiently detailed description of the goods to make them readily recognizable by the Customs Office. The right holder should also provide with documents proving his IP rights (i.e. certified copies of the patents) and deposit a sum of money in cash or in the form of bank guarantees.

    The term of suspension of customs procedures is 10 working days. This term may be prolonged up to 20 working days provided that an additional equal amount of money is deposited.