1. Summary about Vietnam
According to data published by the Ministry of Internal Affairs and Communications in 2010, Vietnam covers a land area 85% that of Japan, held 88 million people (ranked 13th-largest in the world) in 2009 and is expected to reach 100 million in 2025. Because of its wealth of labor (44% of the population is under age 20) and its friendliness toward Japan, Japanese corporations are able to enter the market there easily, and already many of Japan’s large corporations have done so.
From 1999 to 2008 the real increase of GDP in Vietnam has averaged at least 7%, and growth is expected hereafter, as well.
(2) The Present Vietnam Intellectual Property Law
Provisions regarding industrial property rights were included in the civil code that went into effect on July 1, 1996. The existing intellectual property laws and rules were updated in the Vietnam Intellectual Property Law.
Afterwards, the rules concerning intellectual property rights became independent of the civil code and went into effect on July 1, 2006 as the Law on Intellectual Property. The present law, revised on June 19, 2009, has been in effect since January 1, 2010.
Vietnam’s primary treaty memberships include the Paris Convention (member since March 8, 1949), Convention Establishing the World Intellectual Patent Organization Treaty (member since July 2, 1976), Patent Cooperation Treaty (member since March 10, 1993), Agreement on Trade-Related Aspects of Intellectual Property Rights (member since January 11, 2007), and the Madrid Protocol (member since July 11, 2006). )
(3) Objects of Protection in Vietnam
Copyright, rights neighboring on copyright, inventions, industrial designs, layout deigns of integrated circuits, trade secrets, trademarks, trade names, geographical indications, and plant varieties can be protected (Articles 3, 4).
2. Summary of Vietnam’s Patent Policies
Language of Procedures
The language of procedures is Vietnamese [Vietnam Industrial Property Decree 7.2b (ii)].
From Application to Grant of Patent
In order to acquire a patent, an invention must not have any reason for non-patentability, be “New,” and show “Inventive Progress,” and “Industrial Applicability.”
- (1) Reasons for Non-Patentability (Vietnam Intellectual Property Law Article 59)
The following cannot acquire patents as inventions.
1. Discoveries, scientific theories, or mathematical methods
2. Enactments of mental activities; training of animals in captivity, games; plans, projects, rules, or methods for carrying out an activity; and computer programs
3. Presentation of information
4. Solutions that are only aesthetic in nature
5. Plant and animal varieties
6. Methods of essentially biological nature for producing plants and/or animals outside of microbiological methods
7. Prevention, diagnosis, or cure of disease in humans or animals
An invention is considered to be novel if it has not been publicly disclosed by use, written or oral explanation, or any other form, in Vietnam or elsewhere, before the date of application for a patent, or (in applicable cases) before its priority date (Article 60 ).
Furthermore, if only persons with obligations to protect the secret of the invention know of the invention, the invention does not lose its novelty (Article 60 ).
(Exceptions to the forfeiture of novelty)
Even when an invention loses its novelty, if its application is filed within 6 months of the day the invention became public knowledge in one of the following cases, it is not treated as having lost its novelty.
1. The invention became public knowledge against the wishes of the holder of the right to the patent.
2. The invention became public knowledge through a presentation in a research meeting attended by the holder of the right to the patent.
3. The invention was displayed in a Vietnamese domestic exhibition or publicly recognized international exhibition by the holder of the right to the patent.
- (3) Inventive Step (Article 61)
If people skilled in the field of a particular invention could not have easily made the same invention based on domestic or foreign inventions already published as of the application date (or priority date), that particular invention has inventive step.
- (4) Possibility of Industrial Application (Article 62)
If an invention can be mass-produced or replicated on a continuing basis and achieve consistent results, that invention is industrially applicable.
- (5) The Examination Procedure
1. The application is given a procedural inspection, and if it does not meet requirements for grant of patent, the applicant is notified of the planned rejection of the application (one month is given for the applicant to respond) (Vietnam Intellectual Property Decree 13.6a).
2. The application is, in principle, published 19 months after the application date (or priority date). (In the case of a national phase application from the PCT, the application is published within 2 months of the date that it is accepted as legal.) (Decree 14.2 [I],[ii])
3. Because Vietnam uses a request for examination system, the applicant must make a request for examination within 42 months of the application date or priority date of the invention (Decree 25.1 [ii]).
4. If the examiner determines that an application does not fulfill the requirements for patentability, he or she sets a deadline for the response and notifies the applicant of the reason(s) for rejection. The applicant may submit written opinions, amendments to the specification, et cetera in response to this notification of reasons for refusal up to 2 months from the notification (Decree 15.7 [I]).
The applicant may request an extension of the period for response above, based on Decree 9.2. The applicant may also appeal the decision.
5. If an application is judged to fulfill the requirements for patentability as a result of the examination, the National Office of Intellectual Property (NOIP) decides that it should receive a patent. If the required fees are paid in response to this decision, the patent is entered in a register. Following the registration, a certificate of the patent is issued to the patent holder. The protection period is 20 years from the application date.
6. The applicant may not expand the scope of protection (numerically) or essentially change the subject of the application by going beyond the contents written in amendments or the application form’s specifications (Decree 17.1 [c]).
7. NOIP recognizes changes of patent applications into industrial design applications (Decree 17.3a).
8. Regarding submission of information on corresponding foreign applications:
The applicant may submit information on corresponding foreign applications to NOIP. By submitting search results of corresponding foreign applications, the applicant can help the Vietnamese examination process to progress more quickly. Documents that the applicant may submit are the following:
a) Copies of search and/or examination results issued for corresponding foreign applications;
b) Permitted specifications for corresponding foreign applications (copies from publications of applications or of granted patents);
c) Copies of documents issued by the corresponding foreign patent office(s) about the technical content of the applicable invention.
- (6) National Stage Application Procedures for PCT Applications
The applicant must submit a translation of the specifications, et cetera used at the time of the international application, within 31 months of the priority date (Decree 27.4a).
- (7) Duration of Patent Rights
(i) The patent protection lasts 20 years from the application date (in the case of applications in the national phase of a PCT application, the international application date).
(ii) The patent holder must pay annuities for the patent from the first year of its registration.
3. The Utility Solution System
The utility solution system is not covered by an independent law but is governed by Vietnam’s Intellectual Property Law along with patents, et cetera. Because subjects of protection are the same as those for patents (unlike in Japan’s Utility Model Law, they are not limited to goods but include methods), the applicant may seek protection for an invention with a patent or with an utility solution. Regulations for patent applications also apply to industrial design applications.
(Differences between patents and industrial designs in Vietnam)
- (1) Requirements for Registration
While patents must fulfill requirements of novelty, inventive step, and industrial application, industrial designs only need to fulfill requirements of novelty and industrial application and do not need to pass an inventive step test.
- (2) Deadline for Request for Examination
In the case of industrial designs, the deadline for request for examination is 36 months from the application date (or priority date). (In the case of a patent application, the deadline is 42 months from the application date [or priority date]).
In the case of an industrial design, the protection lasts 10 years from the application date. (A patent’s protection lasts 20 years from the application date.)
4. Resources Regarding Vietnam
National Office of Intellectual Property of Vietnam
English information on the Intellectual Property Law, Decree of Industrial Property, Decree of IPR Protection and Management, Decree of Providing for Sanctioning of Administrative Violations, Circular of Industrial Property, and WIPO Collection of Laws for Electronic Access (CLEA) of Vietnam is available for downloading at the following page of the Japan Patent Office.
The following site gives a downloadable brief summary guide to Vietnam's industrial property rights system and handling infringement in Vietnam.