Along with the remarkable innovation of technology as well as the constant creativity of human. There are more and more the inventions were born in order to serve our life and production. However, the more a patent application which shows progress and its effectiveness, the more that invention is used illegally. Comprehending this matter, Law Plus respectfully sends the legal provisions on patent protection registration procedures. And we hope the customers will have the most comprehensive and accurate view of one of industrial property rights.
Table of Contents/Mục lục
1. What is a patent?
Per the Vietnam Intellectual Property Law (shortly named “IP Law”), invention means a technical solution in a form of a product or a process which is intended to solve a problem by application of laws of nature.
An invention shall be protected by mode of grant of invention patent when it satisfies the following conditions:
- Novelty of inventions
- Involving an inventive step;
- Being susceptible of industrial application.
An invention shall be protected by mode of grant of utility solution patent when it satisfies the following conditions:
- Being novel;
- Being susceptible of industrial application.
Accordingly, the novelty, inventive nature and industrial applicability of the invention are construed as follows:
i. Novelty of inventions
An invention is met the standard of novelty when must not have been disclosed publicly in the form of use, description by documents or in any other form either inside Vietnam or elsewhere prior to the filing date that the application for registration of the invention or before the priority date, in case where an invention registration application is entitled to priority.
An invention is considered not to be disclosed publicly when some people are known and they be obligated to keep it confidential.
An invention is not considered losing its novelty if it is publicly disclosed by the person having the right to register under the provisions of the IP Law, or the person who obtained the invention information directly or indirectly from that person on the condition that the application have already been made in Vietnam within 12 months from the date of disclosure. Or an invention that is disclosed in an industrial property registration application or an industrial property protection diploma published by the state management agency in charge of industrial property in case the publication does not comply with the provisions of law, or application filed by the person who has no right to register. However, the invention is disclosed in these cases should not be used as a basis for assessing the inventive level of such invention.
ii. Inventive nature of inventions
An invention is considered as having a creative level if based on technical solutions that have been publicly disclosed in the form of use, description in writing or in any other form in the country or in the country. in addition to before the filing date or before the priority date of an invention registration application in the event that an invention registration application enjoys priority, the invention is a creative step, cannot be created easily. to someone with average knowledge in the respective technical field.
iii. Being susceptible of industrial application.
An invention is considered to have industrial applicability if it is possible to manufacture, mass-produce products, or apply the process repeatedly, are the contents of an invention and stable results are obtained.
2. The beneficiary are protected for the inventions
It is very necessary to know which the beneficiary can be protected for invention so that customers can register for protection of their invention. And here are some the beneficiaries as prescribed by law:
- Scientific inventions;
- Equipment and products;
- Production process/ method of use;
- Chemical ingredients and preparations;
- Molecular isolation and coding;
- Genetic organism/ gene sequence;
- Computer programs;
3. The beneficiaries are not to protect for inventions
Under the patent laws of most countries, a protected invention is determined by the method of exclusion, means the regulations on a list of those beneficiaries to invention protection. Under the Vietnamese regulations, the beneficiaries that are not protected as the inventions are specified in Article 59 of the IP Law, specially:
- Scientific discoveries or theories, mathematical methods;
- Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business; computer programs;
- Presentations of information;
- Solutions of aesthetical characteristics only;
- Plant varieties, animal breeds;
- Processes of plant or animal production which are principally of biological nature other than microbiological ones;
- Human and animal disease prevention, diagnostic and treatment methods.
4. Registration procedure for patents
a. The following ganizations and individuals shall have the right to register inventions
Authors who have created inventions, industrial designs or layout designs by their own labour and at their own expense;
Organizations or individuals who have supplied funds and marterial facilities to authors in the form of job assignment or hiring, unless otherwise agreed by the parties invoved and provided that such agreements are not contraty to regulations of IP Law.
In case many organizations and individuals create or invest together to create an invention, such organizations and individuals have the right to carry out invention registration procedures and that right of registration can only be exercised if possible. All such organizations and individuals agree.
The person with the right to registration also has the right to transfer the right of registration to another organization or individual in the form of a written contract, to inherit or be inherited according to the provisions of law, even in the case already submit an application.
b. Looking up the patent protection information in Vietnam
Mode of grant of invention patent and the applications published by the National Intellectual Property Offices can be accessed via: digipat.noip.gov.vn or wipopublish.noip.gov.vn or iplib.noip.gov.vn.
Looking up the patent relate information will help the applicants knowing the available solutions to technical problems, finding business partners, following competitors’ activities and future potential, finding suitable market as well as avoiding unnecessary costs in researching known technical solutions, …
c. Minimum documents
Registration form for invention / utility solution patent (based on the form stipulates in Circular No. 16/2016/TT-BKHCN date 30/06/2016);
Patent description / utility solution patent; The description of the invention / utility solution must satisfy the provisions at Point 23.6 of Circular No. 01/2007 / TT-BKHCN. Description of invention / utility solution includes Description, Claim and Drawing (if any).
-vention summary, utility solution patent; Patent summary / utility solution should not exceed 150 words and must be separated into separate page. The invention / utility solution summary is not required at the time of filing and may be added by the applicant later;
Receipt of payment of application fees and publication fees;
Other documents (if any), including: Documents certifying the lawful right to file if the applicant enjoys the right of another person to file; Authorization seconds; Documentation of the right of priority …
d. Application form and application principle
The applicant may choose paper filing or online filing through the IPVN’s online public service portal.
Conditions for online application: Applicants need to have digital certificates and digital signatures, register an account on the Online Application Processing System and have an account approved by NOIP to perform transactions registration of IP rights.
“First to file” principle
- In case there are two or more patent applications filed for the identical or equivalent inventions, a patent will only be granted to a patent or the industrial design application having the earliest prority date or filing date among the applications that satisfy all protection criteria.
- In case there are two or more applications satisfying all protection criteria and having the same earliest priority orfiling date, all of the applicants are now required to reach an agreement to proceed with one application only. Without such an agreement, all those applications shall be refused.
Priority priciple: An applicant may claim a priority right on the basis of the first application for registration of protection of the same beneficiary if it satisfies the conditions prescribed by the IP Law.
Time limit for processing invention or utility solution registration applications
From the date on which the registration application is received by the IP Vietnam, the registration application of an invention or utility solution shall be examined in the following order:
– An invention or utility solution registration application shall have its formality examination: 01 month.
– Publication of invention registration applications:
(i) An invention or utility solution registration application shall be published in the nineteenth month from the date of priority or the filing date in case the application has no date of priority or within 02 months after it is accepted as a valid application, whichever is later;
(ii) An invention or utility solution registration application under the Patent Cooperation Treaty (hereinafter abbreviated to PCT) shall be published within 02 months from the date it is accepted as a valid application and enters the national phase;
(iii) An invention or utility solution registration application containing a request for earlier publication shall be published within 02 months from the date the IPVN receives that request or the date it is accepted as a valid application, whichever is later.
– An patent registration application shall be substantively examined within the following time limits:18 months from the date of its publication if a request for substantive examination is filed before the date of application publication, or from the date of receipt of a request for substantive examination if such request is filed after the date of application publication;
5. The invention patent – The unility solution patent
a. The value of patent
Exclusive ownership of an invention is established according to the registration procedures, and the scope of protection is determined in the diploma. These rights allow the business have the ownership over the registered property and maximum allowable of these assets. In addition, but also avoid being used freely and widely by other businesses without any restrictions. Especially when a dispute occurs, a patent/industrial design diploma is the only evidence proving the owner’s exclusive ownership without other evidences.
In addition, the combined use of a proprietary patent with other marketing tools (example, advertising and other promotional activities) will have the following specific advantages:
- Making a difference to the products and services of the business that makes them easily identify in the market;
- Diversify the business’s market strategy for different groups of beneficiary;
- Expand the business environment overseas and profit from it.
After the patent / utility solution is granted, the owner has the right to:
- Using, allowing others to use the invention, such as: Manufacture of protected products; Apply a protected process; Exploiting uses of the protected product or the product produced by the protected process; Circulating, advertising, offering, stocking for circulation the protected product or the product manufactured in accordance with the protected process; Import of the protected product or product manufactured by the protected process.
- Prohibit others from using the invention, unless: Using the invention for personal needs or non-commercial purposes or for the purposes of evaluation, analysis, research, teaching, testing, trial production or collecting information to carry out the procedures for applying for a product production, import or put the product into circulation; Using the invention only for the purpose of maintaining the operation of foreign means of transport in transit or temporarily located in the territory of Vietnam; Using an invention or industrial design by the person having the right to use first in accordance with the IP law; Use of inventions by a person authorized by a competent state agency.
- Dispose of industrial property beneficiary.
b. Validity of inventions
An invention patent shall be valid from the grant date until the end of 20 years after the filling date.
A utility solution patent shall be valid from the grant date until the end of 10 years after the filling date.
c. Maintenance of invention patents
Per the IP law, invention is not extended the protection diploma valid but an invention shall be maintained the validity of an invention patent or a utility, the owner must pay a validity maintaince fee.The fee for maintaining and extending the validity of protection diplomas shall be specified by the regulations of the Government.
In cases, the owner do not pay the validity maintenance fee within the prescribed time limit, upon expiration of that period, the validity of the diploma shall automatically terminate from the commencement date of the first effective year when the validity maintenance fee is not paid.
Through the above analysis, we can see that patent protection registration is one of the basic and important steps in protecting patent ownership of individuals and organizations for inventions. In addition, the first file principle, the priority principle should also be noted for the invention in order to register effectively and quickly. It helps to avoid the disputes and shortcomings that may occur during the patent registration process.
LawPlus provides for looking up and registering patent inventions and utility solution patent services. We also provide services related to protection of intellectual property for individuals and organizations:
- Look up/cross-check information of trademarks, industrial designs;
- Consultancy amd registration of protection of trade name;
- Consultancy amd registration of protection of logo;
- Consultancy amd registration of protection of trademarks;
- Consultancy amd registration of protection of industrial déigns;
- Consultancy amd registration of protection of inventions;
- Consultancy amd registration of protection of related rights.
For detailed advice and information, please contact us via phone: +84 2862 779 399 hoặc email: email@example.com.