Frequent Asked Questions related to Patent
The applicant must decide between the two types of protection available for utility invention: an invention and a utility solution. For an invention/utility solution to be patented, it must satisfy standard requirements as to unity, newness, and industrial application of invention. An invention also must involve an inventive step.
The following objects shall not be protected by the State as inventions or utility solutions:
- Ideas, scientific principles and discoveries;
- Methods and systems for economic organization and management;
- Methods and systems for education, teaching and training;
- Methods for the training animals;
- Systems in regard of linguistics, information classifications and compiling of documentations;
- Designs and planning schemes for construction works, projects for regional development and planning;
- Solutions concerning the shape of articles of an aesthetic nature;
- Conventional signs, timetables, rules and regulations and symbols;
- Computer software, topographic designs of integrated circuits, mathematical models graphs and the like;
- Plant or animal varieties;
- Methods for the prevention, diagnosis or treatment of human and/or animal diseases;
- Processes of biological nature (except micro-organic process) for production of plants and animals.
A application for an invention/utility solution must comprise the following documents:
- The request for granting of invention/utility solution patent, made under the form issued by the IP Vietnam.
- The request must clearly state the name, address of the applicant(s) and inventor(s), and nationality of the inventor(s).
- The invention/utility solution description.
- The request for protection (claims)
- Drawings, diagrams, calculation tables… (If required).
- The abstract of the invention/utility solution.
- Deed of assignment if the applicant and the inventor are not the same.
- Power of attorney (if required).
- The copy of the first application or exhibition certificate if claiming priority right under and international agreement.
- The voucher of payment of application filing fee and application publicizing fee.
- Above-mentioned documents must be submitted together. For the following documents, they can be submitted within 3 months from the date of filing the application:
- The Vietnamese version of documents 2), 3) and 5), if the application includes an English, French or Russian version.
- The original of document 7) if the application includes a copy thereof.
- The document 8), including its Vietnamese version.
Time limits applicable for entry into the national phase in Vietnam under both under PCT Chapters I (Article 22(3)) and II (Article 39(1)(b)) are 31 months from the priority date.
If claiming priority under the Paris Convention, the time limit for filing an application is 12 months from the first filing date of the first application or 6 months from the date the object has been displayed at an exhibition.
If claiming priority under the PCT, the above-mentioned time limit will be 31 months from the priority date.
If claiming priority 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.
After filing, an application for patent will be under process of examination which usually takes from 2 to 4 years, sometime even longer, before a patent can be granted. This process involves in 2 main stages:
- Formality examination is completed within 1 month from date that 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 then proceeds to the next stage.
- Within 42 months (for patent for invention) or 36 months (for patent for utility solution) from priority date of the utility solution, a request for substantive examination must be filed with the IP Vietnam. Otherwise, the application is deemed to be abandoned. The time limit of this examination shall be: 12 months from the date that the request for substantive examination is filed or date of publication of the application whichever come later.
The costs for filing a patent application in Vietnam are fairly inexpensive. These costs are varying according to the content of the application, such as number of drawings, number of independent claims, number of pages of the specification, etc. To get a free quote, please fill out this form.
In Vietnam, under current intellectual property law, the term of patent, provided that maintenance fees are paid on time, is 20 years, for patent for invention, and 10 years, for patent for utility solution, from the filing date or international filing date (for PCT application).
Between publication of a patent application and issuance of the patent, if a 3rd party commences to use an invention or utility solution which is identical with the invention or utility solution described in the application, the applicant shall be entitled to warn such party of the filed application. If, in spite of the above warning, this party continues using the invention or utility solution, the patent owner, after being granted, shall be entitled to seek damages for patent infringement for activities occurring between publication of a patent application and issuance of the patent.
Under the patent law, a patent owner has the following rights:
- The right to use the patented invention or utility solution exclusively;
- 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 right to sue infringers.
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.
Before the filing date of a patent application, if the patented invention/utility solution has been used by a third party independently of the owner of the patented invention/utility solution . This party shall have “prior user rights”; so called the prior user. The prior user is entitled such use within the scope and volume that have already been used before the filing date of the application.
The party with prior user rights shall not be allowed to transfer such right to another person, except they transfer the whole prior user rights together with their business establishment where the prior use is undertaken.