General information

Becoming a contracting party of the 1970 Patent Cooperation Treaty (PCT) since March 10, 1993, which consists of 143 member states as of October 4, 2013, Vietnam, through the National Office of Intellectual Property of Vietnam ("NOIP"), gets ready to receive PCT applications or non-PCT applications for grant of patent of invention or utility solution/utility model.

Definition of Invention

According to the 2005 IP Law as revised 2009, invention is construed that a technical solution in the form of a product or process which is intended to solve a problem by application of natural laws. There are two kinds of invention protectable as patent, i.e. an invention may be granted in the form of a patent for invention where technical solution bearing such invention has novelty, creativeness/non-obviousness and industrial applicability, or an invention, other than common knowledge, may be granted in the form of a patent for utility solution if such invention has novelty and industrial applicability. Kindly note that the term “utility solution” under the laws of Vietnam has the same meaning as commonly acceptable one, namely “utility model”, “petty patent”, “innovation patent”, “small patent” or “minor patent” in other jurisdictions.  

Subject Matters Ineligible for Protection as Invention

Under Section 59 of the IP Law, the following subject matters are excluded from protection as invention: 

1. Scientific discoveries or theories, mathematical methods.
2. Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games and doing business; computer programs.
3. Presentations of information.
4. Solutions of aesthetic characteristics only.
5. Plant varieties, animal breeds.
6. Processes of plant or animal production which are principally of a biological nature, other than microbiological processes.
7. Human and animal disease prevention methods, diagnostic and treatment methods

Conditions for Patentabilty

To qualify for an invention or utility solution patent, an invention must be one of the following three types:

1. A product in the form of a tangible object (e.g. tool, machine, equipment, part, electric circuit, etc.) which is presented by a collection of information identifying a man-made product, characterized by signs (features) of its configuration, and functions (is utilized) as a device to meet a certain human need; 
2.  A product in the form of a material (e.g. material, component, food, pharmaceutical, etc.) which is presented by a collection of information identifying man-made product, characterized by signs (features) of its presence, ratios and state of its elements, and functions (is utilized) as a device to meet a certain human need; or a product in the form of a biological material (gene, genetically modified plant/animal, etc.) which is presented by a collection of information on a product containing genetic information modified by human manipulations and capable of self-regeneration;
3. A process (technological process; diagnosing, forecasting, checking or treating method) which is presented by a collection of information identifying the method of performing a given process or job, characterized by signs (features) of the order, conditions, components, methods and devices for performing manipulation to achieve a certain objective. 

(a) Novelty

An invention shall be deemed novel if it has not yet been publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application.

• It is published by another person without permission from the person having the right to register it as defined in article 86 of this Law;
• It is published in the form of a scientific presentation by the person having the right to register it as defined in article 86 of this Law;
  
• It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it as defined in article 86 of this Law.

(b) Creativity of Invention

An invention shall be deemed to be of an inventive nature if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art.

(c) Industrial Applicability

An invention shall be deemed to be of an inventive step if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art.

Filing Requirements for non-PCT applications  

1. Two copies of both Vietnamese and English translation version of Specification of Invention, of which content must comprise such sections as: Tittle of invention, Use Filed of the Invention, Technical State of Use Field of the Invention, Technical Nature of the Invention, Brief Description of Accompanied Drawings (if applicable), Detailed Description of Invention Realization Variations, Examples of Invention Realization, Protection Coverage (claim) and Abstract of the Invention (not in excess of 150 words);
2. A Power of Attorney (PoA) simply signed by a person with legal authority to bind a juristic applicant. Neither notarization nor legalization is required. A faxed or scanned copy of PoA is acceptedat the filing but the original shall be filed within 01 month from the filing date at no cost; 
   
3. Certified copy of priority documents (under the Paris Convention)
4. Name of country, application number and filing date of foreign application corresponding with the application claiming priority date.
5. Full name, address and nationality of the Applicant and Inventor

Filing Requirements for PCT applications

To enter the Vietnamese national phase of a PCT application, within a period of 31 months counting from the earliest priority date or filing date, the following documents are to submit with NOIP: 

1. A copy of International Patent Application consisting of Specification, PCT publication, International Preliminary Examination Report on Patentability (Form PCT/IPEA/409) , International Search Report (Form PCT/ISA/210), Notification of the Recording of a Change (Form PCT/IB/306). In case the Applicant requests entry into Vietnamese national phase before the international publication date, a copy of international patent application as filed is required;
2. Vietnamese translation of the international application: The description, consisting of a description section, protection request, annotations for drawings and abstract, and modified copy and explanation of modified contents, if the international application has been modified under Article 19 and/or Article 34(2)(b) of the PCT.
3. Certified copy of priority documents (under the Paris Convention)
4. Power of Attorney simply signed by Applicant, neither notarization nor legalization is required, must be filed within 34 months from the earliest priority date.

 Examination Procedures for non-PCT application

1. Formality examination: formal requirements for specification and international patent classification as mentioned above are checked in 01 month from filing date before NOIP issues its decision on formality acceptance of application 
2. Application Publication: patent application upon formality acceptance shall be published on the IP Gazette in the nineteen (19th) month computed from the priority date or from the filing date (if there is no priority date) or within two (02) months from the date of formality acceptance, whichever date is the later.
3. Substantive Examination:  assessment of novelty, creativity and susceptibility of industrial application against as-filed invention are simultaneously conducted by NOIP in eighteen (18) months commencing from the gazetted date.
4. Statement of Grant of Protection: official fee for grant of patent for invention/utility solution including 1st annuity shall be paid by the applicant within 30 days before NOIP issues a patent in around 30 days from the payment.

A granted patent for invention will take effect in the whole territory of Vietnam as from the granting date until the expiry of 20 years, or 10 years in case of a patent for utility solution/utility model, counting from the filing date provided that the following annuities must be paid to NOIP timely.