Subject Matters Ineligible for Protection as Industrial Designs
Under Section 64 of the 2005 IP Law as revised 2009, the following subject matters are excluded from protection as industrial designs:
a. Outward appearance of a product which is necessarily due to the technical features of the product.
b. Outward appearance of civil or industrial construction works.
c. Shape of a product which is invisible during the use of the product.
Entitlement to File Application
Organizations, individuals of Viet Nam, foreign individuals permanently residing in Viet Nam and foreign organizations and individuals having a production or trading establishment in Viet Nam may file applications for an industrial design patent either directly or though a lawful representative in Viet Nam.
Foreign individuals not permanently residing in Viet Nam, foreign organizations and individuals not having a production or trading establishment in Viet Nam shall file applications for an industrial design patent through a patent and design agent registered before NOIP.
First-to-File Principle
Viet Nam adopts the first-to-file system, i.e. whereby only the soonest filed application for or only the earliest priority claimed application for patent of an industrial design among others for the same industrial design may be granted a patent for that industrial design.
Conditions for Patentabilty of Industrial Design
A Patent for Industrial Design may be granted if that applied-for Industrial Design fully satisfies with such criteria as (a) it is novel, (b) creative nature, and (c) capable of industrial application.
(a) Novelty
An industrial design shall be deemed to be new if it primarily differs from other industrial designs which have been publicly disclosed by use or by means of written descriptions or in 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 industrial design.
Two industrial designs shall not be deemed to be significantly different from each other if they are only different in features of appearance which are not easily noticeable and memorable and which can not be used to distinguish such industrial designs as a whole.
An industrial design shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.
An industrial design shall be deemed not to have lost its novelty if it is published in some limited cases, provided that the application for registration of the industrial design is filed within six (6) months from the date of publication.
(b) Creativity of Industrial Designs
An industrial design shall be deemed to be creative if, based on industrial designs already publicly disclosed through use or by means of written descriptions or in any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the application for registration of the industrial design, the industrial design cannot be easily created by a person with average knowledge in the art.
Creativity of industrial design is deemed devoid if such industrial design is reproduced or imitated partly or wholly inherent natural shape of a tree, fruit or animal, shapes of geometric figures (round, ellipse, triangle, square, rectangular, regular polygons and prisms, cross-sections of which are foregoing figures), which are widely known.
(c) Industrial Applicability
An industrial design shall be regarded to be susceptible of industrial application if it can be used as a model for mass manufacture of products with the outward appearance embodying such industrial design by industrial or handicraft methods.
Filing Requirements for Industrial Design
a. 04 (four) sets of Photos/Drawings bearing Industrial Design (their sizes must be neither larger than 190mm x 277mm and nor smaller than 90mm x 120mm)
b. A Power of Attorney to be simply signed by the Applicant;
c. A Description of Industrial Design (comprising name of Design, Field in which Design is being used, closet known Design of the same product bearing the proposed Design (if any), listing photos or drawings in order, description section shall present all special shaping features, and request for protection).
Other Notably Practical Information
Except for complicated designs, e.g. machine, automobile which may additionally require photos/drawings representing sectional views, an acceptable standard set of photos/drawings bearing industrial design shall consist of 7 projections, namely: front view, right side view, left side view, rear elevation, top view, bottom view, and perspective view. Below are some accepted examples of sets of photos/drawings:
A set of bottle drawings
A set of bottle photos
A set of photos of aluminum profile
A set of drawings of aluminum profile
Timeline for Obtaining a Patent for Industrial Design
Where an application for registration of an industrial design goes smooth, it takes about 10 months counting from the filing date to receive a patent for industrial design.
a. Formality examination: primarily checking international classification of design, description, requirements for sets of photos or drawing, etc., in 01 month from filing date before NOIP issues its decision on formality acceptance of application;
b. Application Publication: applied-for industrial design upon formality acceptance shall be published on the IP Gazette in a period of 02 months counting from the date of decision for the purpose of possible opposition by third party;
c. Substantive Examination: assessment of novelty, creativity and susceptibility of industrial application against as-filed industrial design are simultaneously conducted by NOIP in 7 months commencing from the gazetted date.
d. Statement of Grant of Protection: official fee for grant of patent for industrial design shall be paid by the applicant within 30 days before NOIP issues a patent for industrial design in 30 days therefrom.
Post-registration advisory
A patent for industrial design will take effect in the whole territory of Vietnam as from the granting date until the expiry of 05 years counting from the filing date and it is renewable for 2 times, each for every 05 years.
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