PADEMARK - Patent Attorneys/Trademark Attorneys in Vietnam

Non-patentable Subject Matters

The following shall be exempted from protection under Vietnam patent law:

   1. discoveries, scientific theories, mathematical methods;

   2. schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business; computer programs;

   3. presentations of information;

   4. aesthetic solutions;

   5. plant varieties, animal varieties;

   6. essentially biological processes for the production of plants and animals except microbiological processes; and

   7. preventive, diagnostic and therapeutic method for treatment on the human/animal body.

Priority Rights

The applicant(s) is/are allowed to claim priority from a first patent application earlier filed in a foreign country in accordance with the Paris Convention (usually called Convention priority or from a first patent application earlier filed in Vietnam within 12 months from the date of filing of the first application.

Filling Patent Application

Vietnam has adopted the first-to-file system. Vietnam patent law determines priority based on the date of the first application and shall confer the rights on the party who is the first to file a patent application. That is to say, where two or more parties apply for a patent for the same invention, the first party to file will be granted the patent regardless of the date of actual invention. Under this system, who came up with the idea first does not matter. All that matters is who got their paperwork to Vietnam Patent Office first. Therefore it is advisable to file a patent application as soon as possible after the invention is conceived.

Formality Examination

Vietnamese patent applications shall be checked to see whether it fulfills the necessary procedural and formal requirements within 1 month from the filing date. The applications accepted as to formality shall be published in the 19th month from the priority date. The PCT national phase applications shall be published in the 2nd month from the date of acceptance.

Request for Substantive Examination

The published Vietnam patent applications shall not be examined on their merits without a request from either applicant or a third party. The request for substantive examination must be submitted to within 42 months from the earliest priority date. Late filing within six months computed from the expiration of the 42 month period is available upon payment of late submission fees. Failure to submit the request within the prescribed time limits shall result in the application to be deemed as having been withdrawn. For utility solution, the corresponding time limit is 36 months.

Substantive Examination Process

After the patent application has been filed with the Vietnam Patent Office, a patent examiner shall carefully review and examine the application in order to determine the invention's patentability. To be patentable, an invention must be novel, involve an inventive step, and is susceptible to industrial applicability. 

Novelty Requirement: An invention must be new on a worldwide basic in order to meet the novelty requirement stipulated by Vietnam patent law. An invention shall be considered to be new if it was not publicly disclosed by means of use, written description or in any other way inside or outside the country, prior to the filing date or the priority date where priority is claimed.

An invention shall not be considered as publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret. Further, an invention shall not be considered to lack novelty if:

   (i) the invention was disclosed by another person without permission of the inventor/applicant;

   (ii) it was disclosed by the inventor/applicant in a scientific report; and

   (iii) the invention was displayed at a national exhibition of Vietnam or an official or officially recognized international exhibition, provided that the patent application for such an invention is filed within 6 months from the date of disclosure. 

Inventive Step: An invention is regarded to involve an inventive step, if, having regards to all technical solutions already publicly disclosed by means of use, written description or in any other way inside or outside the country prior to the filing date, or where priority is claimed, the priority date of the patent application, it constitutes an inventive progress and cannot be easily created by a person having ordinary skill in the art.

There is no requirement for an inventive step for utility solution. That is, in order to be patentable a utility solution does not have to involve an inventive step. It need to be new only, and susceptible to industrial applicability.

Industrial Application: An invention shall be considered to be capable of industrial applicability if it can be applied to mass production or manufacture of the product or it is possible to repeatedly apply the process that is the subject matter of the invention to get stable results.

If no reasons for refusal have been found, the examiner will make a decision to grant a patent. A patent for invention shall be 20 years counted from the filing date of patent application for invention while it is 10 years for utility solution.

The Vietnam Patent Office may accept the examination results carried out in some other countries such as the United States, EPO, Japan, Australia, Canada, Russian Federation, etc. as well as family patent(s) issued in any of said countries.