PADEMARK - Patent Attorneys/Trademark Attorneys in Vietnam

OPPOSITION

According to Vietnam IP Law, both pre-grant opposition and post-grant opposition are possible. At any time during the period from the date of publication to the issuance of a patent, any third party can file a written opposition with the NOIP to oppose against the grant or refusal to grant a patent. Post-grant opposition is available in the form of invalidation of a patent.

Pre-grant opposition can be filed on one of the following grounds:

   (i) the invention claimed in the pending patent application does not meet patentability criteria;

   (ii) the applicant(s) are not one who is entitled to file the patent application; and

   (iii) the absence of an agreement to file one application only between persons who are entitled to file such patent application in case that there are more than one person entitled to do so.

Invalidation can be initiated on one of the following grounds:

   (i) the patented invention did not meet patentability criteria upon issuance;

   (ii) the applicant(s) are not one who have been entitled to file the patent application that was granted the patent;

   (iii) the absence of an agreement to file one application only between persons who have been entitled to file such patent application in case that there are more than one person entitled to do so.

APPEAL

Applicant(s) or any third party having rights and/or interests in relation to the NOIP’s decision or notification with respects to the prosecution of a pending patent application may appeal the NOIP’s decision or notification either to the Ministry of Science and Technology or or initiate a lawsuit to the court in accordance with the Intellectual Property Law and relevant laws. The appellant must file a first instance appeal to the NOIP as the authority directly issuing the decision/notification. In case that the appellant does not agree with the administrative decision of the NOIP on the first instance appeal, the appellant may choose to further appeal against the first instance appeal’s decision by filing a further appeal (second instance appeal) against the first instance appeal’s decision to the Ministry of Science & Technology (MOST), or bringing a lawsuit to the administrative courts to appeal against the first instance appeal’s decision in accordance with the civil proceedings.