Time limit for publication of patent application in Vietnam

Inventions and useful solutions that want to be protected must be registered with competent state authorities. During the examination and processing of protection applications and patent applications, the solution will be announced according to the provisions of Intellectual Property Law. However, in reality, many clients have difficulty determining the time limit for publication of applications. In the article below, Viet An Law Firm would like to present the time limit for publication of patent application in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022.
• Decree 65/2023/ND-CP has detailed several articles and measures to implement the Intellectual Property Law on industrial property, protection of industrial property rights, rights to plant varieties, and state management of intellectual property.
• Decision 3038/QD-BKHCN on announcing newly issued administrative procedures and abolished administrative procedures in the field of intellectual property under the scope and management functions of the Ministry of Science and Technology.

What is a patnent?

According to Clause 12, Article 4 of the Intellectual Property Law, patnent means a technical solution in the form of a product or process that is intended to solve a problem by application of natural laws.

Conditions for patent protection

According to Clause 1, Article 58 of the Law on Intellectual Property, an invention shall be eligible for protection in the form of the grant of an invention patent when it satisfies the following conditions:

• It is novelty;
• It is inventive nature;
• It is susceptible to industrial application.

What is the utility solution?

The concept of utility solutions is not specifically regulated in the current Intellectual Property Law, but it can be understood that utility solutions are also technical solutions, and have novelty than the technical level in the world. However, it does not need to meet the same level of creativity as an patent. The purpose of utility solutions is to create products that improve or increase the functionality of previous inventions.

Conditions for protection of utility solutions

According to Clause 2, Article 58 of the Intellectual Property Law, unless an invention is common knowledge, it shall be protected in the form of the grant of a utility solution patent when it satisfies the following conditions:

• It is novelty;
• It is susceptible to industrial application

Publication of patent and utility solution applications in Vietnam

Inventions and utility solutions that want to be protected must apply for registration at competent state authorities. After receiving the application and conducting a formality examination of the application for invention registration, utility solutions, and valid applications, the Vietnam National Office of Intellectual Property will publish it in the Industrial Property Official Gazette (which contains intellectual property documents in which the National Office of Intellectual Property – the State management authorities for Industrial Property, under the Ministry of Science and Technology, announces activities to establish, suspend, cancel, and grant the protection title) and publish so that any third party or interested party can know the content of that patent application.

This is considered an important basis for parties to exercise their right to express opinions and object to applications for invention registration and utility solutions. Third parties can only make comments and objections after the application is published. Specifically:

• Third-person opinion is a procedure that allows receiving public comments on industrial property registration applications, and on that basis, making decisions on applications under examination. The third person’s opinion can be submitted from the date the industrial property registration application is published in the Industrial Property Official Gazette to the date of the decision to grant a protection title;
• Opposition is a procedure that allows a third party to challenge the validity of an industrial property registration application, requesting a state authority to refuse to grant a protection title for an invention or utility solution. Objections to patent or utility solution applications are only allowed within 9 months from the date the application was announced.

The publication of patent applications is carried out under the provisions of the law on intellectual property.

Time limit for publication of patent application in Vietnam

The publication of patent applications is carried out by the provisions of the law on procedures for patents/utility solutions registration. Specifically, opposition will be applied after evaluating the form of the valid registration application and interpreting the application and before conducting a substantive examination of the registration. Therefore, for the granting of protection titles to be on schedule and to protect the legitimate rights and interests of participating parties, the state regulates the appropriate time for publishing patent applications and utility solutions.

According to Article 110 of the Law on Intellectual Property, and the Decision 3038/QD-BKHCN, the deadline for publishing applications for inventions and utility solutions registration for each type of application is specified as follows:

• Applications for registration of inventions shall be published in the 19th month from the filing date or the priority date, as applicable, or at an earlier time at the request of the applicant.
• Applications for registration of industrial designs, marks, or geographical indications shall be published within two (02) months from the date such application is accepted as being valid.
• Confidential patent applications due to their private nature are not published in the Industrial Property Official Gazette. In case of declassification, the declassified confidential patent application will be published in the Industrial Property Official Gazette within 03 months from the date of declassification (Clause 6, Article 50 of Decree 65/2023/ND-CP).

Some questions related to the publication of patent applications and utility solutions

What contents are included in the publication of patent and utility solution applications?

The content of the application publication is information related to valid applications, including split applications published in the Industrial Property Official Gazette, including information related to formally valid applications recorded in the notice of acceptance of a valid application, information related to valid application (application transfer, split application, original application number of split application…); invention summary with drawings (if any);

Who has the right to access the information in the published application?

Everyone can access detailed information about the nature of the subject matter stated in the application published in the Industrial Property Official Gazette or request the National Office of Intellectual Property to provide such information and must pay a fee to provide information according to regulations.

Patent and useful solutions registration services of Viet An Law

• Consulting, searching, evaluating usability, and registering for protection of inventions/useful solutions in Vietnam and abroad;
• Unofficially or officially research for patent information at the National Office of Intellectual Property – Independent costs;
• Complete the application file for a patent protection title;
• Monitor application processing progress at the National Office of Intellectual Property;
• Representing clients throughout the entire process of establishing rights and responding to official correspondence with the National Office of Intellectual Property on patent registration;
• Exchange and provide information to clients during the process of registering for patent/utility solution protection.
• Consulting and implementing services to maintain the validity of patent protection titles granted in Vietnam and abroad;
• Consulting and evaluating the possibility of violating currently protected patent rights;
• Negotiate, draft, examination, and register contracts to transfer use rights or ownership of patent in Vietnam and abroad.

Clients who need advice on the deadline for publishing patent applications or useful solutions in Vietnam, please contact Viet An Law Firm for the best support.