Conditions for patent registration in Vietnam

A patent in Vietnam is a technical solution in the form of a product or process that aims to solve a defined problem by applying natural laws. Inventions are protected based on a decision to grant a protection title by a competent state agency according to patent registration procedures. So what conditions are needed to protect an invention? The article below Viet An Law will provide the latest updates on conditions for patent registration in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022.

What is a patent?

According to the provisions of Clause 12, Article 4 of the Vietnamese Intellectual Property Law, a patent is a technical solution in the form of a product or process to solve a defined problem by applying natural laws.

Inventions are also one of the subjects protected by intellectual property rights in Vietnam according to the provisions of Clause 2, Article 3 of the Intellectual Property Law. The owner of a patent, after registering and being granted a patent protection title by the National Office of Intellectual Property, will have the exclusive right to use the patent during the protection period and be protected by law in the event of any infringement of their rights.

Patent registration rights

• The following organizations and individuals have the right to register patents: Authors create inventions with their efforts and expenses; Organizations and individuals invest funds and material means for authors in the form of assignments, or hiring; Organizations and individuals assigned to manage genetic resources provide genetic resources and traditional knowledge about genetic resources according to contracts for access to genetic resources and benefit sharing unless the parties agree otherwise or in the case of provisions of the Intellectual Property Law.
• In case many entities jointly create or invest in creating an invention, those organizations and individuals have the right to register and that registration right can only be exercised upon approval of all entities.
• Organizations and individuals with the right to register under regulations have the right to transfer the right to register to other organizations and individuals in the form of a written contract, to inherit according to the provisions of law, including the case of the application that has been submitted.

General conditions for patent registration in Vietnam

According to the provisions of Article 58 of the Intellectual Property Law 2005, as amended and supplemented in 2022, an invention is protected in the form of a patent if it meets the following conditions:

• Novelty;
• Have a creative level;
• Capable of industrial application.

For inventions that are not eligible for protection as patents, they can be simultaneously registered to grant protection for utility solutions if the following 3 conditions are fully satisfied:

• Novelty;
• It is not common knowledge;
• Capable of industrial application.

Regarding subject matter, content, limitation of rights, and transfer of industrial property rights for utility solutions, the same applies as for inventions.

The amended Intellectual Property Law 2022 has made several adjustments to the detailed content of the conditions for novelty of inventions, as follows:

The novelty requirement

The amended Intellectual Property Law in 2022 establishes two conditions for revealing the novelty of an invention:

• Disclosed as a patent document;
• Disclosure in the form of non-patent documents, respectively, for the invention applied for registration is considered new.

Specifically stipulated in Article 60 of the Intellectual Property Law 2005, as amended and supplemented by Clause 2, Article 2 of the amended Intellectual Property Law 2019 and Clause 19, Point c Clause 82, amended Intellectual Property Law 2022, an invention is not considered to have lost its novelty if it is publicly disclosed by the following subjects, provided that the patent application is filed in Vietnam within 12 months from the date of disclosure:

• Authors create inventions, industrial designs, and layout designs with their efforts and expenses;
• Organizations and individuals invest funds and material facilities for authors in the form of job assignments or hiring. Organizations and individuals assigned to manage genetic resources provide genetic resources and traditional knowledge about genetic resources according to the law. contract for access to genetic resources and benefit sharing, unless the parties agree otherwise;
• The leading organization for inventions is the result of scientific and technological tasks using the entire state budget;
• The leading organization for inventions, industrial designs, and layout designs is the result of scientific and technological tasks invested with many capital sources, including a part of the state budget. The right to register inventions, industrial designs, and layout designs corresponding to the proportion of the state budget is assigned to the presiding organization automatically and without compensation.
• State, for inventions that are the result of scientific and technological tasks in the field of national defense and security in cases where scientific and technological tasks use the entire state budget;
• State, for inventions that are the result of scientific and technological tasks in the field of national defense and national security in cases where scientific and technological tasks are invested with many capital sources, including one part of the state budget. The right to register inventions, industrial designs, and layout designs corresponds to the proportion of the state budget belonging to the State; or
• Persons who obtain information about inventions directly or indirectly from the above subjects.

The creative level

Under Article 61 of the 2005 Intellectual Property Law, as amended and supplemented by Clause 2, Article 2 of the amended Intellectual Property Law 2019, an invention is considered to have a creative level if it is based on technical solutions that have been publicly disclosed in the form of use, written description or in any other form domestically or abroad before the filing date or before the priority date of the patent application in the case of a patent application claim priority rights, the invention is a creative level, which cannot be easily created by a person with average knowledge of the relevant technical field.

Note: Utility solutions that are inventions disclosed according to the provisions of Clauses 3 and 4, Article 60 of the Intellectual Property Law cannot be used as a basis for assessing the creative level of that invention.

Capable of industrial application

Specifically, according to Article 62 of the Intellectual Property Law, an invention is considered capable of industrial application if it can be manufactured, mass-produced products, or applied repeatedly and stable results are obtained.

Some new points of the Intellectual Property Law 2022 on patent protection conditions

First, about the novelty condition. Before the amendment in 2022, the range of technical status for assessing the novelty of an invention under the old regulations did not include prior applications but was not announced before the filing date of late application, so it is not eligible to be classified as a loss of novelty when “publicly disclosed… before the filing date…”.

Therefore, to overcome the above limitation, the Intellectual Property Law as amended and supplemented in 2022 has amended the regulations on the novelty of inventions in Clause 1, Article 60, specifically adding several patent cases considered to have lost novelty: “Disclosed in another patent application with an earlier filing date or priority date but published on or after the filing date or priority date of that patent application” in addition to the loss of novelty due to public disclosure in the form of use, written description or any other form at home or abroad before the filing date of the patent application or before the priority date if having claim.

Second, the New Law 2022 also amends Article 100 (General requirements for industrial property registration applications) to provide documents explaining the origin of genetic resources or traditional knowledge about genetic resources in the patent application, if the invention is related to genetic resources or traditional knowledge about genetic resources.

When is an invention not considered to have lost its novelty?

According to Article 86 of the Intellectual Property Law 2005, as amended by Clause 25, Article 1 of the Amended Intellectual Property Law 2022, there are regulations on the right to register inventions, industrial designs, layout designs, and inventions that are not considered loss of novelty when published in the following cases provided that the patent application is filed within six months from the date of publication:

• The invention is published by another person without the permission of the person with the right to register as prescribed in Article 86;
• The invention is published by the person with the right to register as prescribed in Article 86 in the form of a scientific report;
• The invention is displayed by the person who has the right to register as prescribed in Article 86 at Vietnam’s national exhibition or an official international exhibition or is recognized as official.

For an invention to be protected, the consideration of novelty is extremely important and is also a relatively complicated process. Therefore, before deciding to register an invention, the patent owner needs to check the novelty of the invention he owns, to make sure that the invention has not yet been publicly disclosed and is significantly different from previously protected inventions.

The subject matter is not protected as an invention

The following subjects are not protected as inventions:

• Inventions, scientific theories, and mathematical methods.
• Schemes, plans, rules, and methods for performing mental activities, training pets, conducting games, and doing business; Computer Programs.
• Ways of presenting information.
• The solution has only aesthetic properties.
• Type of plants or animals.
• Plant and animal production processes are mainly biological and not microbiological processes.
• Methods of prevention, diagnosis, and treatment of diseases in humans and animals.

Clients who need advice or learn more about issues related to conditions for patent registration in Vietnam, please contact Viet An Law Firm for the best support.