Confidentiality of patent applications before publication in Vietnam

For an invention to be protected, it must be registered with a competent state authority. After receiving the application and conducting a formal examination, a valid patent registration application will be published by the Intellectual Property Office of Vietnam (IP of Vietnam) in the Industrial Property Gazette by the provisions of intellectual property law. Before this publication, information in the patent application will be kept confidential to ensure the applicant’s rights. In the article below, Viet An Law Firm provides clients with some information about the confidentiality of patent applications before publication in Vietnam.

What is a patent?

• According to the Intellectual Property Law 2005, as amended and supplemented in 2009, 2019, and 2022, a patent means a technical solution in the form of a product or process that is intended to solve a problem by application of natural laws. It is one of the subjects protected under intellectual property rights in Vietnam.
• The Intellectual Property Law also excludes certain objects from patent protection, including: Scientific discoveries or theories, mathematical methods; diagrams, plans, rules, and methods for intellectual activities, training pets, playing games, or doing business; presentations of information; solutions of aesthetic characteristics only; plant varieties, animal breeds; processes of plant or animal production which are principally biological, other than microbiological processes; human and animal disease prevention methods, diagnostic and treatment methods.
• Once a patent is registered and granted a certificate by the Vietnam Intellectual Property Office, the patent holder receives a protection title and is protected under the law against any infringement of patent rights.

General conditions for inventions to be eligible for protection

• To be eligible for protection, an invention must meet the legal conditions. 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 novel;
  • It is inventive;
  • It is susceptible to industrial applications.
• 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 novel;
  • It is susceptible to industrial applications.

Confidentiality of patent applications before publication in Vietnam

Confidentiality period

• According to Clause 1, Article 111 of the Intellectual Property Law 2005 (amended and supplemented in 2009, 2019, and 2022), before applications for registration of inventions and industrial designs are published in the Official Gazette of Industrial Property, the State administrative body for industrial property rights must keep the information therein confidential.
• Specifically, for an invention to be protected, an application must be submitted to the competent state authority. Upon receiving the application and examining the formal examination, an invention registration application shall be published in the nineteenth month from the date of priority or the filing date in case the application has no date of priority or within two months after it is accepted as a valid application (if no priority date is claimed).
• Before applications for registration of inventions and industrial designs are published in the Official Gazette of Industrial Property, information therein confidential shall be kept.

What is kept confidential?

According to regulations, the following information in a patent application is confidential prior to publication:

• Origin of the application: May be a divisional or converted application; filing date.
• Title of the invention: Set by the applicant and consistent with titles in accompanying documents.
• International patent classification: Based on the translated classification table from the English version published by WIPO.
• Applicant (organization or individual requesting patent protection): Includes name, address, and contact information (phone number, email, fax,….)
• Representative of the applicant (if authorized or legally represented): Includes name, address, phone number, email,…
• Inventor (if the applicant is not the inventor): Includes name, address, nationality, contact address,…
• Documents in the application: Includes basic documents (application form, description, fee receipts…) and other documents (abstract, translations, power of attorney…), including the number of pages, number of copies, and the language used
• Applicant’s declaration: Address, date of the application, signature, and stamp (if any).
• Applicant’s requests: Such as claiming priority rights, request for substantive examination,..

Competent authorities are responsible for confidentiality

The competent authority responsible for maintaining the confidentiality of patent applications is the state competent authority on industrial property rights. Specifically:

• Ministry/Department of Science and Technology;
• Intellectual Property Office of Vietnam (a body under the Ministry of Science and Technology, primarily responsible for patent registration).
• Headquarters: 386 Nguyen Trai Street, Thanh Xuan District, Ha Noi.
• Representative offices:
• Ho Chi Minh City: 7th Floor, Ha Phan Building, 17-19 Ton That Tung Street, Pham Ngu Lao Ward, District 1, HCMC;
• Da Nang City: 3rd Floor, 135 Minh Mang Street, Khue My Ward, Ngu Hanh Son District, Da Nang.
• People’s Committees of Provinces and centrally-run cities.

Handling breaches of confidentiality obligations

According to Clause 2, Article 111 of the 2005 Law on Intellectual Property, amended in 2009, 2019, and 2022, if a state employee of the State administrative body for industrial property rights discloses confidential information in a patent application, they shall be subject to the following:

• Disciplinary actions in accordance with Decree 112/2020/ND-CP:
• For civil servants holding leadership or managerial positions: Disciplinary forms include reprimand, warning, demotion, dismissal, and forced resignation.
• For civil servants not holding such positions: Similar forms of discipline apply, except dismissal is not applicable.
• If the information disclosed causes loss and damage to applicants, such employees must pay compensation under the law.

Why is it necessary to keep a patent application confidential before publication?

To protect the legal rights and interests of the patent applicant

Keeping a patent application confidential helps ensure the lawful rights and interests of the applicant (owner/author) before the official publication in the Industrial Property Gazette. In practice, before an industrial design is granted a Certificate of Ownership, it is not yet legally recognized. Competitors in the same field may reverse-engineer the invention to create a similar product at a lower cost or develop new products based on the technical content of the applicant’s invention to gain a competitive advantage in the market. This could also lead to unfair competition and cause damage to the applicant when commercializing the invention.

To reduce the risk of legal disputes

• According to the Intellectual Property Law, ownership rights to an invention only arise after a decision to grant a patent is issued. Applying to the competent state authority is only the basis for establishing such rights. If information about the design is leaked before the certificate is granted, it may lead to disputes over ownership rights, as others may exploit this to refine and file a similar invention or new product based on the technical content of the original invention.
• Keeping the application confidential helps protect the priority right to the invention as stipulated in Decree 65/2023/ND-CP. If the application is disclosed before the Certificate is granted, the applicant may lose the right of priority, and someone else may file a patent application first, thereby losing the opportunity to safeguard their legitimate interests.

Above is the advice of Viet An Law on the issue about confidentiality of patent applications before publication in Vietnam. Clients who have related questions or need legal support about employees take leave without permission regulation in Vietnam, please contact Viet An Law Firm for the best support!