Patents are a type of intellectual property that can contribute greatly to the country’s industry. That is why the State always encourages the granting of protection titles to inventions that are novelty, capable of industrial application, and have a creative level. So how is the novelty of an invention demonstrated and what is the invention that loses its novelty by itself? The following article Viet An Law will present the regime on lost novelty in patent registration in Vietnam.
Under Clause 1, Article 60 of the Intellectual Property Law, which stipulates the novelty of an invention, an invention is considered new if it does not fall into the following cases:
According to the provisions on novelty in the Intellectual Property Law, it can be seen that inventions have lost their novelty because they are:
According to Article 60.1 of the Intellectual Property Law stipulated above, an invention is publicly disclosed when used, described in writing or in any other form and meets:
For example, if an invention mentioned in the applicant’s patent application has a previous filing date, the invention filed later is considered to have lost its novelty and does not meet the conditions for registration of protection.
Note: In cases where the invention has been disclosed in a previous application, it should be noted that there may still be an exception that will not be considered a loss of novelty under the new regulation in 2022. Specifically, in cases where the invention is disclosed in the other patent application with an earlier filing date or priority date that is published on or after the filing date or priority date of that patent application is not considered to lose novelty. This is an additional case according to the provisions of the Intellectual Property Law amended in 2022.
For example: Invention 1 was filed on December 1, 2021, and published on March 5, 2023; Patent 2 is similar to Patent 1, which was filed on May 4, 2022. When examining the patent application, the novelty of invention 2 is not lost even though it was published in an application with a previous filing date, but that application was published after the filing date of patent application 2.
According to Clauses 2,3,4, Article 60, and Article 86 of the Intellectual Property Law 2005 as amended in 2022, cases that have been previously disclosed but have not been considered to have lost novelty include:
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.
On January 1, 2023, Mr. A created invention B and showed his results to some friends (only limited to these people). After a long time, Mr. A learned that an invention needs to be registered to receive long-term protection. Hesitating about whether your invention will be registered for protection due to loss of novelty or not. On November 1, 2023, Mr. A filed a patent application in Vietnam and was accepted because it belongs to the case where the invention has not lost its novelty when only a limited number of people know and have obligations to keep the invention secret within 12 months from the date of disclosure.
A patent is protected in Vietnam when it simultaneously meets the following three conditions:
Specifically stipulated in Article 60 of the Intellectual Property Law 2005, amended and supplemented by Clause 2, Article 2 of the Amended Intellectual Property Law 2019, Clause 19, Point c Clause 82, Amended Intellectual Property Law 2022 as analyzed above.
According to Article 61 of the Intellectual Property Law, an invention is considered to have an inventive step if it is based on established technical solutions be publicly disclosed in the form of use, written description, or 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 enjoys priority, the invention is an innovative step, which cannot be easily created by a person with average knowledge of the relevant technical field.
Note: Technical 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.
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 is the content of the invention and stable results are obtained.
Clients who need advice or learn more about legal issues related to patent registration, utility solution patent registration, industrial design, and trademark registration, please contact Viet An Law Firm for the best support.
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