Objection to patent registration in Vietnam

If an invention wants to be protected, it must be registered with a competent state agency. During the appraisal and processing of protection applications, the invention may be opposed by a third party. The time limit for objection to an invention/solution application is prescribed by law to ensure the legitimate rights and interests of relevant parties. However, in reality, many customers have difficulty determining this deadline, leading to late and unacceptable objections. To answer our customers’ questions, Viet An Law Firm would like to present the following article on the time limit for objection to patent registration in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022;
• Decree No. 65/2023/ND-CP guiding the Intellectual Property Law on industrial property, protection of industrial property rights, rights to plant varieties, and State management of intellectual property ;
• Circular 23/2023/TT-BKHCN details several articles of the Intellectual Property Law and measures to implement Decree No. 65/2023/ND-CP.

What is a patent in Vietnam?

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

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 useful solutions are also technical solutions, novelty than the technical level in the world. However, it does not need to meet the same level of creativity as a patent. The purpose of utility solutions is to create products that improve or increase the functionality of previous patents. In fact, technical solutions that are not protected by patents are often applied for protection by the application owner as utility solutions to create exclusive rights to exploit and use.

Objection to patent registration in Vietnam

During the process of working and searching for information, any organization or individual discovers a patent application or utility solution application that the subject matter stated in this application does not meet the requirements to be granted a protection title or considered this protection will affect their legitimate rights and interests, they have the right to object to the grant of a protection title to the application register there.

The time limit for objecting patent applications

The implementation of objection to a patent application is regulated within a specific period to ensure the legitimate rights and interests of both the patent applicant and third parties.

Pursuant to Article 112a (Objection to an industrial property registration application) of Intellectual Property Law as amended and supplemented in 2022, effective from January 1, 2023, the time limit for objection to a patent registration application is specified as 09 (nine) months from the date the patent application is published on Industrial Property Gazette.

In case the objection is filed beyond the objection statutory time limit as prescribed in Article 112a of the Law on Intellectual Property, the National Office of Intellectual Property refuses to accept the application at the time of receipt.

Comparing the time limit for objection to a patent application with some other industrial property subjects as follows:

Dossier of objection to patent registration in Vietnam

An objection to a patent application is all the documents that need to be submitted to object to a patent application. A dossier of objection to a patent application includes:

• Document expressing objections;
• Documents or citations of information sources to prove objections;
• Power of Attorney (if applying through a representative);
• Copy of fee payment voucher (in case of payment of fees and charges via postal service or direct payment to the National Office of Intellectual Property account).

Number of application sets: 01 set

Procedures for objection to patent application in Vietnam

Following Circular 23/2023/TT-BKHCN, the procedure for objection to a patent application is specifically regulated as follows:

Step 1: Receive application

Organizations and individuals submit 01 set of dossier for objection to the patent registration application to the National Office of Intellectual Property.

Step 2: Examination of the objection

• In case the objection is related to the right to register but there is no clear basis to determine that the applicant does not have the right to apply according to regulations, the National Office of Intellectual Property shall notify the objector to file a lawsuit in court. Within 02 months, the objector did not send the National Office of Intellectual Property a copy of the Court’s notice of accepting the case, the procedure of examination for protecting this patent shall be continued as if there were no objections. In case of receiving a copy of the Court’s notice of accepting the case, the National Office of Intellectual Property temporarily stops processing the application to wait for the Court’s judgment.
• In case the objection meets the regulations on the objection time limit, the National Office of Intellectual Property shall notify about the objection to the applicant, setting a time limit of 02 months from the date of notice for the applicant to respond in writing (unless otherwise prescribed by law).
• After receiving response from the applicant, if deemed necessary, the National Office of Intellectual Property shall notify the objector of the response to the objector and set a time limit of 02 months from the date of notification to respond in writing correspondingly.

Some questions related to the objection to patent application in Vietnam

What are the conditions for patent protection?

Pursuant to Clause 1, Article 58 of the Intellectual Property Law, an invention is protected in the form of a patent only if the following conditions are satisfied:

• Novelty: the novelty of an invention is specifically stipulated in Article 60 of the Intellectual Property Law.
• Have a creative level: the creative level of an invention is specifically stipulated in Article 61 of the Intellectual Property Law.
• Capable of industrial application: the industrial applicability of an invention is specifically stipulated in Article 62 of the Intellectual Property Law.

What are the conditions for the protection of utility solutions?

Pursuant to Clause 2, Article 58 of the Vietnam Intellectual Property Law, inventions are protected in the form of a utility solution patent if they are not common knowledge and meet the following conditions:

• Novelty;
• Capable of industrial application.

Customers who need advice on the objection to patent registration in Vietnam, please contact Viet An Law Firm for the best support.