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Third party observation on the patent application in Vietnam

Invention is one of the subjects of industrial property rights in particular and intellectual property rights in general. To establish rights to an invention, organizations, and individuals need to carry out procedures to submit an invention registration application at the National Office of Intellectual Property to be granted a protection title. During the application processing process, third parties can give their observations on the patent application. In this article, Viet An Law will provide legal regulations related to third party observation on the patent protection application in Vietnam.

 

Legal basis

  • Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022;
  • Decree 65/2023/ND-CP detailing 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 on intellectual property;
  • Circular 23/2023/TT-BKHCN guiding the Intellectual Property Law and Decree 65/2023/ND-CP guiding the Intellectual Property Law on industrial property.

What is a patent?

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.

An invention is protected in the form of a patent if it meets the following conditions:

  • Novelty;
  • Creative level;
  • Capable of industrial application.

An invention is protected in the form of a utility solution patent if it is not common knowledge and meets the following conditions:

  • Novelty;
  • Capable of industrial application.

What is a patent application?

An invention registration application is understood as an organization or individual applying to a competent state agency to be granted a protection certificate for an invention in the form of an invention patent or an explanation patent. useful method.

After applying, the National Office of Intellectual Property will process the patent application according to the order and procedures prescribed by law.

Third party observation on the patent application in Vietnam

During the process of working and searching for information, when discovering a patent application or utility solution application, any organization or individual believes that the subject matter stated in this application does not meet the requirements suing to be granted a protection title or considering that granting a protection title for this patent application will affect their legitimate rights and interests, all have the right to express their observations on the grant of protection title.

The subject has the right to comment on the patent application

Any third party has the right to give observations to the state management agency on industrial property rights on whether or not to grant a protection title for that application.

Time of request

From the date, the patent application is published in the Industrial Property Official Gazette to before the date of issuance of the decision to grant a protection title.

Formality

Observations must be made in writing accompanied by documents or information sources cited to prove them.

New points of the amended Intellectual Property Law 2022 on third party observation on the patent application in Vietnam

One of the outstanding new features of the revised Intellectual Property Law in 2022 is the regulations related to third party observations on the granting of protection titles in general and third party observations on invention registration applications. mechanism in particular according to the provisions of Articles 112 and 112a of the Intellectual Property Law. Specifically:

First, add regulations on the value of a third party observation on the patent application

Accordingly, Article 112 of the Intellectual Property Law amended in 2022 has added the regulation “The document stating the observation of a Third party is considered a reference source of information for the processing of industrial property registration applications.”

Thus, this regulation confirms that the observations of third parties are only a source of reference information in the process of processing patent applications, the National Office of Intellectual Property is not responsible for processing documents stating their observations. According to Intellectual Property law, the National Office of Intellectual Property is not obliged to notify the party of the observation of the results of the observation.

Second, add regulations on opposition to patent applications

Accordingly, in Article 112a of the Intellectual Property Law amended in 2022, regulations on opposing patent applications have been added. Accordingly, before the date of issuance of the decision to grant a protection certificate, within 09 months from the date the patent application is published, any third party has the right to object to the patent application. This objection must be made in writing, accompanied by documents or citing sources of information to prove it, and fees and charges must be paid.

This is the first time, in the Intellectual Property Law 2022, in addition to the mechanism for third party observations on registration applications, a mechanism for opposing patent applications is also added.

The opposition mechanism is stronger than the third-person observation mechanism in that, for third-person observations, the National Office of Intellectual Property simply considers it a source of reference information during the examination of the application, and for the mechanism to object to a patent application, the National Office of Intellectual Property must handle this objection according to a procedure similar to the mechanism for canceling a protection certificate.

That is, the National Office of Intellectual Property must send written objections to the application owner for comments, then send the application owner’s comments to the objectors for them to respond, and this back and forth feedback is only ended when the National Office of Intellectual Property believes there is enough information to decide to grant or refuse to grant a protection title. At that time, the National Office of Intellectual Property must inform the parties and decide to grant a protection certificate. In case of disagreement with the observation of the National Office of Intellectual Property, the objector will proceed with the procedure to appeal this decision.

Compare third party observations and objection of patent application in Vietnam

Similarity

  • These are all procedures for expressing a third party observation on a patent application
  • The subject with the right to request is any third party.
  • All arise from the date the patent application is published in the Industrial Property Official Gazette.
  • Both opinions must presented in writing and accompanied by documents or citations of information sources to prove it.

Difference

  Third party observation on the patent application Objection to patent application
Duration From the date, the patent application is published in the Industrial Property Official Gazette to before the date of issuance of the decision to grant a protection title. Before the date of issuance of the decision to grant a protection certificate, within 09 months from the date the patent application is published.
Fees and charges No fees or charges are required Must pay state fees and charges.
Nature The third party observation is only a reference source of information during the processing of a patent application.

The National Office of Intellectual Property only receives observations from third parties, but may not respond or have to establish separate procedures to resolve observations from third parties.

Has mandatory value, not just for reference.

The National Office of Intellectual Property receives objections and resolves them as a separate, independent procedure.

Statutory procedure Because the National Office of Intellectual Property is not responsible for processing this observation document, the National Office of Intellectual Property is not obliged to notify the party of the observation of the results of the observation. Because the Intellectual Property Office is responsible for handling objections in the protest application, the Department must notify the opposing party of the results of handling the protest application.

Intellectual property representative service of Viet An Law Firm

  • Legal advice on patent registration, and third party observations on patent applications;
  • The application owner’s representative registers the invention at the National Office of Intellectual Property.
  • Monitor registration progress, respond, and respond when necessary.
  • Representing the customer to oppose a third party patent application when there are sufficient grounds to determine rights infringement.
  • Consulting and supporting customers in discussing and resolving procedures at the National Office of Intellectual Property.

If you have any questions or need advice on legal services related to third party observations on patent registration as well as legal issues regarding patent registration, please contact us. Viet An Law for the best support!

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