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New
Circulations on Patent & Design in
Vietnam |
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Pursuant
to the Decree No. 54/2003/ND-CP issued on 14 May 2003 by
the Government of Vietnam, stipulating the functions,
obligations, authority and structure of Ministry of
Science and
Technology; |
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Pursuant
to the Decree No. 63/CP dated 24 October 1996 by the
Government of Vietnam, stipulating detailed regulations
on Industrial Property, amended by the Decree No.
06/2001/ND-CP issued on 01 February
2002; |
The Ministry of
Science & Technology of Vietnam issued the Circulation No.
29/2003/TT-BKHCN & No. 30/2003/TT-BKHCN on 5 November
2003, guiding on the procedure of establishing the industrial
property right over Industrial Design and Patent respectively.
These Circulations replace the Circulation no. 3055/TT-SHCN
regulating on establishment of IP rights issued on 31 December
1996 by the Ministry of Science & Technology, and they are
effective from the date of publication in the Vietnam
Industrial Property Gazette
In
general, these new
Circulations have been issued substantially based on the said
Circulation No. 3055/TT-SHCN, however they give the guidance
on the procedure of establishment and protection for ID &
Patent more specifically, more clearly and more fully, in the
order of the following issues:
1.
Common regulations
on: certification of documents; applicants; power of attorney,
etc.
2.
Requirements of
application in respect of: the formality, the content, the
filing and the
receipt;
the process
of preliminary examination, substantive examination; the
publication; the amendment
of
application.
3.
Evaluation of objects according to criteria of
protection: the suitability, the applicability
and
the novelty.
4.
Issuance,
registration, appeal and request for cancellation of validity
of patents/certificates.
5.
Regulations on
international Applications (for Invention, Utility Solution)
6.
Amendment,
maintenance of patent/certificates.
7.
Collection and
refundment of the fees; time extension and time reduction.
Regarding the time
limit of examination of application: the time frame of
each stage of examination process are reduced: one (01) month
for preliminary examination, in case of having any amendments
this time limit will be lasted for 15 days; six months (06)
for substantive examination for Industrial Design and 12
months for patent, in case of having any amendments, this time
limit will be lasted for 01 month; one (01) month for recordal
of change of applicants/proprietors, renewal of
patents/certificates.
Regarding
substantive examination, the new
Circulation guides in detail on using of search result in
process of examination, on considering the opinion of the
third party, on amending of application in respect of the
formality and the explanation of applications content, on
canceling and restoring the substantive examination, on the
process of examining the objects according to the criteria of
protection.
Specially,
the Circulation
provides officially and clearly the regulations on the
formality of refunding of the payment; on time extension of
amending, supplementing or opposing the NOIPs opinion; and on
the allowance of filing request for examination of application
within shorter time-limit.
As for Invention,
Utility Solution
Regarding the
formality, which is regulated
more specifically on the number of words per page of
description, maximum is 450 words/page; the abstract of patent
description consists of less than 150 words. The application
may be accompanied with supplement documents that are
electronic data of a part or the entire of content
thereof.
Regarding the
content of application, there are
regulations more detail on the homogeneity of the application
in accordance with the provision 2, the Article 11 of the
Decree. The Claim should be illustrated by neither the
reference to the description nor the drawings and structured
with one sentence. The Claim should be formed by two parts:
the limitation
and the distinctiveness. The
Description have to include the content of detailed description of
the method of implementation of patent. Besides, the new
Circulation also stipulates in detail on the requirement of
application in respect of biology science
(included in the entire Item 6.10 & 6.11).
Regarding the
formality examination of application, there are
regulations more specifically on multi-object application: if
the shortcoming relates only some of objects included in the
application, the application shall be not accepted therefor
and still accepted for remain ones.
Regarding
substantive examination, as for the
multi-object application, if there are some objects that are
not amended or amended incorrectly, the refusal of granting
the patent shall concern those objects only. The patent shall
be granted for the remain objects meeting the criteria of
protection, provided that the applicant must amended the
description thereof.
Regarding the
evaluation of objects in accordance with the criteria of
protection, this part includes
detailed regulations on the applications not to meet the
requirement of granting patent; the definition of technical
solution and of the acceptable/unacceptable one. Clearly, the
new Circulation give the definition more specific in order to
evaluate the applicability and the novelty, or the creation
level of technical solution.
Regarding the
maintenance of patents, according to the
guide of this Circulation, the time of a valid patent is
counted from the granting date of patent for the first
validity year.
Regarding the PCT
Application, both the
application designating and the application selecting Vietnam
should be applied for entering the national phase within 31
months counting from the priority date. International Search
Office and Preliminary Examination Office include the
Intellectual Property of Korea.
As for Industrial
Design:
Regarding the
formality of the application, the application
may be accompanied with the supplement documents which are
electronic date of a part or the entire of the content
thereof.
Regarding the
content of the application, the requirement is
more clear on the homogeneity of the application in accordance
with the provision 2, the Article 11 of the Decree. The
different models of an ID may be requested for protection in
separated applications provided that the applicant must
indicate clearly the filing date and filing receipt of the
first applications in the following ones. However, the
applicant shall be granted only one patent for all those
models of the ID. Five (05) in stead of six (06)
drawings/photos of the ID are required for filing. In
accordance with the new Circulation, the Claim must include
features of industrial design that are claimed for protection,
i.e. the new features are different substantially from those
of the similar disclosed designs. Those features of ID must be
described in the order of: feature of cubic and/or of lines;
and/or the interrelation of those features; and/or the color
(if any).
Regarding the
substantive examination of the Application, the time frame
for substantive examination is 6 months counting from the date
of publication (the ID application is published in the second
month as of the date of acceptance of application).
Regarding the
section of evaluating objects in accordance with the criteria
of protection, the new
Circulation stipulates more clearly the base of evaluating the
IDs capability of serve as a model; the base of evaluating
the IDs novelty, which include the basic feature of
IDs.
Note:
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The
Circulation No. 29/2003/TT-BKHCN over Industrial Design has
been effective from the 26th November
2003.
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The
Circulation No. 30/2003/TT-BKHCN over Patent has been
effective form the 27th November 2003.
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