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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
application’s 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 NOIP’s 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 ID’s capability
of serve as a model; the base of evaluating
the ID’s 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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