The
Ministry of Science & Technology of Vietnam issued the
Circular 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 Circulars replace the Circular 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 Circulars have been issued substantially based on the said Circular
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 Circular 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
Circular 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 Circular 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 Circular 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 Circular, 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 Circular, 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 Circular 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:
