Vietnam: Patents Comparative Guide

Last Updated: 28 June 2019
Article by Le Quang Vinh and Nguyen Khanh Linh
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1 Legal framework

1.1 What are the sources of patent law in your jurisdiction?

The Law on Intellectual Property of 2005, as revised in 2009, and the Civil Code of 2015.

1.2 Who can register a patent?

Any organisation or individual that has supplied funds and material facilities to an inventor as part of a job assignment or hire contract is entitled to register the inventions of that inventor. Where an inventor has directly created an invention at his or her own expense, he or she is entitled to register the invention.

2 Rights

2.1 What rights are obtained when a patent is registered?

The patent owner obtains all rights to use, authorise others to use and prevent unauthorised use of the patented invention.

2.2 How can a patent owner enforce its rights?

The patent owner may enforce its rights through administrative measures, a civil action or both, before enforcement authorities such as specialised inspectorates, market surveillance agencies, customs offices and people's committees at all levels; or before the competent courts.

2.3 For how long are patents enforceable?

Depending on the complexity of the case, remedies of administrative measure or civil initiation chosen by patentee, involved time may be between several months and one year or more.

3 Obtaining a patent

3.1 Which governing body controls the registration procedure?

The National Office of Intellectual Property of Vietnam (NOIP) is the agency responsible for receiving and examining patent applications and granting patents.

3.2 What is the cost of registration?

The costs may vary depending on the number of independent claims, drawings and pages of the specification (which are subject to mandatory Vietnamese translation). They typically range between several hundred and several thousand US dollars.

3.3 What are the grounds to reject a patent application?

Section 59 of the Law on Intellectual Property sets out seven categories of unpatentable subject matter (see question 3.7). A patent may also be refused registration due to lack of novelty, lack of inventive step or lack of industrial application.

3.4 What programmes or initiatives are available to accelerate or fast track examination of patent applications?

Yes. The Patent Prosecution Highway (PPH), a pilot programme signed by NOIP and the Japan Patent Office (JPO), was launched on 1 April 2016. Under this programme, substantive examination at NOIP may be expedited if the JPO has already found that the relevant invention is patentable. NOIP also recently began allowing applicants to proactively provide it with the results of foreign patentability searches and foreign substantive examination reports, on the basis of which NOIP may accelerate the substantive examination of a Vietnamese application or the Vietnamese phase of a Patent Cooperation Treaty application.

3.5 Are there any types of claims or claiming formats that are not permissible in your jurisdiction (eg, medical method claims)?

‘Use' claims are not regarded as patentable subject matter. Therefore, ‘use' claims, ‘Swiss-type' claims and ‘second or further medical use' claims are not accepted by NOIP at the formal examination stage. NOIP contends that they do not constitute patentable subject matter under Section 4(12) of the Law on Intellectual Property, which defines a ‘patentable invention' as a technical solution in the form of a product or process which is intended to solve a problem by the application of natural laws

3.6 Are any procedural or legal mechanisms available to extend patent term (eg, adjustments for patent office delays, pharmaceutical patent term extension or supplementary protection certificates)?

No.

3.7 What subject matter is patent eligible?

Any substance, product or process/method that solves a particular technical problem by the application of natural laws is patentable, except for the following as outlined in Section 59:

  • scientific discoveries or theories and mathematical methods;
  • schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games and doing business;
  • computer programs;
  • presentations of information;
  • solutions of an aesthetic nature only;
  • plant varieties and animal breeds;
  • processes of plant or animal production which are principally of a biological nature, other than microbiological processes; and
  • human and animal disease prevention methods, diagnostic and treatment methods.

3.8 If the patent office does not grant a patent, is an appeal available and to whom?

Yes.

If NOIP rejects a patent application through what is known as a first office action, the applicant may submit a response to the NOIP patent department that issued the first office action within three months of the date of issuance (extendable for a further three months against a prescribed charge). If this response is not accepted by NOIP, confirmation of rejection (the second office action) will be released by NOIP. The applicant may appeal the second office action before NOIP's Appeal Settlement and Enforcement Department within 90 days (non-extendable). If NOIP's director general upholds the second office action, the applicant may appeal to NOIP's supervisory body, the Ministry of Science and Technology, within 30 days of the date of issuance of the second office action. Alternatively, it may initiate an administrative lawsuit before a Hanoi-based court within one year of the date of receipt of NOIP's decision.

4 Validity/post-grant review and/or opposition procedures

4.1 Where can the validity of an issued patent be challenged?

The only agency with competence to invalidate or cancel the validity of an issued patent is the National Office of Intellectual Property of Vietnam (NOIP). If a party is dissatisfied with NOIP's decision on a request for invalidity, it may either appeal to NOIP's supervisory body, the Ministry of Science and Technology, or initiate an administrative lawsuit before a competent court.

4.2 How can the validity of an issued patent be challenged?

Any challenger or third party that wishes to object to the validity of an issued patent must submit a written request for either invalidation or cancellation to NOIP.

4.3 What are the grounds to invalidate an issued patent?

A patent may be invalidated under Section 95 of the Law on Intellectual Property in any of the following circumstances:

  • The renewal fee for the patent has not been paid in due time;
  • The patent owner has relinquished its industrial property rights pertaining to the patent; or
  • The patent owner no longer exists and does not have a lawful heir.

A patent may be cancelled by a third party under Section 96 in either of the following circumstances:

  • The patent owner was not legally entitled to register the patent; or
  • At the time of grant, the patent did not satisfy the conditions for protection.

4.4 What is the evidentiary standard to invalidate an issued patent?

No evidentiary standard is set out in the Law on Intellectual Property in relation to invalidation or cancellation proceedings. The party seeking invalidation or cancellation bears the burden of proof, and the standards for verifying or determining the evidence presented equate to the general principles for evidence collection and delivery set out in the Civil Procedure Code of 2015.

4.5 What post-grant review or opposition procedures are available for third parties to challenge the validity of a patent?

Post-grant review is not available under Vietnamese law. Validity is reviewed through invalidation procedures under Section 95 of the Law on Intellectual Property or cancellation procedures under Section 96 (see question 4.3).

4.6 Who can oppose a granted patent?

Any third party has the right to challenge the validity of a granted patent. Opposition proceedings under Vietnamese law may be brought against any pending patent application, but not against a granted patent.

4.7 What are the timing requirements for filing an opposition or post-grant review petition?

While Vietnam has no provisions on post-grant review, an opposition period starts to run as soon as a patent application is published in the Official Gazette of Industrial Property and ends with NOIP's decision to grant or refuse protection.

4.8 What are the grounds to file an opposition?

An opposition may be submitted on grounds such as non-compliance with the provisions on:

  • entitlement to register;
  • priority date; or
  • patentability requirements.

4.9 What are the possible outcomes when an opposition is filed?

The opposition may be refused or allowed by NOIP; while an opposition that resembles the inter partes review procedure available in the United States may be suspended upon the written settlement of the parties. However, in practice, oppositions are rarely filed against pending applications in Vietnam, because Vietnam is not as yet a technologically sophisticated country. If an opposition is filed, substantive examination of the patent application will be delayed for between months and years, depending on the complexity of the subject matter.

4.10 What legal standards will the tribunal apply to resolve the opposition or challenge, and which party bears the burden of proof?

Unlike oppositions against trademarks and designs, which are normally filed by third parties, oppositions against pending patent applications are rarely filed in Vietnam

4.11 Can a post-grant review decision be appealed and what are the grounds to appeal?

Not applicable.

5 Patent enforceability

5.1 What makes a patent unenforceable?

A granted patent may be unenforceable if one of the following defences is successfully established:

  • invalidity;
  • exhaustion (first sale doctrine);
  • prior commercial use;
  • use in service of personal needs or for non-commercial purposes, or for the purposes of evaluation, analysis, research, teaching, testing, trial production or information collection to apply for a production licence;
  • temporary importation or circulation of products, or use in a foreign means of transport in transit through Vietnam; and
  • use under a compulsory licence.

5.2 What are the inequitable conduct standards?

Neither inequitable conduct nor an inequitable conduct standard exists under Vietnamese law.

5.3 What duty of candour is required of the patent office?

No duty of candour exists under Vietnamese law.

6 Patent infringement

6.1 What Constitutes Patent Infringement?

Under Section 126 of the Law on Intellectual Property, two types of act constitute patent infringement:

  • unauthorised use of a patented invention; and
  • use of an invention while a patent is pending at the National Office of Intellectual Property (NOIP) without paying compensation to the applicant, which is entitled to the provisional rights in its published patent application.

However, the law does not set out any specific rules, tests or standards for determining the existence of either act, or the constituent elements of infringement of a patented invention. The principle for determining patent infringement is to be found in subordinate legislation, particularly Decree 119/2010/ND-CP of 30 December 30 2010, amending Decree 105/2006/ND-CP providing for implementation of the Law on Intellectual Property with respect to protection of IP rights (Decree 105, as revised).

According to Decree 105 as revised, to constitute infringement, an act must satisfy the following criteria:

  • The allegedly infringing act involves patented subject matter;
  • There is an infringing element to the allegedly infringing subject under consideration;
  • The alleged infringer is neither the patent owner nor any person or entity that is authorised to use the patent, except where one of the defences set out in question 5.1 is available; and
  • The allegedly infringing act was committed in Vietnam (an act shall also be deemed to have been committed in Vietnam if it was committed online and was aimed at consumers or internet users based in Vietnam).

The second factor above is the most important, and may take any of the following forms:

  • A product or part of a product is identical or equivalent to a product or part thereof within the scope of protection of an issued patent;
  • A process is identical or equivalent to a patented process; or
  • A product or part of the product is manufactured using a process which is identical or equivalent to a patented process.

6.2 Does your jurisdiction apply the doctrine of equivalents?

Yes.

6.3 Can a party be liable if the patent infringement takes place outside the jurisdiction?

Theoretically, yes: an infringement will be deemed to have been committed in Vietnam if it was committed online and aimed at consumers or internet users in Vietnam (see question 6.1). However, thus far, no provisions or guidance has been issued on how to determine when and under what conditions a party can be liable where infringement occurs outside the territory of Vietnam.

6.4 What are the standards for wilful infringement?

The Law on Intellectual Property and its subordinate legislation are generally silent with regard to wilful infringement. However, Section 199 provides that any organisation or individual that commits an act of infringement shall, depending on the nature and severity of such infringement, be dealt with through the application of civil, administrative or criminal remedies.

Depending on the nature and severity of the infringement, an infringer may be issued with a caution or a fine ranging from VND500,000 to VND500 million, together with supplemental sanctions such as confiscation of goods or materials, suspension of production/business practices, and forcible removal or forcible destruction of infringing articles.

6.5 Which parties can bring an infringement action?

Generally speaking, in almost cases the patent owner is required to bring an infringement action. However, a licensee is also entitled to take legal action against an alleged infringer if the relevant licence agreement allows it to take legal measures against infringement.

6.6 How soon after learning of infringing activity must an infringement action be brought?

Where a patent owner avails of the administrative route, bringing patent infringement proceedings before one of the authorities with competence for IP rights enforcement (ie, specialised inspectorates, the Market Surveillance Agency or people's committees at all levels), the limitation period is:

  • two years from learning of the infringement, if the infringement is ongoing; or
  • two years from termination of the infringement, if the infringement has ceased.

If a civil lawsuit is initiated, this limitation does not apply, unless a litigant requests the court to apply it in advance of a first-instance decision.

6.7 What are the pleading standards to initiate a suit?

Not applicable.

6.8 In which venues may a patent infringement action be brought?

Generally speaking, the court with jurisdiction to hear a patent infringement suit is the court at the place where the defendant has his or her residence or business, if the defendant is an individual; or where its head office is based, if the defendant is an organisation or entity. If a patent infringement is determined to be profit purpose for both plaintiff and defendant, the provincial-level people's court will have jurisdiction; otherwise, the case will be heard by the district-level people's court.

6.9 What are the jurisdictional requirements for each venue?

Not applicable.

6.10 Who is the fact finder in an infringement action?

Any litigant that requests the court to protect its lawful rights and interests has the burden of proving that its claim is legal and grounded.

6.11 Does the fact finder change based on venue?

Not applicable.

6.12 What are the steps leading up to a trial?

6.13 What remedies are available for patent infringement?

The remedies for patent infringement in civil or administrative proceedings are basically the same, and in particular include compulsory destruction, distribution or use for non-commercial purposes of goods, raw materials and materials, and facilities used principally for the production or trading of infringing goods, provided that this will not affect the exploitation of IP rights.

Where a patent infringement case is heard by a court.

6.14 Is an appeal available and what are the grounds to appeal?

Yes. A first-instance judgment may be appealed within 15 days of the date of issue. If the decision being appealed relates to the temporary suspension or suspension of first-instance proceedings, the appeal must be lodged within seven days of receipt of the decision. The normal legal grounds for appeal apply, including incorrect assessment of, or mistakes in, matters of fact and matters of law.

7 Discovery

7.1 Is discovery available during litigation?

Sections 106 and 110 of the Civil Procedure Code of 2015 set out mechanisms for compelling the surrender and protection of evidence. In principle, all evidence must be publicly and equally disclosed, except for evidence concerning state secrets, professional secrets, trade secrets or private confidential information, at the request of the litigants.

7.2 What kinds of discovery are available?

Not applicable.

7.3 Are there any limitations to the amount of discovery allowed?

No.

8 Claim construction

8.1 When during a patent infringement action are claim terms defined by the tribunal?

Not applicable.

8.2 What is the legal standard used to define claim terms?

Not applicable.

8.3 What evidence does the tribunal consider in defining claim terms?

Not applicable.

9 Remedies

9.1 Are injunctions available?

Yes. Interim and permanent injunctions are available under the Law on Intellectual Property. Interim injunctions may be awarded by a court upon or after the initiation of a lawsuit, and before hearing the counterargument of the party that will be affected by such interim injunction. An injunction may be applied to goods that are suspected of infringing IP rights, raw materials and materials or facilities for the production or trading of such goods, and may take one of the following forms:

  • retention;
  • seizure;
  • prohibition against any alteration of the original state of such goods or any movement of such goods; and
  • prohibition against transfer of ownership.

9.2 What is the standard to obtain an injunction?

An injunction can be obtained if:

  • there is a risk that irreparable harm would be caused to the patent owner in the absence of an injunction; or
  • allegedly infringing goods or evidence related to the allegedly infringing acts is likely to be dispersed or destroyed in the absence of an injunction.

9.3 Are damages available?

Yes.

9.4 What types of damages are available?

Damages include material damages, moral damages and other expenses in support of the damages claim, including reasonable attorneys' fees.

9.5 What is the standard to obtain certain types of injunctions?

No specific standards apply.

9.6 Is it possible to increase or multiply damages due to a party's actions?

The patent owner can request the court to calculate the damages on either of the following bases:

  • total material damages calculated as the amount gained by the infringer, without taking account of the reduced profits of the patent owner; or
  • the amount that it would have cost the infringer to obtain a licence to use the patent in the way in which it was used in the infringement.

If the compensation cannot be determined on either basis, the compensation level will be set by the court, but must not exceed VND500 million.

9.7 Are sanctions available?

Yes. The following civil liabilities may be imposed on the infringer:

  • compulsory termination of the infringement;
  • compulsory public apology and rectification;
  • compulsory performance of civil obligations;
  • compulsory payment of damages for loss; and
  • compulsory destruction, distribution or use for non-commercial purposes of goods, raw materials, and materials and facilities used principally for the production or trading of infringing goods, provided that this will not affect the exploitation of IP rights.

9.8 What kinds of sanctions are available?

Yes. Sanctions will be imposed on an infringer only where administrative remedies are sought. They include:

  • major sanctions (eg, caution, fine);
  • additional sanctions (confiscation of infringing evidence, forcible suspension of business practices); and/or
  • remedies (eg, forcible removal or destruction of infringing articles, forcible distribution or use for non-commercial purposes of infringing articles).

9.9 Can a party obtain attorneys' fees?

Yes.

9.10 What is the standard to obtain attorneys' fees?

There are no rules or specific guidelines on the standard for obtaining attorneys' fees. In practice, from court to court, attorneys' fees of up to $10,000 are often awarded.

10 Licensing

10.1 What patent rights can a party obtain through a licence?

The rights to an issued patent are characterised as property rights. Thus, a patent owner enjoys all ownership rights over the patent, including rights of possession, use and disposition. Where the right to use, exploit or apply a patented substance, structure or process is subject to transfer, this right shall be subject to a licence agreement.

The licensor and licensor are free to agree on:

  • the type of licence (exclusive or non-exclusive);
  • the duration of the licence; and
  • the scope of the licence – including limitations on the right to use the patented subject matter, the geographical scope of the licence and the price of the licence – provided that no terms and conditions of the licence unreasonably restrict the rights of the licensee.

10.2 What limits can a patent owner impose on a licence?

Under Section 144.2 of the Law on Intellectual Property, a licensor may impose the following restrictions on a licensee:

  • a prohibition against improving the patented subject matter, compelling the licensee to transfer to the licensor free of charge any improvements it makes or the IP rights relating to such improvements;
  • a direct or indirect restriction against exporting goods produced or services provided under the licence to territories where the licensor neither holds the respective patent nor has the exclusive right to import such goods;
  • an obligation to buy all or a certain percentage of raw materials, components or equipment from the licensor or a third party designated by the licensor, where this is not required to ensure the quality of the goods produced or services provided by the licensee; or
  • a prohibition against complaining about or initiating lawsuits with regard to the validity of patent or the licensor's right to license.

11 Antitrust

11.1 Are there any limits on patent protection due to antitrust laws?

There are no limits imposed on patent protection under the new Law on Competition of 2018, which will take effect on 1 July 2019.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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