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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;
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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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