Patent is normally understood as an invention created through research and development of science and technology, therefore i being an important tool to help businesses monopolize a product in the market and enhance its business strategy, especially in the field of science and technology. This article shall provide an overview of patent protection from a legal perspective, whilst providing additional remarks about the requirements to early publish the application submitted to the intellectual property authority.
1. Basic definition of invention
1.1. What is a patent?
Pursuant to Vietnam’s Intellectual Property Laws, an invention is understood as a technical solution in either (i) a product or (ii) a process, which helps to solve a defined problem by applying natural laws.
Thus, inventions in the form of products and processes are subject to patent protection registration. However, Intellectual Property Law excludes some non-protected objects in the form of inventions. Examples include scientific discoveries, scientific theories, mathematical methods, schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business, computer programs, presentation of information, a solution only for aesthetical pleasure, plant varieties, animal-breeds producing plants and animals mainly of a biological nature but not a microbiological process, methods of prevention, diagnosis and cure for humans and animals.
1.2. What are the legal conditions for patent protection?
For an invention to be protected, it needs to meet the conditions prescribed by law. An invention patent certificate is granted if the following conditions are met:
- Being novel;
- Involving an inventive step;
- Being susceptible to industrial application.
For patents which are granted an exclusive utility solution certificate should only meet the following conditions:
- Must be novel, and
- Involve an inventive step.
Patent’s novelty is the most important part of registration. The intellectual property authority compares it with the current technical status of registered and exposed inventions all over the world to evaluate the novelty. It does not limit the process to a single country. Therefore, before applying for a patent, the applicant needs to research thoroughly or hire an experienced intellectual property representative to research and limit the invention’s l risk of plagiarism.
Also, the two different types of certificates have different protection periods:
- The exclusive invention patent certificate is valid from the date of issuance and lasts up to 20 years from the date of submission.
- Exclusive utility solutions are valid from the date of issuance and last up to 10 years from the date of submission.
2. The process for patent registration in Vietnam
In accordance with Vietnamese laws, an invention will be protected after the following process:
Step 1: Look up and prepare an application for an exclusive invention patent or exclusive utility solutions
In particular, the patent application includes:
- 2 regulatory declaration forms,
- 2 Description of utility solutions/ invention patent,
- 2 Summaries of utility solutions/ invention patent,
- Power of attorney (if the utility solutions/ invention patent application is filed through an industrial property representative service organization), and
- Documents proving priority rights (if the patent application requires priority rights).
Step 2: Formality examination of the application
Step 3: Publication of the application
Pursuant to the rules on intellectual property, the patent application shall be published within the 19th month from the date of submission or from the priority date (for applications entitled to priority) or at an earlier time at request of the applicant. In addition, before the application information is published, all information shall be regulated confidentially to avoid losing the novelty of the invention during the appraisal process.
Step 4: Substantive examination of the application
The applicant may request the substantive examination at the first stage of submission and pay the charges and fee or submit request form within 42 months from the date of submission or from the priority date (if the application is entitled to priority rights). However, for patent applications that require an executive utility solution certificate, substantive examination request must be submitted within 36 months from the date of submission or from the priority date (if the application is entitled to priority rights).
Step 5: Grant a protection certificate and publish the application
3. Why a patent should be registered for protection.
Patent protection gives the owner exclusive rights to use and commercialize a patent in a market. In fact, when a patent has been protected, it strengthens the applicant’s economic prospects like:
- Building the reputation of the business in a market: When a business introduces a new product as a protected patent, it is trusted by investors, partners and customers for its scientific and technical expertise, investment ability, research, sustainable development and improvement in science and technology.
- Creating strength for the business in the market: Patent protection for a product or a process helps in creating business opportunities when trading and developing products in a market. In particular, monopoly not only limits the legal right but also helps the owner having such right to prohibit other entities from using, exploiting or importing inventions for commercial purposes without the owner’s permission.
- Creating advantages in negotiations of patent licensing: Protection of the invention also gives the applicant exclusive advantages in negotiating commercial contracts of patent license or the transfer of technology associated with the protected patent between enterprises and increases revenue of the business.
4. Will early publication of the patent in the course of legal registration benefit the applicant?
If a patent protected by law gives the owner economic privileges, the owner of that patent in return is also obliged to disclose it to the public based on the principle of balancing the individual interests of the patent owner and the social interest. Accordingly, the publication of patent information will be carried out with the expectation that everyone has access to scientific and technical advances, thereby promoting the research and creativity of society and the nation.
In accordance with Intellectual Property Law, the publication of the application shall be made only in the 19th month from the date of application or from the date of priority (for applications entitled to priority). However, the applicant may also request for early publication of a patent application in order to shorten the total time of substantive examination, but the following issues should be considered before requesting for early publication:
- Early publication of the application will likely affect the commercialization of a patent in the market. In fact, the patent registration period takes a few years. Ergo, the applicants often prioritize registration for protection with the intellectual property authority before bringing that invention to the market to obtain a protection title as soon as possible according to the principle of first to file. However, for patents that require time to prepare a commercialization plan and strategy before being introduced to market, non-disclosure and confidentiality of patent information within 19 months of filing is necessary for the applicant to prepare for commercial business.
- The early publication of the patent application could also pose risks. Competitors in the same field may be able to reverse-analyze the patent to create a similar product that is cheaper or develop new products based on the technology of the published patent for a competitive advantage in a market or may commit unfair competition practices which could damage the owner’s rights before launching the patent in the commercial market.
Hence, early publication of a patent application has its own advantages and disadvantages. Therefore, the applicant should consider their individual circumstances and business plan, and commercialization strategy of their business at different times implement early publication of patent application.
In summary, although the registration of patent protection takes a long period of time and requires meeting certain legal conditions, the protection of the patent brings many advantages to the owner. In addition, in the process of patent registration, the applicant should also consider issues related to their business plan and commercialization strategy to implement early publication of the patent application as prescribed.
