Patent is normally understood as a new invention created through research and development of science and technology. Therefore, invention is also 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 and additional remarks about the requirements to early publish the application submitted to the intellectual property authority.
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:
For patents which are granted an exclusive utility solution certificate should only meet the following conditions:
In particular, novelty of the patent is the most important for 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 loss of novelty.
Also, the two different types of certificates have different protection periods:
In accordance with Vietnamese law, 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:
Step 2: Formality examination of the application
Step 3: Publication of the application
Pursuant to the law of 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
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:
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:
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.
The article is based on applicable law at the time noted as above and may no longer be appropriate at the time the reader approaches this article as the applicable law has changed and the specific case that the reader wishes to apply. Therefore, the article is only for reference.