1. How can the applicant file an industrial design application?
In order to obtain right for industrial design in Vietnam,you must file the application for granting an industrial design patent,directly or by mail,to the National Office of Intellectual Property of Vietnam (NOIP) or its brand offices in Ho Chi Minh City or Da Nang.
2. Who can file industrial design applications?
Organizations,individuals of Vietnam,foreign individuals permanently residing in Vietnam and foreign organizations and individuals having a production or trading establishment in Vietnam may file applications for an industrial design patent either directly or through a lawful representative in Vietnam.
Foreign individuals not permanently residing in Vietnam,foreign organizations and individuals not having a production or trading establishment in Vietnam shall file applications for an industrial design patent through a lawful representative in Vietnam.
3. What is Vietnam’s filing system?
Vietnam has adopted the first-to-file system,i.e. where two or more applications are filed by many different parties for protection of the same design,the patent may only be granted to the valid application with the earliest priority or filing date among applications that satisfy all required conditions; where there are two or more applications satisfying all the conditions and having the same earliest priority or filing date,the industrial design patent may only be granted to a single application out of these applications under an agreement by all applicants. Without such an agreement,all these applications shall be refused for the grant of the industrial design patent.
Accordingly,it is advisable to file an application for an industrial design patent as soon as possible after the design was invented and not to make the design public before filing the application.
4. How does the formality examination take place?
An application for an industrial design patent filed with the NOIP shall be subject to formality examination for evaluating its validity.
The time limit for formality examination of an application is one (1) month from the filing date. In the course of formality examination,if the applicant corrects or supplements documents on his/her own initiative or upon the request of the NOIP,the time limit for formality examination may be prolonged for a period of time during which documents are corrected or supplemented.
Before the expiration of the time limit above,the NOIP shall complete the formality examination of applications and send notices on examination results to applicants.
- For a valid application,the NOIP shall send to the applicant a notice on acceptance of valid application.
- For an application failing to meet formal requirements,the NOIP shall send to the applicant a notice of intended refusal to accept valid applications,clearly stating reasons and setting a time limit for the applicant to correct errors or to object such intended refusal and set a time limit of one month from the date of notification for the applicant to give opinions or correct errors.
5. What if the application is refused as to its formality?
If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit,the NOIP shall send a notice on its refusal of the application and,upon the applicant’s request,refund the paid fees and charges for jobs to be done after the formality examination. Applicants and all organizations and individuals having rights and interests directly related to the decision may lodge a complaint with the Director General of NOIP or initiate a lawsuit at court if they disagree with this decision within 90 days from the date the person having the right to complaint receives the notice of this decision.
Within 10 days from the date of receipt of a complaint about the decision of refusal,NOIP shall issue a notice of acceptance or rejection of such complaint,clearly stating the reason(s) for rejection.
Upon the expiration of the time limit for settlement of the complaint about decisions or notices concerning the application for an industrial design patent (the 1st complaints) by the NOIP such decisions or notices,if the complaint is not settled or the complainant disagree with complaint-settling decisions of the NOIP,the complainant or person having rights and interests directly related to the decision may further lodge their complaints (the 2nd complaints) to the Minister of Science and Technology or initiate a lawsuit at court within 30 days from the date of expiration of the time limit for settlement of the 1st complaint if by that date the 1st complaint is not settled,or from the date the person having the right to complaint receives or knows about the decision on settlement of the 1st complaint. Upon the expiration of the time limit for settlement of the 2nd complaint above or if the complainant disagree with complaint-settling decisions of the Minister of Science and Technology,such complainant or person may initiate a lawsuit at court.
6. When is a valid industrial design application published?
Within 02 months as from the date the application is accepted as formally valid,it will be published in the Industrial Property Official Gazette for oppositions and comments of third parties. Applicant shall pay a fee for such publication.
7. How does the substantive examination take place?
The purpose of substantive examination of patent applications is to assess the patentability of objects claimed in the application under the requirements and corresponding protection scope. A substantive examination will be carried out by examiners of the NOIP within 18 months from the date of the request for substantive examination or the date of the application publication, depending on which comes later.
If the applicant, in the course of substantive examination, corrects or supplements documents or makes justifications on his/her own initiative or upon the request of the NOIP, the time limit for substantive examination may be prolonged for a period of time during which the applicant does so.
On the date of expiration of the time limit for substantive examination of an application at the latest, the NOIP shall send to the applicant one of the following notices:
- a notice on its intended refusal to grant a patent, clearly stating the reason(s) for refusal, possibly guiding the change of the protection scope and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to give opinions and satisfy the requirements (The applicant may request prolongation of the time limit), if the object claimed in the application fails to satisfy the protection conditions.
- a notice on its intended refusal to grant a patent, clearly pointing out errors and setting a time limit of two (2) months from the date of issuance of the notice for the applicant to justify or correct errors. (The applicant may request prolongation of the time limit), if the object claimed in the application satisfies the protection conditions but the application still contains errors.
- or makes reasonable justifications within the time limit abovea notice on its intended grant of a patent and request the applicant to pay the granting fees, if the object claimed in the application satisfies the protection conditions or makes reasonable justifications within the time limit above.
If the applicant to whom the NOIP has sent a notice on its intended refusal of the application fails to correct errors or unsatisfactorily corrects errors or makes no opposition or makes unreasonable opposition to the intended rejection within the set time limit, the NOIP shall send a notice on its refusal of the application.
When dissatisfaction is in the decision of refusal of examiners, the applicant may appeal against the decision of refusal with Director General of NOIP or initiate lawsuits at court.