Under Article 4.12 of the Law on Intellectual Property (IP Law), an invention is defined as a technical solution in the form of a product or a process for solving a determined problem by the application of laws of nature.

An invention must satisfy the requirements of:

– Absolute novelty

– Inventive step, and

– Industrial applicability.

A utility solution (utility model) is the same as an invention (during the prosecution, a patent application for invention may be converted into a patent application for utility solution and vice versa), except:

i. A utility solution must satisfy the requirements of:

– Absolute novelty

– Not being ordinary knowledge. This requirement is not clarified in the legal documents. The Vietnam Guidelines for patent examination provide only an example of a solution that would be considered ordinary knowledge: “The subject-matter claimed is a method of protecting a steel structure by covering the surface of the structure with anti-rust paint.” Though this requirement is inherently subjective, the implication is that the solution must be “unusual” to some degree, and not something that can be easily observed, and

– Industrial applicability.

ii. The period of protection is 20 years for patents for invention from the filing date, while it is 10 years for patents for utility solution from the filing date.

iii. The deadline for filing a request for examination in a patent application for invention is 42 months from the earliest priority date, while it is 36 months for a patent application for utility solution.

Only patents granted by the Intellectual Property Office of Vietnam (IPVN) can be valid in Vietnam. Vietnam does not have mechanisms like a validation or re-registration of a foreign granted patent for the same to take effect in Vietnam.

Under Article 86 of the IP Law, in general, the following organizations and individuals shall have the right to file the patent application:

i. Inventors who create the invention by their own labor and expenses;

ii. Organizations or individuals who invest funds and facilities to the inventors in the form of a job assignment or job hiring, organizations and individuals assigned to manage genetic resources provide the genetic resources or traditional knowledge about the genetic resources under contracts for access to the genetic resources and benefit-sharing, unless otherwise agreed by the parties involved or in the cases specified in Article 86a of this Law (Article 86a relates to inventions of the State);;

* In case multiple organizations and individuals jointly create or invest to create an invention, the organizations and individuals shall all have the right to file an application for the invention and such right may only be exercised with the consensus of all.

* An organization or individual that has the right to file an application for an invention can assign such right to other organizations or individuals by a written contract, bequest or inheritance in accordance with law, even where an application has already been filed.

Under Article 89 of the IP Law, it is required for foreign individuals not permanently residing in Vietnam, and foreign organizations and individuals without production or business establishments in Vietnam to file their patent applications through Vietnamese IP representatives.

For the rest, the filer can be the applicant.

1. For national phase applications of PCT applications

1.i. Specification

– A Vietnamese translation of the specification must be filed at the time of filing the application. No extension is possible.

– If there are amendments under PCT Article 19 or 34, Vietnamese translations of the amendments are required at the time of filing the application. And, when filing the application, the applicant has to indicate whether the applicant wishes the IPVN to examine the original specification or amended specification.

1.ii. Name, address and nationality of inventor, and name and address of applicant

– These data must be designated in an application form which must be filed at the time of filing the application.

– This information is reviewed quite strictly by examiners. For example, a small discrepancy of an address among the application documents may result in an office action. It is likely quite complex to deal with this issue in the national phase. Therefore, it is recommended to make requests under PCT Rule 92bis to avoid such discrepancies.

1.iii. Power of attorney (POA) 

The IPVN requires an original POA or a copy of a general POA already filed. The non-extendable deadline for submitting the original POA or the copy is 34 months from the earliest priority date and notarization is not required.

2. For Paris Convention applications

2.i. Specification

A Vietnamese specification must be filed at the time of filing the application. There is no mechanism to file a specification in a foreign language first, and then, submit the Vietnamese specification.

2.ii. International Patent Classification (IPC) symbols and figures accompanying the abstract

– IPC symbols of the invention are required to be indicated in an application form which must be filed at the time of filing the application. If no symbol is indicated in the application form or incorrect symbols are indicated, the IPVN will classify the invention and charge a fee.

– One or more figures to accompany the abstract part of the application are often required to be indicated at the time of filing the application. The figures should be the ones which characterize the invention. A fee for figures from the second will be charged.

2.iii. Name, address and nationality of inventor; name and address of applicant; and filing date, receiving state and number of priority application

These data must be designated in the application form.

2.iv. POA

The IPVN requires an original POA or a copy of a general POA already filed. There is no fixed deadline for the submission of a POA. When examining as to formalities for an application without a POA, the IPVN would issue an office action requiring the submission of a POA within two months from the date of the office action (with the possibility of extending the deadline once for an additional two months). The applicant should proactively submit the POA, preferably at the time of filing the application and latest at the time of submitting the priority document (if any) to avoid the office action. Please note that the notarization for a POA is not required.

2.v. Priority document 

– The non-extendable deadline for submitting the priority document is three months from the filing date.

– The IPVN also requires a Vietnamese translation of its cover sheets to determine the applicant of the priority application.

– If the applicant of the priority application is not the applicant of the Vietnamese application, it is required to submit an additional document like an assignment to prove that the applicant of the Vietnamese application has the right to claim the priority. The assignment may be an original or notarized/certified copy.