Vietnam – Patent examination of secret inventions guided

The Intellectual Property Office of Vietnam (IPVN) issued Guidelines for receipt and processing of patent applications for secret inventions on 31 December 2021. Secret inventions are understood as inventions that serve the national defense and security or are essential for the development of social – economics. They belong to the state secrets, therefore, only state competent authorities can determine whether an invention is a secret one or not.

A patent application for secret invention can still be filed, examined, granted, and so on, (but not published); and when the secret is declassified, it will become a normal invention. Like other state secrets, a secret patent application/secret patent will be declassified in a prescribed time. Specifically, a secret patent application/secret patent will automatically be declassified after a duration of classification which is 10 years (if the duration of classification is not extended) or when it is no longer on the list of state secrets; or it will be declassified under a decision of a competent authority for national interests, economic development, international cooperation, etc.

Because of the “secrecy”, the common Guidelines for patent examination will not be applicable, but the IPVN issued the said specific Guidelines with notable contents of which may include:

– Related dossiers, documents, and official communications in an application shall be transmitted, handled, and managed in accordance with regulations of protection of state secrets;

– A patent application for secret invention must be filed in paper form only;

– Such an application shall be subject to substantive examination within 18 months from the date on which the formality of the application is accepted by the IPVN (if the request for examination is filed before the date of formality acceptance) or from the filing date of the request for examination (if the request is filed after the date of formality acceptance); and

– There is no appeal procedure for the applications.

The Guidelines also indicate cases where a secret patent application/secret patent is declassified, namely:

– After finishing the examination of a secret patent application, the IPVN determines that the contents relating to the invention have been disclosed; or

– When other competent agencies/authorities (the Ministry of Public Security, the Ministry of National Defense, etc.) declassify the secret patent application/secret patent.

The Guidelines also provide guidance subsequent to the declassification of a secret patent application/secret patent:

– The filing date of a declassified secret patent application is the filing date of the original secret patent application, and the declassified secret patent application continues to be processed as a normal patent application;

– The granting date of a declassified secret patent is the granting date of the original secret patent, and the declassified secret patent continues to be processed as a normal patent; and

– A declassified secret patent application/declassified secret patent is published as a normal patent application/normal patent.

The foregoing guidelines are quite clear; unfortunately, the legal documents are silent on a procedure for an applicant to file a petition with competent authorities to request them to determine whether their invention is a secret one, and then, file a patent application as guided above.

The Government is taking steps to amend Decree No. 103/2006/ND-CP. It is scheduled that the amended Decree will take effect around January 2023. Hopefully, the procedure for filing a petition will be introduced to the amended Decree.

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By Hoang Thi Luyen and Hoang Thi Phuong