Vietnam – The Budapest Treaty on the international recognition of the deposit of microorganisms for the purposes of patent procedure has come into effect

The Budapest Treaty officially took effect in Vietnam on 1 June 2021, as notified by the Ministry of Foreign Affairs. Also, according to Government resolution 10/NQ-CP dated 29 January 2021, the provisions of the Treaty will be applied directly in Vietnam. Under Vietnamese law, when joining an international treaty, Vietnam will decide to apply directly all or a number of the provisions of the treaty, instead of issuing a domestic law or amending an existing domestic law to comply with the treaty, if those provisions of the treaty are clear and detailed enough. Accordingly, all the provisions of the Budapest Treaty will be used as the provisions of a domestic law under said resolution.

Under Circular 01/2007/BKHCN, for inventions involving biological materials which are not describable or cannot be described fully to the extent a person skilled in the biotechnology field can carry out the invention, a deposit of the biological material with a competent authority is required. Also, such a competent authority must be designated or recognized by the Ministry of Science and Technology. However, there has not yet been an official list of such authorities issued. By joining the Budapest Treaty, such patent applicants now can evidently deposit such materials with international depositary authorities (IDAs) of the Treaty in preparing their patent applications.

As noted in WIPO documents, the main feature of the Budapest Treaty is that a Contracting State which allows or requires the deposit of microorganisms for the purposes of patent procedure must recognize, for such purposes, the deposit of a microorganism with any IDA, irrespective of whether such authority is on or outside the territory of the said State. In other words, one deposit, with one IDA, will suffice for the purposes of patent procedure before the national patent offices of all of the Contracting States of the Treaty.

With the above advantages of the Treaty, this accession is really a good news and is very welcomed by patent applicants. Vietnam is a member of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Under the CPTPP, Vietnam will have to accede to the Budapest Treaty and this is one of the reasons for this accession.

As a current issue, there has been a discussion in Vietnam – whether Vietnam should establish an IDA under the Budapest Treaty – this is not an obligation under the Treaty, but should be considered. Almost of Vietnamese experts believe that this issue must be researched comprehensively and fully.

Nguyen Duc Thang & Do Tuyet Nhung

Patent Department – INVESTIP IP LAW FIRM