Distinguishing Between Patents and Utility Solutions: Expert Insights from SBLAW

“Currently, many individuals and enterprises mistakenly equate patents with utility solutions. This is a common misconception in Intellectual Property Law, which can easily lead to incorrect protection strategies and regrettable losses of commercial exclusivity.” – Stated by the Executive Attorney of SBLAW Law Firm during an interview on the Thương hiệu 24h television program.

To provide readers with a precise and comprehensive understanding, Thuonghieu24h reporter conducted an in-depth interview with SBLAW’s Master of Laws and IP Attorney.

1. Legal Definitions of Patents and Utility Solutions

Reporter: Sir, could you clarify how the legal nature of patents and utility solutions is defined under current regulations?

IP Attorney: Patents and utility solutions are two overlapping terms in the Intellectual Property domain. Fundamentally, an invention is a technical solution in the form of a product or a process intended to solve a specific problem by applying natural laws.

Under the Intellectual Property Law of Vietnam, these solutions are divided into two distinct forms of protection:

• Patent for Invention: Granted to technical solutions that are groundbreaking, entirely new, and possess a high level of intellect (inventive step) that a person with ordinary skill in the art could not easily deduce.

• Patent for Utility Solution (Utility Model): Granted to technical improvements based on existing technologies or inventions, aiming to enhance functionality, efficiency, or practical utility in daily life.

2. Technical Comparison: Patent for Invention vs. Utility Solution

Reporter: What are the core similarities and differences between these two protection mechanisms that businesses must be aware of?

IP Attorney: The only similarity is that both must be technical solutions. However, from a legal and statutory requirement standpoint, they differ significantly:

Strategic Advice from SBLAW: If your technical solution is highly practical but does not possess a highly advanced technological breakthrough to clear the “inventive step” hurdle, you should proactively file it as a Utility Solution. This drastically increases the probability of passing the substantive examination phase at the IP Office of Vietnam and expedites the timeline to grant.

3. Who Holds the Right to Register Patents and Utility Solutions?

Reporter: Attorney, who legally holds the right to file applications for these technical solutions under Vietnamese law?

IP Attorney: Pursuant to Article 86 of the Intellectual Property Law, the right to register a patent or utility solution is explicitly designated to the following entities:

1. The Inventor: The individual who directly creates the technical solution through their own creative labor, intellect, and financial resources.

2. The Investor / Employer: Organizations or individuals who invest funds, material means, and facilities for the inventor through job assignments or labor contracts (unless otherwise agreed upon in writing).

3. State-Funded Projects:

   • If 100% of the budget is funded by the State, the right belongs to the organization assigned by the State to manage the task.

   • If the State contributes a partial budget or collaborates in the research, the registration right will correspond proportionally to the state capital ratio as specified in the joint R&D contract.

4. Co-owners: Where an invention is co-created or co-invested by multiple independent parties, the application can only be filed with the absolute consensus of all parties involved.

Crucial Note: Any entity holding the registration right has the legal authority to assign or transfer that right to a third party via a written contract or inheritance, even if the application is currently pending examination at the IP office.

Reporter: Thank you, Attorney, for this incredibly valuable conversation!