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Competence and procedures for licensing of inventions under compulsory decisions

By
sblaw
-

The Science and Technology Ministry shall issue decisions on licensing of inventions based on the consideration of requests for licensing in the cases below after consulting opinions of the Science and Technology Ministry.

– The holder of exclusive right to use such invention fails to fulfill the obligations to use such invention

– A person who wishes to use the invention fails to reach an agreement with the holder of exclusive right to use such invention on the entry of an invention license contract in spite of his/her efforts made within a reasonable time for negotiation on satisfactory commercial price and conditions;

– The holder of exclusive right to use such invention is considered having performed anti-competition practices banned by competition law.

Ministries and ministerial-level agencies shall issue decisions on licensing of inventions in domains under their respective management in the cases after consulting opinions of the Science and Technology Ministry: the use of such invention is for public and non-commercial purposes or in service of national defense, security, disease prevention and treatment and nutrition for people or other urgent needs of the society

* Decisions on licensing of inventions must set out appropriate use scope and conditions according to the provisions of Article 146 of Intellctual property

* The state agency competent to decide on licensing of inventions shall have to promptly notify the holders of exclusive right to use such inventions of its decisions

* Decisions on licensing of inventions or on refusal of licensing of inventions may be subject to complaints or lawsuits according to the provisions of law

* The Government shall specify procedures for licensing of inventions defined in these cases

 

 

 

Compulsory licensing of inventions

By
sblaw
-
man wearing a suit sitting in a table showing a signboard with the text licensing written in it

In the following cases, the right to use an invention may be licensed to another organization or individual under a decision of the competent state agency without permission from the holder of exclusive right to use such invention:

– Where the use of such invention is for public and non-commercial purposes or in service of national defense, security, disease prevention and treatment and nutrition for people or other urgent needs of the society.

– Where the holder of exclusive right to use such invention fails to fulfill the obligations to use such invention provided for in Clause 1, Article 136  and Clause 5, Article 142 of Intellctual property  Law upon the expiration of a 4-year duration as from the date of filing the invention registration application and the expiration of a 3-year duration as from the date of granting the invention patent;

– Where a person who wishes to use the invention fails to reach an agreement with the holder of exclusive right to use such invention on the entry of an invention license contract in spite of his/her efforts made within a reasonable time for negotiation on satisfactory commercial price and conditions;

– Where the holder of exclusive right to use such invention is considered having performed anti- competition practices banned by competition law.

The holder of exclusive right to use an invention may request the termination of the use right when the bases for licensing provided above  no longer exist and are unlikely to recur, provided that such termination shall not be prejudicial to the invention licensee

Right of prior use of inventions

By
sblaw
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– Where a person has, before the publication date  of an invention registration application, used or prepared necessary conditions for use of an invention identical with the protected invention stated in such registration application but created independently (hereinafter referred to as the prior use right holder), then after a protection title is granted, such person shall be entitled to continue using such invention within the scope and volume of use or use preparations without having to obtain permission of or paying compensations to the owner of the protected invention.

The exercise of the right of prior users of inventions shall not be regarded as an infringement of the right of invention or industrial design owners.

– . Holders of prior use right to inventions must not assign such right to others, except where such right is assigned together with the transfer of business or production establishments which have used or are prepared to use the inventions  Prior use right holders must not expand the use scope and volume unless it is so permitted by invention owners.

Provisional rights to industrial designs

By
sblaw
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Single Red Document Folder among Many Blue on White Background 3D Illustration, Find Documents Concept

– Where an applicant for registration of an industrial design knows that such industrial design is being used by another person without prior use right for commercial purposes, the applicant may notify in writing the user of the filing of his/her application, clearly specifying the filing date and the date of application publication in the Official Gazette of Industrial Property so that the later shall terminate or continue such use

– Where the person notified of contents specified continues using industrial design as soon as an industrial design patent the owner of such  shall have the right to request the user of such industrial design to pay a compensation equivalent to the price for licensing of such  industrial design within the relevant scope and duration of use.

 

Provisional rights to inventions

By
sblaw
-

– Where an applicant for registration of an invention knows that such invention is being used by another person without prior use right for commercial purposes, the applicant may notify in writing the user of the filing of his/her application, clearly specifying the filing date and the date of application publication in the Official Gazette of Industrial Property so that the later shall terminate or continue such use

– Where the person notified of contents specified continues using such invention as soon as an invention patent shall have the right to request the user of such invention to pay a compensation equivalent to the price for licensing of such invention within the relevant scope and duration of use.

Acts of infringing upon the rights to trademark

By
sblaw
-

The following acts if being performed without the permission of mark owners, shall be regarded as  infringements of the rights to marks:

– Using signs identical with protected marks for goods or services identical with goods or services on the lists registered together with such marks;

– Using signs identical with protected marks for goods or services similar or related to those goods on services on the lists registered together with such marks, if such use is likely to cause confusion as to the origin of the goods or services;

– Using signs similar to protected marks for goods or services identical with, similar to or related to goods or services on the lists registered together with such marks, if such  use is likely to cause confusion as to the origin of the goods or services;

– Using signs identical with, or similar to, well-known marks, or signs in the form of translations or transcriptions of well-known marks for any goods or services, including those unidentical with, dissimilar or unrelated to goods or services on the lists of those bearing well-known marks, if such use is likely to cause confusion as to the origin of the goods or services or misleading impression as to the relationship between users of such signs and well-known mark owners.

Requirements on trademark registration applications

By
sblaw
-

1. Documents, samples, information identifying a mark registered for protection in a trade mark registration application include:

– A sample of the mark and a list of goods or services bearing the trade mark;

– Regulation on use of collective marks or regulation on use of certification trade mark.

2. The sample of the mark must be described in order to clarify elements of the trade mark and the comprehensive meaning of the trade mark, if any; where the mark consists of words or phrases of hieroglyphic languages, such words or phrases must be transcribed; where the trade mark consists of words or phrases in foreign languages, such words or phrases must be translated into Vietnamese.

3. Goods or services listed in a mark registration application must be classified into appropriate groups in accordance with the Classification List under the Nice Agreement on International Classification of Goods and Services for the purpose of mark registration, and published by the state management agency in charge of industrial property rights.

4. The regulation on use of collective marks consists of the following principal contents:

– Name, address, grounds of establishment and operations of the collective organization being the owner of the trade mark;

– Criteria for becoming a member of the collective organization;

– List of organizations and individuals permitted to use the trade mark;

–  Conditions for use of the trade mark;

– Measures for handling acts violating the regulation on use of trade mark.

5. The regulation on use of certification trade mark consists of the following principal contents:

– The organization or individual being the trade mark owner;

– Conditions for using the trade mark;

– Characteristics of goods or services certified by the trade mark;

– Methods of evaluating characteristics of goods or services and methods of controlling the use of the

trade mark;

e/ Expenses to be paid by the mark user for the certification and protection of the mark, if any

Requirements on industrial design registration applications

By
sblaw
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1. Documents identifying an industrial design registered for protection in an industrial design registration application include a description and a set of photos or drawings of such industrial design. The industrial design description consists of a section of description and a scope of protection of such industrial design.

2. The section of description of an industrial design must satisfy the following conditions:

a/ Fully disclosing all features expressing the nature of the industrial design and clearly identifying features which are new, different from the least different known industrial design, and consistent with the set of photos or drawings;

b/ Where the industrial design registration application consists of variants, the section of description must fully show these variants and clearly identify distinctions between the principal variant and other variants;

c/ Where the industrial design stated in the registration application is that of a set of products, the section of description must fully show features of each product of the set.

3. The scope of protection of industrial designs must clearly define features which need to be protected, including features which are new and different from similar known industrial designs.

4. The set of photos and drawings must fully define features of the industrial design.

Requirements on invention registration applications

By
sblaw
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1. Documents identifying an invention registered for protection in an invention registration application shall include a description of the invention and an abstract of the invention. The invention description consists of the description section and the scope of protection of the invention.

2. The description of invention must satisfy the following conditions:

a/ Fully and clearly disclosing the nature of the invention to the extent that such invention may be realized by a person with average knowledge in the art;

b/ Briefly explaining the accompanied drawings, if it  is required to further clarify the nature of the invention;

c/ Clarifying the novelty, inventive step and susceptibility of industrial application of the invention.

3. The scope of protection of inventions shall be expressed in the form of a combination of technical specifications which are necessary and sufficient to identify the scope of the rights to such inventions, and compatible with the description of inventions and drawings.

4. Abstracts of inventions must disclose principal features of nature of such inventions.

Characters of invention

By
sblaw
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1. Novelty

– An invention shall be considered novel if it has not yet been publicly disclosed through use or by means of a written description or any other form, inside or outside the country, before the filing date or the priority date, as applicable, of the invention registration application.

– An invention shall be considered having not yet been publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

– An invention shall not be considered having lost its novelty if it is published in the following cases, provided that the invention registration application is filed within 6 months from the date of publication:

* It is published by another person without permission of the person having the right to register it

* It is published in the form of a scientific presentation by the person having the right to register it

* It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it

2. creative

An invention shall be considered involving an inventive step if, based on technical solutions already publicly disclosed through use or by means of a  written description or any other form, inside or outside the country, prior to the filing date or the priority date, as applicable, of the invention registration application, it constitutes an inventive progress and cannot be easily created by a person with average knowledge in the art.

3. susceptible of industrial

An invention shall be considered susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process that is the subject mater of the invention, and to achieve stable results.

Subject matters are not protected as invention

By
sblaw
-

–  Scientific discoveries or theories, mathematical methods;

– Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business; computer programs;

– Presentations of information;

– Solutions of aesthetical characteristics only;

– Plant varieties, animal breeds;

– Proesses of plant or animal production which are  principally of biological nature other than microbiological ones;

– Human and animal disease prevention, diagnostic and treatment methods.

Trademark international applications

By
sblaw
-

1. “Madrid applications” are referred to the applications for international registration of marks filed under the Madrid Agreement or the Madrid Protocol, including:

a/ Applications originating from other member countries of the Madrid Agreement or the Madrid Protocol for protection of marks in Vietnam (hereinafter referred to as Madrid applications designating Vietnam);

b/ Applications filed in Vietnam for protection of marks in other member countries of the Madrid Agreement or the Madrid Protocol (hereinafter referred to as Madrid applications originating from Vietnam).

2. After being announced by the International Office of the World Intellectual Property Organization (WIPO), a Madrid application designating Vietnam shall go through the content examination like an application for mark registration filed according to national formalities.

For a mark accepted for protection, the state management agency in charge of industrial property shall issue and publish a decision on acceptance for protection of an internationally registered mark in the Industrial Property Official Gazette. At the request of an internationally registered mark owner, the state management agency in charge of industrial property issues a certificate of protection in Vietnam of internationally registered mark.

3. Vietnamese organizations or individuals may exercise the right to international registration of marks under the Madrid Agreement or the Madrid Protocol according to the following regulations:

a/ To file applications under the Madrid Agreement, if the protection is claimed in a member country of the Madrid Agreement, provided that they have been granted mark protection titles in Vietnam;

b/ To file applications under the Madrid Protocol, if the protection is claimed in a country which is a member of the Madrid Protocol but not a member of the Madrid Agreement, provided that they have filed applications for mark registration in Vietnam.

4. The state management agency in charge of industrial property receives Madrid applications originating from Vietnam.

5. The Science and Technology Ministry specifies the form and contents of, the order and procedures for processing of Madrid applications.

Use of an invention

By
sblaw
-

– Manufacturing the protected product;

– Applying the protected process;

– Exploiting utilities of the protected product or the product manufactured under the protected process;

– Circulating, advertising, offering, stocking for circulation the product of protection or the product manufactured under the protected process;

– Importing the product mentioned the product manufactured under the protected process;

 

Use of an industrial design

By
sblaw
-

Use of an industrial design is regulated by Vietnam IP law as follows:

– Manufacturing products with appearance embodying the protected industrial design;

– Circulating, advertising, offering and stocking for circulation products with appearance embodying the protected industrial design;

– Importing products mentioned with appearance embodying the protected industrial design;

Obligation to use inventions

By
sblaw
-

Owners of inventions are obliged to manufacture protected products or apply protected processes to satisfy the requirements of national defense, security, disease prevention and treatment and nutrition for the people or to meet other social urgent needs.

When there arise the  needs mentioned in this Clause but invention owners fail to perform such obligation, the competent state agency may license such inventions to others without permission of invention owners.

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