Introduction Currently, under Vietnam’s Law on Intellectual Property of 2005, as amended in 2009 and 2019 (“IP Law”), secret prior art cannot be used in evaluating patent applications. However, an approach to evaluate secret prior art has been included, for the first time, in the draft amendment of the IP Law. Below is our discussion of this interesting topic. Recognition in Other Jurisdictions Secret prior art is the name given to prior art that, at the time of filing of a new patent application, was not discoverable by the new applicant or not publicly available. It exists as a filed but unpublished application, unavailable to the public until publication. Until that point, only the applicants and the patent examiners of the unpublished application know of its existence. Even though it is not discoverable or available to the public, secret prior art can still be used as a bar for novelty in many jurisdictions. Secret prior art is not limited to situations in which the first applicant and the new applicant are different people; secret prior art applies regardless. There is, however, a domestic limitation: Applications filed and not yet published in a foreign country are not considered to be secret prior art. When the applicants are different people, the new applicant has no way of discovering the secret prior art that exists as a filed and unpublished application of the first applicant. Regardless of the completeness of the patent search, the previously filed and unpublished application cannot be discovered. At the time of filing, the new applicant’s invention would seem novel. Later, it would be discovered that the application was actually filed after another application for the same invention, barring patentability. This creates confusion and unfairness among multiple applicants. One applicant can also file two separate applications at different

As Vietnam continues to fight the latest wave of the Covid-19 pandemic with strict social distancing measures, the Intellectual Property Office of Vietnam (IP Office) has issued Notice No. 7581/TB-SHTT dated August 2, 2021 (Notice 7581), extending certain deadlines for IP applicants. The contents of Notice 7581 are similar to those found in Notice 5277 issued in March 2020 during the first wave of the pandemic. Specifically, Notice 7581 reads as follows: All procedures related to procedures to establish industrial property rights (priority claims, supplementation of documents, responses to the IP Office’s decisions/notifications, renewal and extension of the validity of protection titles, payment of fees and charges, and filing of appeal petitions) falling due during the period from June 30, 2021, to the end of August 31, 2021, will automatically be extended to the end of September 30, 2021. For other cases, if an applicant is still affected by the Covid-19 epidemic with regard to the implementation of its rights and obligations in the procedures for establishing rights to industrial property objects at the IP Office, such applicant may request [the IP Office] to apply the clauses on objective obstacles and force majeure as set out in Points 9.4 and 9.5 of Circular No. 01/2007/TT-BKHCN, as amended and supplemented by Circular No. 16/2016/TT-BKHCN. Observations on the Content of Notice 7581 As with last year’s Notice 5277, it is worth noting that the wording of Notice 7581 covers only the procedures to “establish industrial property rights,” rather than all aspects of industrial property rights. Further, it could be understood that it provides a closed list of industrial property procedures that can enjoy this grace period, and that the deadline extensions would apply only to the specific items listed. Thus, it is uncertain if the deadline extension to September 30, 2021,

A 13-year extension of the least developed country transition period for applying the Agreement on Trade-Related Aspects of Intellectual Property Rights has long-term implications for Southeast Asia’s least developed nations.

To enforce more rigorous control of cross-border advertising activities, the Vietnamese government issued Decree No. 70/2021/ND-CP dated July 20, 2021 (Decree 70), amending and supplementing provisions of Decree No. 181/2013/ND-CP dated November 14, 2013, elaborating on some articles of the Law on Advertising. Decree 70 will take effect on September 15, 2021. According to the Deputy Director of the Authority of Broadcasting and Electronic Information, Decree 70 will allow better control over cross-border advertisement on platforms such as Facebook or YouTube. To that end, Decree 70 stipulates new obligations for these providers while also consolidating executive authority over cross-border advertising activities under the Ministry of Information and Communications (MIC). Revised Obligations for Cross-Border Advertising Services Significantly, Decree 70 overhauls Article 13, which provides the definitions and obligations for cross-border advertising service providers. Accordingly, cross-border advertising services are explained as the utilization of websites hosted outside Vietnam to provide ads targeted at Vietnamese consumers and obtain revenue in Vietnam. Notably, Article 13 defines such websites as a “single or multi-website system …  providing users with services for storage, provision, use, search, or exchange of information, sound or image sharing, forum creation, or live chat to supply advertising services.” This would effectively encompass many types of online environments, specifically social network sites, such as Facebook. In addition, more entities will be taxed on cross-border advertising revenue under Article 13, including not only service providers but also both domestic and overseas advertisers. Under Decree 70, cross-border advertising services must comply with Vietnam’s cybersecurity and intellectual property laws in addition to the Law on Advertising. Decree 70 requires foreign providers of cross-border advertising services to supply the MIC with direct contact information 15 days before commencing cross-border advertising activities in Vietnam. Domestic advertising service providers that cooperate with foreign entities to provide cross-border