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October 3, 2019

Vietnam Joins the Hague Agreement and Prepares to Amend Its IP Law

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On October 1, 2019, Vietnam filed an instrument of accession to join the Hague Agreement Concerning the International Registration of Industrial Designs (Geneva Act of July 2, 1999). The Hague Agreement will officially take effect in Vietnam on January 1, 2020, three months after the filing date of the instrument.

Certain provisions of Vietnam’s Law on Intellectual Property (IP Law) and its guiding legislation will need to be amended or updated to be compatible with the Hague Agreement, as well as other recently joined or signed treaties like the EU-Vietnam Free Trade Agreement (EVFTA). While waiting for these amendments, Vietnam has announced that the provisions of the Hague Agreement will be directly applied for both international design applications designating Vietnam and international design applications originating from Vietnam.

In mid-September the Ministry of Science and Technology (MOST) also posted for public comments a draft proposal for amendment and supplementation of the IP Law, including some provisions that will facilitate applicants of international applications under the Hague Agreement. It is expected that the draft amended IP Law will be finalized and submitted to the National Assembly for approval in 2021.

Among the changes proposed in the most recent draft are the following matters related to patent and design.

PATENT

1. Assessment of novelty

Under current provisions, “an invention shall be considered novel if it is not publicly disclosed by use, by means of a written description, or in any other form inside or outside the country before the filing date of the patent application for invention or before the priority date if the application has a priority right.”

Accordingly, the scope of documents for assessment of novelty does not include a patent application for invention with an earlier filing date but published on or after the filing date of the newer application, because it has not yet been “publicly disclosed.” The draft proposal, following the practice of many other countries, includes this document as a basis for assessment of novelty.

2. Security control procedures

The issue of security control (first filing/foreign filing license) is stipulated in Decree No. 122/2010/ND-CP. The MOST proposes to move this provision into the IP Law and limit security control to technical fields affecting national security and defense.

However, in accordance with the current provisions, to file an application outside of Vietnam, an applicant first has to wait until six months after filing his/her application in Vietnam; if there is no notification from the state authorities regarding national defense and security during that six-month period, the application can be filed abroad. There is no mechanism in the draft proposal for a license to file applications abroad any earlier. In addition, many terms in the current provisions have not been concretized. It is hoped that such issues will be addressed and clarified in the final version of the amended law.

3. Grounds for patent invalidation

Currently, there are only two grounds for invalidation of a patent:

(i) The applicant had no right to file the application, or

(ii) The application did not meet requirements of novelty, inventive step, or industrial applicability.

The MOST proposes supplementing three additional grounds:

(iii) The claim set extends beyond the disclosure in the description as originally filed;

(iv) The specification does not disclose sufficiently to the extent that such invention can be carried out by a person skilled in the art; and

(v) A patent application for invention relating to a genetic resource or traditional knowledge fails to disclose or incorrectly discloses the genetic resource or traditional knowledge in the application.

These additional grounds are common in other countries, though the wording of ground (iii) would be more in line with international standards if it was changed to “the subject-matter of the patent extends beyond the content of the application as originally filed.”

INDUSTRIAL DESIGN

1. Specification of industrial design application

Currently, a specification is a mandatory document for an industrial design application. These specifications have numerous requirements as to their contents, making it difficult for applicants to prepare them and also requiring great efforts from the Intellectual Property Office to issue office actions objecting to specifications that fail to meet the requirements. Meanwhile, these specifications do not have much actual effect in determining the design. It is generally understood that the protection scope of a design is determined by the drawings, and there are still questions about whether a specification is truly relevant to the protection scope. The MOST proposes to amend the law to no longer require a specification to be submitted with a design application.

In addition, the MOST also proposes including a provision allowing applicants to submit a description as a reference. This would make it easier to determine the design, while clearly stating that such description does not serve as a basis for determining the protection scope of the design.

2. Postponement of publication of industrial design application

Sometimes an applicant will wish to postpone the publication of an industrial design application, to avoid the design being copied by a third party before the product is actually put into production. Under current provisions, such postponement is not allowed. The MOST proposes to amend the law to allow the postponement of publication. This will facilitate applicants who file an international application designating Vietnam under the Hague Agreement and wish to postpone its publication.

3. Assessment of novelty and originality for industrial design of component

The EU-Vietnam Free Trade Agreement (EVFTA) signed on June 30, 2019, contains the following provisions on the criteria for assessing the novelty and originality of an industrial design of a component of a complex product:

(i) The component must remain visible during normal use of the product;

(ii) The visible features must meet the requirements of novelty and originality; and

(iii) “Visible” means “seen by user (consumer)” of the product.

As these provisions are not directly specified in the current law of Vietnam, the MOST proposes to include them in the amended law.

POSSIBLE ADDITIONAL AMENDMENTS

Though the draft amended IP Law includes a number of positive advances, some issues remain conspicuously absent, including the following:

Patents for use inventions – As a member of the WTO, Vietnam provides patent protection for pharmaceutical inventions. However, use inventions, such as medical use inventions, are controversially not protected. The MOST admits that the protection of use inventions needs to be considered; however, no proposal to amend the law has yet been raised. If use inventions are not protected, this could check the development of the pharmaceutical sector in Vietnam, especially for Vietnamese companies.

Protection of partial designs – The current provisions require seven basic views to be filed for a design application, and partial designs (designs of parts of a product which can only be separated from the product by breaking the product) are not patentable. Accordingly, design protection in Vietnam is relatively narrow. The protection of partial designs would make Vietnamese law more compatible with the Hague Agreement.

It is hoped that, following the public comments, additional provisions addressing these issues and others will be included in the official proposal submitted to the government.

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