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Legislative Implementation of Flexibilities - Viet Nam

Title:Articles 109, 113 and 114 of the Law on Intellectual Property No. 50/2005/QH11 of 29/11/2005 as last amended by Order No. 12/2009/L-CTN of 29/06/2009
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Article 109

Formal examination of industrial property registration applications

1. Industrial property registration applications shall be subject to formal examination for evaluating their validity.

2. An industrial property registration application shall be considered invalid in the following cases:

a/ It does not fulfill the formal requirements;

b/ The subject matter stated in the application is ineligible for protection;

c/ The applicant does not have the registration right, including where the registration right belongs to more than one organizations or individuals but one or several of them do not agree with the filing;

d/ It is filed in contravention of regulations on the filing mode provided for in Article 89 of this Law;

e/ The applicant fails to pay fees and charges.

3. For industrial property registration applications falling into the cases specified in Clause 2 of this Article, the state management agency in charge of industrial property rights shall carry out the following procedures:

a/ Issuing a notice of intended refusal to accept valid applications, clearly stating reasons and setting a time limit for the applicant to correct errors or to object such intended refusal;

b/ Issuing a notice of refusal to accept valid applications if the applicant fails to correct errors, improperly corrects errors or fails to make a justifiable objection to such intended refusal mentioned at Point a of this Clause;

c/ Issuing a notice of refusal to grant a certificate of registered semiconductor integrated circuit layout-design in case of an integrated circuit registration application;

d/ Carrying out procedures specified in Clause 4 of this Article if the applicant properly corrects errors or makes justifiable objection to the intended refusal to accept valid application mentioned at Point a of this Clause.

4. For industrial property registration applications not falling into the cases specified in Clause 2 of this Article, or in the cases specified at Point d, Clause 3 of this Article, the state management agency in charge of industrial property rights shall issue notices of acceptance of valid applications or carry out procedures for granting protection titles and recording them in the national register of industrial property as provided for in Article 118 of this Law, for layout-design registration applications.

5. Mark registration applications rejected according to the provisions of Clause 3 of this Article shall be considered having not been filed, except where they serve as grounds for claims for priority right.

Article 113

Request for substantive examination of invention registration applications

1. Within 42 months after the filing date or the priority date, as applicable, an applicant or any third party may request the concerned state management agency in charge of industrial property rights to substantively examine the application, provided that the substantive examination fee is paid.

2. The time limit for making request for substantive examination of an invention registration application involving a request for a utility solution patent shall be 36 months counting from the filing date or the priority date, as applicable.

3. Where no request for substantive examination is filed within the time limit specified in Clauses 1 and 2 of this Article, the invention registration application shall be considered having been withdrawn at the expiration of that time limit.

Article 114

Substantive examination of industrial property registration applications

1. The following industrial property registration applications shall be substantively examined for evaluation of the eligibility for grant of protection titles for subject matters stated in such applications under protection conditions and for determination of the respective scope of protection:

a/ Invention registration applications which have already been accepted as being valid and involve requests for substantive examination filed according to regulations;

b/ Industrial design registration applications, mark registration applications or geographical indication registration applications which have been accepted as being valid.

2. Layout-design registration applications shall not be substantively examined.

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