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THE
COUNCIL OF MINISTERS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom – Happiness
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No.
200-HDBT
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Hanoi,
December 28, 1988
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DECREE
ON UTILITY SOLUTION
(Promulgated by the Government Decree No. 200-HDBT of December 28, 1988 as
amended by Government Decree No. 84-HDBT of March 20, 1990 of the Council of
Minister)
Chapter I
GENERAL PROVISIONS
Section 1:
Extent of
Application
(1) This Ordinance applies to every
persons or legal entity to encourage the making, the quick application on a
large scale of utility solution to production so as to contribute to the
promotion of the economic, social development.
(2) Foreign persons and legal
entities enjoy the rights provided for in this Ordinance on the principle of
reciprocity pursuant to the legislation of the Socialist Republic of Vietnam
and international treaties to which Vietnam
is a party.
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Criteria
of patent ability of Utility Solution
(1) "Utility solution"
means technical solution which is new in comparison with the available
technology in Vietnam,
and practically applicable under the prevailing economic, technical conditions.
(2) A solution shall be
considered new, if prior to the priority date of the application for protection
(as provided in Section 6), it has been neither publicly used in Vietnam, nor
disclosed to the public in Vietnam in any form (printed matters, audio or video
magnetic tapes, exhibition, etc.) in such a manner that the realization thereof
could be made nor identical with any of solution described in applications for
protection of utility solution or invention, filed with the National Office on
Inventions of The State Committee for Science and Technology, having an earlier
priority date.
The novelty or a solution shall
not be considered destroyed if the solution has been disclosed by other person,
without the authorization of the person to whom it belonged, within a period of
six months preceding the filing date of the application for protection of
utility solution.
(3) The subject matter of a
utility solution may be a device,a process or substance.
Section 3:
Exclusion
from Protection of Utility Solutions
The following technical
solutions shall not be considered as utility solution:
a- a solution which may be
easily made by a person skilled in the art which it pertains;
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Section 4:
Exclusion
of Subject Matters from Protection
The following subject matters be
excluded from the protection provided for in this Ordinance:
a- methods and systems for
economic management, administration (e.g. planning, financing, supplying,
statistics, etc.);
b- ideas, scientific principles
and discoveries computer programs, mathematical models, graphics and the like;
c- linguistic systems (e.g.
grammatical systems, artificial languages, cipher, writing, pronunciation,
etc.), information systems, classification systems, documentation compiling
systems;
d- methods and systems for education,
training, nutrition;
e- training methods for domestic
animals;
f- designs and schemes for
planning of constructions, projects for regional planning (population area,
cultivating lands, parks, etc.)
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h- solutions concerning only the
shape of articles, bearing no technical character;
i- microorganisms, plant
varieties, animal breads;
j- methods for the prevention, diagnosis,
treatment of diseases in human beings.
Section 5:
Conversion
of Patent Application into Application for Protection of Utility Solution
Any patent application filed
with the National Office on Inventions of the State Committee for Science and
Technology may be converted into an application for protection of utility
solution.
Section 6:
Right of
Priority
The right of priority of an
application for protection of utility solution (hereafter referred to as
priority right) shall be determined by the priority date of the application.
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a- the date of the filing of the
application with the National Office on Inventions; or
b- the filing date of the
earliest application filed in any country-party to the Paris Convention for the
Protection in Industrial Property if the application is filed with the National
Office on Inventions of the State Committee for Science and Technology within
Article 1 period of twelve months counted from that date; or
c- the date of the display of
the solution on an official international exhibition held on the territory of
any country-party to the Paris Convention for the Protection in Industrial
Property if the application if filed with the National Office on Inventions of
the State Committee for Science and Technology within a period of six months
counted from that date; or
d- the priority date of the
patent application if application converted therefore as provided in Section 5.
Section 7:
Right to
File Application for Protection of Utility Solution
(1) The right to file
application for protection of the utility solution shall belong to the
person(s) who has made the utility solution by his creative work (hereinafter
referred to as author) or to his successor in title.
(2) Where a person has made, in
execution of a commission within the filed of activity, or with the material,
manpower assistance of the employing organization, unit.
The right to file the
application, however, shall belong to the author if, within a period of two
months following the author's report on the fact that the solution could be
protectable as a utility solution, the organization, unit has not filed the
application.
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(4) When a utility solution has
been made in an organization, unit applying employment contract, the right to
file the application shall belong, to the employing organization, unit, if the
contract has not provided otherwise.
Section 8:
Protection
of Utility Solution Abroad
In case a utility solution has
been made in Vietnam except the case referred to in Section 28 of this Ordinance,
the filing of the application for protection abroad may only be authorized
after the application for protection of that solution has been filed in Vietnam
and the applicant has received the notification of acceptance of the
application issued by the National Office on Inventions.
Section 9:
Responsibility
of Authority Granting Title of Protection
(1) The National Office on
Inventions of the State Committee for Science and Technology is the authority
responsible for the receipt and examination of applications, for the grant of
titles of protection of utility solution and for the supervision on the
protection within the term of validity of titles or protection according to the
provision of this Ordinance.
(2) Examiners, co-examiners and
other persons, among the staff of the National Office on Inventions, who deal
with the applications for protection of utility solutions shall the obligation
to keep the content of the applications secret until the publication of the
utility solutions in the Gazette issued by the National Office on Inventions of
the State Committee for Science and Technology. Matters which are published
neither in the Gazette nor in descriptions of utility solutions shall be kept
in top secret.
Any infringement of regulations
for keeping secret shall be proceeded against by the employing organization,
unit pursuant to administrative regulations. Grave infringements will be sued
by law.
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Organization,
Management, Development of Activities Relating to Utility Solutions
(1) The general provisions laid
down by the State in respect of the organization, management and development of
industrial property activities shall apply to activities relating to utility
solutions.
(2) The provisions in force for
encouragement of innovators, investors shall apply by analogy to authors of
utility solutions, their assistants and persons engaged in the first
application of utility solutions.
Chapter II
PROTECTION OF RIGHTS TO
UTILITY SOLUTION
Part A.
RIGHTS AND OBLIGATIONS RELATING TO UTILITY SOLUTIONS
Section 11:
Establishment
of Right
(1) The legal protection of the
utility solution shall take effect from the date of the grant of the patent for
utility solution by the State.
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(3) The term of validity of a
patent for utility solution shall be six years counted from the priority date
of the application.
(4) The scope of the protection
of utility solution shall be determined by claims.
Section 12:
Exclusive
Right to Work Utility Solution
(1) Exclusive right to work
utility solution means the right to perform exclusively acts relating to the
utility solution for productive, commercial purposes.
(2) The owner of title may
assign the right to work utility solution, the ownership right of the utility
solution to other person or organization, unit.
The assignment of the right to
work utility solution (license contract) or the ownership right of the utility
solution in respect of the protected utility solution shall be registered with
the National
Office on Inventions under the
State Committee for Science and Technology and shall be published in the
Gazette issued by the National Office on Inventions under the State Committee
for Science and Technology.
Section 13:
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(1) The author of the utility
solution shall be named as such in the patent for utility solution and in other
documents relating to that utility solution.
(2) Within term of validity of
the patent for utility solution, the author shall have the right to a payment
of royalty due by the owner of title, which shall not be less than eight
percent of the profit derived the working of the utility solution. In case of
the assignment of the right to work utility solution, the amount obtained by
the sale of the license deducted by relating expenses shall be considered as
profit.
The amount of royalty due to the
author shall be paid within two months following the end of application year or
the date of receiving the payment due to the sale of the license.
(3) In case of a utility
solution of great economic, technical value, the author may be awarded the
honor title and National Scientific - Technical Prize by the State.
Section 14:
Obligation
for Application to Production
The owner of title and the
assignee of the right to work utility solution shall have the obligation to
apply the utility solution to production in Vietnam.
Section 15:
Non-Voluntary
License
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(a) to the person who, or
organization, unit which made such request if, within a period of three years
following the grant of the patent for utility solution, the utility solution
has not been applied to production on the territory of Vietnam or has been
applied insufficiently for the social needs.
(b) to the organization, unit
proposed by the head of ministerial rank organizations, people's committees of
provinces or cities subordinated to the Central Government in accordance with
the government sectoral and Provincial plans for the application of results of
research projects in case the utility solution has been made in execution of
scientific, technical research projects financed by the State.
(c) to the organization, unit
proposed by the Minister concerned in case the utility solution has a special
use for national defense, security or public health or foodstuff services.
(2) The request for the grant of
the non-voluntary license must contain the proof of the fact that the
requesting party has capability conditions to apply the utility solution and
that the owner of title
has refused to assign the right
to work utility solution.
(3) The beneficiary of the
non-voluntary license shall not be authorized to assign the right to work
utility solution to other person or organization, unit and shall have the
obligation to pay the owner of title a reasonable amount on the basis of
agreement with the later. In case no agreement could be reached, the parties
concerned may apply to the court for the settlement of the matter.
Section 16:
Acts
Deemed Not To Be Infringements of Exclusive Right to Work Utility Solution
The following acts shall not be
deemed to be infringements of the exclusive right to work utility solution of
the owner of title:
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the non-voluntary license;
(b) continuing to use, without
enlarging the extent of application, Article 1 solution identical with the
utility solution claimed in the application filed by other person or
organization, unit if, prior to the priority date of the application, that
solution has been worked or the serious preparation for working it has been
made;
(c) using the utility solution
merely for the purpose of scientific research;
(d) using the utility solution
on foreign transportation means which, in transit or temporarily, are on the
territory of the Socialist Republic of Vietnam provided that the utility
solution is used only for maintaining the operation of the said means;
(e) using the utility solution
for personal needs, not for commercial purposes.
Section 17:
Maintenance
of Validity, lapse of Patent for Utility Solution
(1) For the purpose of
maintaining the validity of the patent for utility solution, the owner of title
shall have the obligation to pay the prescribed annual fee.
(2) A patent for utility
solution shall lapse before the expiration of the term of validity:
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- the owner of tile submits the
declaration for the surrender of the legal protection.
Part B.
PROTECTION OF RIGHTS RELATING TO UTILITY SOLUTIONS
Section 18:
Proceeding
for Infringement Relating to Exclusive Right to Work Utility Solution
(1) Any of the following acts
except the cases referred to in Section 16 if performed, without the
authorization of the owner of title, shall be deemed to be the infringement of
the exclusive right to work utility solution of the owner of title;
(a) producing, offering for
sale, selling, using, importing a product as subject matter of the protected
utility solution or warehousing the said product for sale or use;
(b) using a protected process
for manufacturing, producing product or offering for use of said process on the
territory of Vietnam;
(c) offering for sale, selling, using,
importing products obtained directly by the protected process or warehousing
the said products for sale or use.
(2) Any infringement of the
right to work utility solution of the owner of title shall be proceeded
against. The infringing person shall have the obligation to discontinue the
infringing acts and to indemnify the owner of title for damages, to bear other
penalty provided by law according to the extent of infringements.
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Settlement
of Appeal Against Payment of Royalty
In case the owner of the patent
for utility solution does not the royalty due to the author as provided in
Section 13 of this Ordinance, the author or his successor in title shall have
the right to appeal to the court of competent jurisdiction.
Chapter III
PROCEDURES OF FILING
APPLICATIONS, EXAMINATION, GRANT, PUBLICATION OF UTILITY SOLUTIONS AND RELATED
APPEALS, OPPOSITIONS
Section 20:
Filing
Applications for Protection of Utility Solution
(1) The application for a patent
for utility solution shall be fined with the National Office on Inventions of
the State Committee for Science and Technology.
(2) The formal and substantive
requirements of the applications for patent for utility solution shall be laid
down by the implementation regulations to this Ordinance.
(3) In respect of the conversion
of a patent application into an application for patent for utility solution
according to Section 5, the application shall be filed;
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(b) within a period of two
months from the date at which the applicant has received the notification of
the refusal of the grant of patent.
(4) The applicant of patent for
utility solution shall pay the prescribed application fee.
Section 21:
Formal
Examination
(1) Within a period of three
months following the receipt of the application for patent for utility
solution, the National Office on Inventions of the State Committee for Science
and Technology shall accomplish the formal examination of the application. The
acceptance of the acceptable application shall be recorded in the Registry of
Applications for Patent for Utility Solution and shall be notified to the applicant.
The unacceptable application shall be rejected or subjected to amendment,
completion.
(2) The application shall be
deemed not having been filed if, within a period of one month from the receipt
of the notification requesting its amendment, complement the applicant has not
sent the amendment, complement as requested.
Section 22:
Substantive
Examination, Grant of Patent for Utility Solution
(1) Within a period of nine
months from the receipt of the application for patent for utility solution, the
National Office on Inventions shall accomplish the substantive examination of
the solution claimed in the application and, on the basis of the examination
report, the Director of the National Office on Inventions shall make the
decision on the grant of the patent for utility solution to the applicant. If
the National Office on Inventions the requirements for the grant of the patent
for utility solution are not fulfilled shall have the obligation to notify the
applicant of the reasons of refusal to grant the patent for utility solution.
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(3) During the substantive
examination, the National Office on Inventions shall have the right to request
organizations, units in charge of research, designing, production and experts
in the fields concerned to participate in the evaluation of solutions described
in applications.
(4) The patented utility
solution shall be recorded in the National Register of Patent for Utility
Solution.
Section 23:
Complement
of Documents During Substantive Examination
(1) The National Office on
Inventions shall have the right to request the applicant to furnish the
complementary documents for clarifying the essence of the solution claimed in
the application.
(2) The application shall be
deemed not having been filed if, within a period of one month from the receipt
of the notification requesting the complement of documents, the applicant has
not completed the file or has not justified the reasons for the delay in
completing the file. When accepting the reasons for delaying the complement of
file, the National Office on Inventions may prolong the time limit for
substantive examination for the time delayed.
(3) Where the complementary documents
change the essence of the solution claimed in the application, the application
for utility solution shall be refused to be patented.
Section 24:
Publication
of Utility Solutions
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(2) The description of the
patented utility solution shall be laid open in the Central Library of
Inventions subordinated to the National Office on Inventions.
(3) For the purpose of the
protection of national interest, in case of necessity the utility solution may
be deferred or renounced to be published.
Section 25:
Appeal by
Applicant Relating to Grant of Patent for Utility Solution
(1) The applicant when
disagreeing with the reasons for rejecting the application for patent for
utility solution or restricting the scope of protection claimed in the
restricting the scope of protection claimed in the application shall have the
right, within two months from the receipt of the notification thereof, to
appeal to the National Office on Inventions against such decision.
(2) The applicant when
disagreeing with the decision made by the National Office on Inventions
relating to the settlement of his appeal against the refusal of the grant
patent or the restriction of the scope of protection shall have the right to
appeal to the State Committee for Science and Technology.
(3) The decision of the Director
of the National Office on Inventions in respect of an appeal against the reject
of an application, the decision of the Chairman of the State Committee for
Science and Technology in respect of an appeal referred to in Subsection (2)
above shall be final.
(4) Time limit for the
settlement of an appeal at each level shall be three months from the receipt
thereof. The applicant shall be notified of the decision made on the matter.
Section 26:
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(1) Within the term of validity
of the patent for utility solution, any person or organization, unit may be
file with the National Office on Inventions the request opposing the grant of
patent for utility solution when revealed that:
(a) the person who is named in
the patent for utility solution as author is not the person who has made the
utility solution or the latter is not named as author in the patent for utility
solution;
(b) the person who is named in
the patent for utility solution as the owner of title had no right to file the
application as provided in Section 7;
(c) the utility solution for
which the patent for utility solution has been granted has not complied with
the requirements for the protection of utility solution.
(2) The request for opposition
shall clarify the grounds upon which the opposition bases and the person who
files it shall pay the prescribed fee.
(3) The National Office on
Inventions shall have the obligation to settle the opposition within a period
of three months from the receipt of the request.
(4) In case of disagreement with
the settlement made by the National Office on Inventions, the parties concerned
may:
(a) file the request for
opposition with the State Committee for Science and Technology if the reason
for opposition relates to Subsection (1) (c) above. Within a period of three
months from the receipt of the request for opposition, the State Committee for
Science and Technology shall have the obligation to settle it, the decision of
the Chairman of the State Committee for Science and Technology shall be final
in this respect;
(b) file the request for
opposition with the people's court of competent jurisdiction if the reason for
opposition relates to Subsections (1)(a), (1)(b) above.
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Section 27:
Agent
(1) Any person or legal entity
may effect the procedure of the protection of utility solution in Vietnam
through a lawful agent (authorized by the competent authorities for functioning
and approved by the National Office on Inventions of the State Committee for
Science and Technology).
(2) Any person who, or legal
entity which, has neither domicile nor productive, commercial establishment nor
agency in Vietnam shall effect the procedure of the protection of utility
solution in Vietnam through an agent.
Section 28:
Protection
of Secret Utility Solution
(1) Utility solution relating to
national defense, security and utility solution being found to be kept in
secret for protecting national economic interests shall be considered secret
utility solutions.
(2) The regulations laid down
jointly by the State Committee for Science and Technology, the Ministry of
Defense, the Ministry of Interior in respect of the protection of secret
inventions shall apply to the protection of secret utility solutions.
Chapter IV
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Section 29:
Transitional
(1) In respect of a patent application
where the sought patent has been refused to be granted pursuant to the
provisions of Ordinance on Innovations to Effect Technical Improvement and
Rationalization in Production and on Inventions promulgated by Government
Decree No 31-CP of January 1, 1981, the applicant shall have the right to file,
within a period of twelve months from the date of the promulgation of this
Ordinance, the application for the protection of the solution as an utility
solution.
(2) Any person or legal entity
shall have the right to continue to work, without enlarging the extent and
volume of application or assigning the right to work, a solution identical with
the solution in respect of which the patent for utility solution has been
granted according to Subsection (1) above if, prior to the filing date of the
application for the protection of the utility solution, that person or legal
entity has worked the solution or made serious preparation for working it.
Section 30:
Organization
of Implementation
(1) The State Committee for
Science and Technology shall be entrusted with the promulgation of the
implementation instructions for the application of this Ordinance and the
regulation for paying fees relating to the protection of utility solutions.
(2) Ministers, Chairmen of State
Committee, head of organization subordinated to the Council of Ministers,
Chairmen of People's Committees of provinces, cities special regions
subordinated to the Central Government shall be in charge of the dissemination
and application of this Ordinance.