Patent Registration Procedures in Vietnam

Patent ownership of an invention or a utility is only established by the registration procedure, and in accordance with the scope of protection defined in each patent in Vietnam.

Once a dispute arisen, without other evidences, the patent is the only and the most important proof to prove the ownership. Therefore, it is advised that filing a patent for an invention or a utility model shall be a prior prevention of an infringement.

 Under the laws on Intellectual Property of Vietnam:

“Invention” means a technical solution in the form of a product or process which is intended to solve a problem by application of natural laws.

Unless an invention is common knowledge, it shall be protected in the form of the grant of a utility solution patent (or a utility model) when it satisfies the following conditions:

-It is novel

-And it is susceptible of industrial application.

With highly professional staff and great experience in IP aspect in Vietnam, ANT Lawyers would like to support you in filing a Patent on an invention or a utility in Vietnam.

1. Our services in Patent for invention and Utility model

Our services in Patent field include:

-Searching, provision of professional opinions and advice in relation to registering ability of Patent/Utility model;

-Preparation, drafting the description and necessary documents, filing and prosecution of applications Patent/Utility model;

-Maintenance;

-Amendment;

-License;

-Assignment;

-Opposition against proceedings;

-Appeal;

-Cancellation;

-Invalidation;

2. How to file a patent in Vietnam

Inventors or Organizations or individuals who have supplied funds and material facilities to inventors in the form of job assignment or hiring have the right to file patent application in Vietnam.

An invention shall be protected in Vietnam when it satisfies the following conditions:

-Novelty;

-Inventive step;

-Industrial applicability;

3. Required information and documents

For the purpose of filling the patent application in Vietnam, the following documents will be required:

-Full name and address of applicant(s);

-Full name, address and nationality of inventor(s).

-Original Power of Attorney (POA) from the Applicant(s)

-Copy of the description, drawings and abstract of the patent application in English (in Word format) and/or the amended description, claims (if any);

-Certified document for claiming priority right (if any).

Note: The POA must be signed by the applicant or a duly authorized representative on behalf of the Applicant and no further notarization or legalization is required.

4. Patent Examination Procedure

The patent application will be examined by National Office of Intellectual Property of Viet Nam (NOIP) with Patent Examination Procedure as below:

-Formality examination: Under Intellectual Property Law of Vietnam, the above application will be examined as to form within one [01] month as from the filing date or date entering the national phase. If the invention application meets the requirements as to form, the NOIP will issue a decision of formality acceptance and then the application will be further processed. Publication of the Patent Application is within 02 months from publication date of 19 months from priority date.

-Substantive Examination: Substantive Examination does not automatically proceed from filing, and the applicant must request for substantive examination by 42 months from the priority date, or by 36 months if the request is for a utility model, otherwise the application will be considered as withdrawn.

-Notification of the Substantive Examination Results.

-The Decision of Refusal or Request to pay fee.

-Issuing the Patent of Invention.

5. Patent Term and Maintenance

Invention patents shall each have a validity starting from the grant date and expiring at the end of 20 years after the filing date. The owner of a Patent for Invention or Patent for Utility Model is required to pay annuity fees in order to maintain its validity.

If you are looking for an experienced IP services in Vietnam to help you with your IP application, you should visit ANTLawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your IP.

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How to Draft Contract for Licensing of Industrial Property Rights in Vietnam?

Licensing of industrial property rights is one of the legal measures to transfer technology. In accordance with Law on Intellectual Property, licensing of an industrial property rights means permission by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of the owner’s right.

Licensing of industrial property rights must be established in the form of a written contract. There are three types of industrial property object licence contracts: Exclusive contract; Non-exclusive contract; Industrial property object sub-licence contract.

Exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed industrial property object while the licensor may not enter into any industrial property object licence contract with any third party and may use such industrial property object only with permission from the licensee.

Non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the industrial property object and to enter into a non-exclusive industrial property object licence contract with others.

Industrial property object sub-licence contract means a contract under which the licensor is a licensee of the right to use such industrial property object pursuant to another contract.

What is the advantages and the disadvantages of licensing contract?

Firstly, for licensor, licensing can be used to access new markets that are not easily accessible. By allowing the licensee the right to market and distribute the products, the licensor can more easily enter the market; Licensing contract may stipulate measures for the licensor has the right of improvements, technical know-how and related products that will be developed by the licensee during the valid term of the contract. However, the licensor may not always claim these rights, and some countries have strict restrictions on including these types of terms in the licensing contract; Licensing is necessary if the product only sells best when combined or sold for use with another product; Last but not least, the licensing contract allows the licensor to hold ownership of the intellectual property and at the same time receive licensing fees, in addition to the profits gained from self-exploitation of such assets from products or services sold or provided by that party.

Besides the advantages, the licensing contract also has some disadvantages for the licensor. The licensee may become a competitor of the licensor. The licensee may make the licensor make less remuneration than the business losses resulting from the competition of the new competitor; The licensee may unexpectedly request contributions, for example, for technical assistance, human resource training, additional technical data, etc. It is important that the licensing contract must clearly stipulate the rights and obligations of the parties, whereby any disagreements that occur in the future can be resolved quickly and effectively; The licensor’s revenues depend on the skills, capabilities and resources of the licensee. This dependence is even greater in the case of exclusive licensing. The provisions of minimum wage and other provisions may be provided to avoid this, but this is still a concern.

Secondly, for the licensee, the advantage of a licensing contract is allowing access to technology that has been developed or is available to apply for helping businesses access to the market more quicly; Small companies may not have the resources to do and carry out the research to supply new and higher quality products. The licensing contract allows enterprises access to technical advances that are difficult to achieve by other measures; Licensing may also be necessary to maintain and develop an established market position but be threatened by new designs or production methods. Access to new technology through a licensing contract is the best way to overcome this challenge; There may be many opportunities to get a license when combining with existing company technologies can create new products, services and opportunities in the new market.

Regarding the disadvantage to the licensee, the licensee may have to make financial commitments to technology that is “not yet ready” for commercial exploitation, or need to modify the technology to meet its business needs; An intellectual property licensing contract may result in additional costs for the product. Many technologies integrated into products can create products with high technology content but are very expensive when publishing to market; Licensing may create technological dependence on suppliers, who may not extend the licensing contract and negotiate a licensing contract with other competitors to limit the market or to limit exploitation activities which was allowed in accordance with licensing contract.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

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What are Forms of Arbitration Agreement under Vietnam Laws

Under Article 16 of Vietnam Law on Commercial Arbitration, forms of arbitration agreement resolving disputes are in written form.  In particular:

An arbitration agreement may be made in the form of an arbitral clause in a contract or in the form of a separate agreement.

Arbitration lawyers in Vietnam

An arbitration agreement must be in writing. The following forms of agreement may also be regarded as written form:

1.Agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by law;

2.Agreement made through exchange of written information between the parties;

3.Agreement recorded in writing by a lawyer, notary public or competent institution at the request of the parties:

4.In their transactions, the parties make reference to a document such as a contract, document, company charter or other similar documents which contains an arbitration agreement;

5.Agreement made through exchange of petitions and self-defense statements which reflect the existence of an agreement proposed by a party and not denied by the other party.

In case multiple arbitration agreements are reached on the same dispute, the latest lawful agreement shall apply.

If the contents of an arbitration agreement are not clear or could be understood in more than one way, regulations of the Civil Code shall apply.

When there is a handover of rights and obligations under a transaction or contract which contains a lawful arbitration agreement, such agreement is still applicable to the transferee and the transferor, unless otherwise agreed by the parties concerned.

Multiple legal relationships to resolve the same case shall be combined if the parties agree to combine multiple legal relationships to resolve the same case, or the arbitration rules allow for combination of multiple legal relationships to resolve the same case.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

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Risk management in Vietnam

The concept of risk is not strange to businesses in particular and those who do business in general. “Doing businesses is taking the risk” became a popular saying of the business people, whether they are owners of large or small businesses.

Although business has to face with risk every day and every hour but risk management is relatively new concept, not many businesses have understanding about it. Therefore, the risk management activities of the business are often being conducted in a half-hearted way. Not many businesses, including large enterprises, have proper risk management departments in their organizational structure. Hence, the uncertainties and crises are usually occurs, causing negative effects and sometimes become disaster for the business.

There are always potential risks in any business environment, whether that environment is developed with clear and transparency rules, or that environment is primitive environment with many confusing and complicated. If the business environment is primitive with inexperienced entrepreneurs, there will be more risks. Risk can be derived from many factors in which the subjective factors may cause risk to occur more with more severe consequences, or vice versa, enterprise can stop the risk or significantly reduce its impact. This depends on the risk management capacity of organizations and businesses.

Risk management is the process of analyzing the environment (inside, outside) to identify, analyze, evaluate, classify, ranking and implementing appropriate solutions to respond to risks to eliminate or minimize the negative impacts that may have. In many cases, risk management includes identifying opportunities within the risk, in order to exploit, take advantage of them and bring benefits to compensate for the damages caused by the risk.

Risk management is different from risk control and risk handling. Risk control is the response activities for the risks that have been identified. Risk handling is dealing with risks and crisis after it has actually occurred. Risk management is the systematic activities, maintaining at every level and assigning to a specialized department.

Properly understand the nature and importance of risk management, business will definitely not hesitate in setting up a professional risk management system. An effective risk management system helps businesses to identify risks early (which are very diverse, extensive and constantly changing), evaluate the possibility to occur and the degree of harm to have effective response measures. Unfortunately, the subjectivity is still the characteristic of many businesses in the risky business environment.

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ALIBABA FROM CHINA ACQUIRES LAZADA VIETNAM

Recently, there is a trend that foreign company comes and buy company in Vietnam, in order to expand their business operation and also set foot in Vietnam market, where is emerging as a potential market of the area.

Alibaba Group – China’s giant technology corporation has spent 1 billion USD to acquire Lazada, thereby officially set foot in the online sales market of Vietnam.

On April 12th 2016, the China’s giant technology group named Alibaba Group announced that it has reached an agreement to acquire the control of e-commerce platform in Southeast Asia, which is Lazada with an amount of 1 billion USD , thereby officially set foot in Vietnam.

The transaction includes an investment of 500 million USD in Lazada’s newly issued equity and the repurchase of shares of some Lazada’s shareholders include Rocket Internet SE, Tesco Plc and Investment AB Kinnevik with a total investment value of Alibaba reach approximately 1 billion USD.

This acquisition is expected to help worldwide brands and distributors that are trading on the platform of Alibaba, as well as local vendors can reach the consumer market of Southeast Asia. In addition, Alibaba deal with a certain number of shareholders of Lazada, giving Alibaba the right to purchase and shareholders the right to sell its remaining shares in Lazada at the market prices in 12-18 months after the completion of the transaction.

Lazada is headquartered in Singapore, which was founded and operated by Rocket Internet SE from Germany. The company carries out e-commercial activities in Indonesia, Singapore, Malaysia, Philippines, Thailand and Vietnam.

According to Bloomberg, the deal came from the objectives set by the billionaire cum Alibaba’s chairman Jack Ma, targeting at least half of company revenue comes from markets outside of China.

Through the deal with Lazada, Alibaba generate more revenue from sale of clothing and electronics in 6 regional markets in Southeast Asia where Lazada if operating, including Vietnam.

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SAIGON CO.OP COOPERATED WITH WILMAR (JAPAN) TO BUILD SAUCE FACTORY

Nam Duong International Food Co., Ltd will implement the project with a total investment capital of 577.2 billion VND (equivalent to 25.6 million USD) to build a new factory in Hiep Phuoc Industrial Zone (Nha Be, Ho Chi Minh City).

Accordingly, Nam Duong International Food Co., Ltd is a joint venture between Saigon Co-op (a large retailer in Vietnam) and Wilmar International Limited (Singapore) with the capital contribution ratio is 49% and 51% respectively.

After the joint venture was established, the preparing procedures for the new factory will be conducted expeditiously. The factory will specialize in manufacturing sauces and spices to serve the domestic and export market.

The brand “Nam Duong” owned by Saigon Co.op, which was founded in 1951, is one of the brands in the sauces and spices industry in Vietnam, with products: soy sauce, sauce, chili and tomato sauce. These products are preferred by domestic and abroad consumers. These products are now being exported to markets such as the US, Canada and Europe.

As the leading retailer in Vietnam, Saigon Co.op understands the trend, tastes and appetites of consumers. On the other hand, Wilmar Group which has extensive experience in manufacturing and distribution of food worldwide. Through this joint venture, the Nam Duong’s sauces and spices products will meet the international production standards and safety and will be sold in a global distribution network but still preserve the traditional flavors in each product.

The main objective in the development strategy of Wilmar is aimed at building and developing closed business models with diverse agricultural commodities, proactive from input raw materials to produce and distribute finished products. Currently, the Group has more than 500 factories in China, India, Indonesia, Indonesia, Vietnam and 50 other countries worldwide. The Group develops based on multinational human resources base with 92,000 employees.

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What do US investors want in Vietnam?

The event, themed “My Vietnam - Your investment destination” took place in New York City from July 1- 5 with the purpose of strengthening US investors’ confidence in development potential of the Vietnam market.

The event hosted by the State Securities Commission (SCC) and the Vietnam Ministry of Finance in collaboration with US partners was designed to create a substantive dialogue channel helping US businesses and investors better understand the situation in Vietnam and the Government’s renewal policies toward building a comprehensive and extensive partnership in the financial sector for the benefit of both countries.

Those in attendance included Finance Minister Dinh Tien Dung, the head of Vietnam’s Permanent Representative Delegation to the UN, Ambassador Nguyen Phuong Nga, Marc Mealy, Vice President for Policy of the US-ASEAN Business Council, the Harbinger Foundation President, along with 150 Vietnamese businesses and over 160 US business representatives.

- Which fields of investment in Vietnam are interested in by US investors, especially billionaires?

Pham Viet Muon: There are four areas of the most interest, including: equitization of state-owned enterprises (SOEs), the stock market, government bonds and business establishment.

Indeed, foreign investors in general and US investors in particular have not participated much in the process of restructuring SOEs through equitization because the process of equitization has mainly occurred at SOEs of small and medium size, while US investors are interested in large ones.

- Vietnam’s capital market has great potential for US investors. Do they have an interest in this market, for example the stock market?

Pham Viet Muon: It is true that they are interested in Vietnam's stock market due to stable economic growth and the prospects for Vietnam’s high growth rate of 7%/year, especially the change of the government’s policy in allowing foreign investors to own 100% of domestic enterprises, except for those operating with certain conditions.

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Benefits of Setting up Business in Hanoi

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- Some US billionaires participated in the investment promotion conference. Could you tell us about their biggest interests?

Pham Viet Muon: Finance Minister Dinh Tien Dung talked with a number of US billionaires, who told the Minister about their concerns, such as their position when they invest in SOEs. Minister Dinh Tien Dung answered all of their questions. They promised to invest in Vietnam soon.

US investors also met with Vietnamese officials and representatives of big Vietnamese corporations as the State Capital Investment Corporation (SCIC), the Vietnam Coal - Minerals Corporation ( Vinacomin), the Bank for Investment and Development of Vietnam (BIDV), and stock exchanges.

- Previously, many American corporations came to Vietnam to seek investment opportunities, but there are few US investors in Vietnam. How can you explain this fact?

Pham Viet Muon: The reasons did not come from us. Firstly, the time for investment was immature. Secondly, large projects did not appear at the beginning when we just opened the door to attract foreign investment. That was not attractive to American investors, including many large investors and the world's billionaires.

The current situation is different. We are equitizing large SOEs and this is the time for the US investors.

Moreover, the areas we are calling for foreign investments are broad, including power, petroleum, coal, aviation ...

- A group of US investors is visiting Vietnam in the coming time. Is this one of the signs for a wave of US investment in Vietnam?

Pham Viet Muon: Currently, US investment in Vietnam is quite large, but compared with that from Japan, South Korea, and Singapore it remains low. The reason is US investors still expect the business environment in Vietnam to improve dramatically.

But we have a foundation for hope of a wave of US investment in Vietnam because we have signed the Vietnam - US Free Trade Agreement and the Trans-Pacific Partnership Agreement (TPP) is also in the process of negotiations, and once it is signed, it will boost trade between Vietnam and countries.

This is a great opportunity for Vietnam's economy as well as investors interested in Vietnam. Vietnam has also issued many open policies to attract foreign investors, for example the issuance of Decree 60/2015.

The recent event in the US is one of the actions to promote and concretize the agreements that Vietnam and the US have achieved.

PLTPHCM

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