TEMPORARY RIGHTS (PROVISIONAL RIGHTS) FOR PATENT IN VIETNAM

In Vietnam, “temporary rights or provisional rights” refer to a provision under the Law on Intellectual Property (IP Law) that grants provisional protection to patent applicants from the date of filing until the patent is granted or rejected. This provision aims to safeguard the interests of inventors/applicants during the period when their patent applications are pending examination by the Intellectual Property of Vietnam (VNIPO).

Below are the detail Vietnamese regulation

Article 131. Provisional rights to inventions

1. Where an applicant for registration of an invention or industrial design knows that such invention or industrial design is being used by another person without prior use right for commercial purposes, the applicant may notify in writing the user of the filing of his/her application, clearly specifying the filing date and the date of application publication in the Official Gazette of Industrial Property so that the later shall terminate or continue such use.
2. Where the person notified of the contents specified in Clauses 1 and 2 of this Article continues using such invention, industrial design, as soon as an invention patent, utility solution patent, industrial design patent is granted, the owner of such invention, industrial design will have the right to request the user of such invention,

industrial design to pay a compensation equivalent to the price for licensing of such invention, industrial design within the relevant scope and duration of use.

Here’s an explanation of how temporary protection rights work for invention applications in Vietnam:

1. Initiation of Temporary Protection:

It can be understood that the temporary right begins automatically upon the filing of a patent application with the VNIPO. Once the application is submitted, the applicant is entitled to certain rights and benefits provided by law.

2. Scope of Temporary Right

During the application examination process, the applicant somehow enjoys certain exclusive rights similar to those granted to patent holders. These rights typically include the ability to make caution to others from manufacturing, using, selling, offering for sale, or importing the invention in Vietnam without authorization from the applicant. If the Patent is granted, the applicant can gain economic benefits as in case of licensing.

3. Duration of Temporary Rights

Temporary protection lasts from the filing date of the patent application until the patent is granted or rejected by the VNIPO. This period can vary depending on the complexity of the application and the backlog of examination at the NOIP. In some cases, it may take several years for a patent application to be fully examined and granted.

However, we think that the right to send Cease and Desist letter to others is only available from the publication date of the invention/industrial design.

4. Limitations of Temporary Rights

It’s essential to note that temporary rights have limitations. While they provide some level of protection to the applicant, these rights are not as comprehensive or enforceable as those of a granted patent. Temporary right does not confer the same legal status as a granted patent, and enforcement actions may be more challenging during this period.

5. Benefits of Temporary Rights

Despite its limitations, temporary right offers several benefits to patent applicants. It allows them to establish priority rights over their invention, potentially deterring competitors from copying or exploiting the invention during the application process. Additionally, temporary right can be leveraged in licensing negotiations or commercialization efforts to demonstrate the applicant’s commitment to intellectual property protection.

6. Transition to Granted Patent

Once the patent application is examined and meets the patentability criteria, the NOIP will grant the patent, providing the applicant with full patent rights. At this point, the temporary right period ends, and the patent holder can enforce their rights against infringers through legal action if necessary.

Overall, temporary rights play a crucial role in the patent application process in Vietnam, providing inventors with a measure of protection while their applications are pending examination. However, applicants should be aware of the limitations of temporary right and seek professional advice to fully understand their rights and obligations under Vietnamese patent law.

For any free advice and quotation, please do not hesitate to email us at ip@anlis.vn