Exploring patent information from the ASEAN region
The second part of our series on patent information from the ASEAN region will focus on another emerging market: Vietnam.
According to the latest Global Innovation Index (GII) of 2022, Vietnam is a so-called "innovation achiever," or a country whose innovative performance is above expectations in relation to its development level based on gross national income per capita.
Vietnam not only ranks second among the 36 "lower-middle income economies", its average innovative performance even exceeds that of more advanced "upper-middle income economies".
The fact that high-cost innovation investments translate into more and higher quality outputs makes Vietnam particularly attractive to investors. This development is reflected in the growing number of patent applications filed in Vietnam over the last 10 years, as shown in the chart below:
The origins of Vietnam's IP system can be traced back to the late nineteenth century when France - at that time the colonial power - extended its patent law to Vietnam (valid until 1945). Although Vietnam signed the Paris Convention back in 1949 and became a WIPO member in 1976, its national IP office was only founded in 1982, with the first independent patent system entering into force in 1989.
Vietnam became, among others, the workbench for the Western textile and food industry and foreign investors wanted to protect their inventions. This swiftly paved the way for the PCT route to Vietnam in 1993.
At this stage, the focus was on "innovation input" to Vietnam, as nearly all applications were filed by foreigners. There were not many first filings, but most Vietnamese applications were just another member of an already existing patent family, based on a previous filing abroad. This situation is reflected in the following features of the Vietnamese patent system:
- Recommendation to submit search results of corresponding foreign applications to speed up the examination procedure
- No separate publication of applications of foreign origin. Filings by foreigners that enter Vietnam via the PCT route are only published with bibliographic data and a reference to the WO publication; but there is no separate Vietnamese publication of the claims or description of the application.
Recent patent law amendments in Vietnam
In recent years, Vietnam's "innovation output" has also become increasingly important. This is reflected not only in Vietnam's overall performance in the Global Innovation Index as shown above, but also in the evolution of patent filings by Vietnamese applicants.
Even though the numbers are still at a comparatively low level, domestic applications have increased by a factor of 2.6 during the last ten years. Patent law obviously needed to accommodate these changes. Some of the most important features of the recent law amendment in January 2023 include the following:
- Introduction of "secret prior art" as novelty-destroying prior art: "Secret prior art" refers to Vietnamese applications with an earlier filing date, but which had not been published on the filing date of subsequent applications and therefore were still "secret". Under the revised regulations, these unpublished earlier applications must still be considered as prior art.
- Introduction of security control regulations when filing abroad: This regulation will be very familiar to experts on patent law in China, where a similar regulation was introduced over a decade ago. For inventions made in Vietnam - even if funded and realised by foreigners - applicants must go through a security check procedure and obtain permission before filing a patent application for their invention abroad.
- New grounds for invalidation: In Vietnam, third parties may challenge a granted patent via a request for invalidation. The last revision extended the grounds for invalidation to the following:
- Violations of the security control regulations mentioned above
- Insufficient or incorrect disclosure that an invention is directly based on genetic resources or traditional knowledge about genetic resources
- Submission of amendments that expand the scope of the disclosed subject matter or change the nature of the subject matter claimed in the application
The latest patent law change probably will not be the last. Given Vietnam's growing participation in the international innovation market, we expect its patent law to be gradually harmonised with that of other countries.
Keywords: Vietnam, patent law, amendment, ASEAN