Intellectual Property remains a big challenge for Vietnam under CPTPP

At an informal meeting of representatives from 11 countries (without US) taking place on the Asia-Pacific Economic Cooperation (APEC) dated on November 10th, 2017, the parties agreed to change from Trans-Pacific Partnership Agreement (TPP) to the Comprehensive and Progressive Partnership for Trans-Pacific Partnership (CPTPP).

IP Enforcement in Vietnam

Accordingly, the CPTPP contains 8,000 pages of documents, but only 20 articles of the TPP agreement, including 10 articles related to intellectual property (IP) and 4 points are reserved for the parties to negotiate in next time. Each member will list its delimited list of restrictions of their country.

According to the Vietnam Minister of Industry and Trade, CPTPP still guarantees a quality agreement like TPP-12, while ensuring new equilibria for member countries. The content of the CPTPP is not only about trade, investment, but also on intellectual property (albeit temporarily postponed) and other broad areas.

With CPTPP, Vietnam may not be the most beneficiary country like the proposed TPP, but it is still very important, because it brings together many of the criteria associated with reform, particularly institutional reform, improving the investment climate, business.

Vietnam law on Intellectual Properties will need to be amended because the legal system of Vietnam’s IP is not consistent with the legal system of developed countries.  The Law on Intellectual Property of Vietnam, after many proposals, has not yet been approved by the National Assembly. Meanwhile, the amended Law on Technology Transfer, though approved in June 2017, still lacks specific guidelines on technology transfer.

Intellectual property rights in the TPP not only contain general provisions and requirements relating to areas of cooperation, patents, test data, designs, trademarks, geographical indications or copyright but also focuses on the legal enforcement of this right by nations.

The CPTPP is based on agreed commitments at the TPP, which are particularly important in paving the way for Vietnamese goods to penetrate into the members’ markets.

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Penalties on Working Without Work Permit in Vietnam

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

Issuance of Work Permit for Foreigner Online

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2012, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign citizen wishing to work in Vietnam must fully meet the following conditions:

• Possessing full civil act capacity;
• Possessing technical and professional qualifications and skills and health appropriate to the work requirement;
• Not being a criminal or subject to penal liability examination according to Vietnamese and foreign laws;
• Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign citizens exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign citizens wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit when carrying out immigration procedures or upon request of a competent state agency.

In case foreign citizens who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 95/2013/ND-CP amendments to the government’s Decree No. 95/2013/ND-CP dated August 22, 2013 on Penalties for administrative violations against regulations on employment, social insurance, social insurance, and Vietnamese guest workers:

i) Foreign citizen that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

ii) Employers who employ foreign workers in Vietnam without work permits or certificates of exemption from work permits, or employ foreign workers using expired work permits shall be implied:

a. A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

b. A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

c. A fine From VND 60,000,000 to VND 75,000,000 if the violation involves more than 20 workers;

Additional penalty: The employer who commits the violation mentioned herein shall have its operation suspended for 1 – 3 months.

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How do I write a good provisional patent application?

A provisional patent - as you may already know - helps you buy some time (up to a year ) as you market and possibly develop your idea. This way, if the idea gains traction at some point during the year, you can convert this provisional patent to a fully-fledged utility patent. If not this, you can simply let it expire or lapse after testing the waters and realizing that it wasn't such a good idea to invest hundred of hours and thousands of dollars paying for a utility patent.

Nationalize PCT Patent Application in Vietnam

That being said, here is a quick primer on how to craft a provisional patent:

1. Research Thoroughly

Even before of thinking of filing for a provisional patent, you should first of all do a comprehensive patent search to know whether or not the idea you are interested in has already received another patent protection. Apart from that, conducting a separate search to ascertain that there haven't been any similar inventions that are patented is also a good way of avoiding a corporate lawsuit later. At the same time, you are also likely to come across suggestions of many available unpatented ideas that are in case yours is already taken. Either way, doing a thorough patent search is inevitable as long as you are considering to copyright your innovation.

2. Be Simple, Focused but Thorough

The provisional patent application ought to paint the picture of a unique innovation by listing the specific features/benefits that prove its novelty. In other words, a well-thought and thorough profile is likely to increase the chances of your application getting approved.

3. The Application Package

The full application package ought to tie in the following;

a. The specification of the innovation

b. A drawing of the innovation

c. The filing fee

d. The USPTO Cover

As far as the main body goes, it should consist of the Description of the Innovation, Tittle, Abstract, and the Claim.

Nowadays, you also have to include the drawings of the invention. These can be scanned into the main text area, sketched by hand or designed by CAD, manuals, design software or Powerpoint. Next up is the Claims that describe in detail what the patent seeks to protect. You don't have to include this, but it is recommended that you have them on your provisional patent application.

Lastly, you will have to paste an abstract that summarizes your invention. For this part, it is easier to re-state ( in a few words ) what you had described in the Claims.

The best way to draft a provisional patent application? Ideally, it’s with the assistance of a patentattorney. Patent lawyers do this stuff for a living and will maneuver the application process so that your utility patent application will be a seamless experience. Feel free to visit ANTLawyers.vn. Our legal marketplace is competitively priced, easy-to-use, and backed by a satisfaction guarantee. We offer free consultations to help make sure you’re hiring an attorney that will help you grow your vision. Good luck!

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If I show my national patent application to a company, can they file it as their own in other nations?

If you truly have a national patent (and not a national patent application), then the patent is public knowledge. Anyone in the world can find it, and in most countries (including the US, Europe, and much of Asia) finding it as easy as entering the right query on a web page.

Nationalize PCT Patent Application in Vietnam

If you only have a national patent application, then it may not be public yet. But it will be (in most countries) 18 months after you filed it. So if your outside that window, again, there’s no secrecy to preserve.

Whether or not your patent or pending application is currently public, in most of the world it constitutes “prior art.” (“Most of the world” certainly includes the US, Europe, and most if not all of Asia.) That means it will block any later-filed patent applications that seek to cover the technology disclosed or suggested by your patent application.

To be sure, there might sometimes be good reasons not to show someone your not-yet-published patent application. But if you’re only worried about someone using it as “inspiration” to file their own patent application on the same technology, you need not worry.

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What is the PCT supplementary international search?

SUPPLEMENTARY INTERNATIONAL SEARCH

The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.

Nationalize PCT Patent Application in Vietnam

The PCT procedure includes:

·        Filing

·        International Search

·        International Publication

·        Supplementary International Search

·        International Preliminary Examination

·        National Phase

What is the PCT supplementary international search?

Supplementary international search permits the applicant to request, in addition to the international search (the “main international search”), one or more supplementary international searches each to be carried out by an ISA other than the ISA which carried out the main international search. The additional search has the potential of reducing the risk of new patent documents and other technical literature being discovered in the national phase since, by requesting supplementary search the applicant can enlarge the linguistic and/or technical scope of the documentation searched.

What is the supplementary international search report?

The supplementary international search report is generally similar in content and appearance to the main international search report; it contains a listing of references to patent documents and other technical literature which may affect the patentability of the invention claimed in the international application. However, it does not repeat documents which have already been cited in the international search report, unless this is necessary because of new relevance when read in conjunction with other documents discovered during the supplementary international search. On occasion, the supplementary international search report may contain more detailed explanations than those in the main international search report. This is due to the fact that, unlike the main international search, no written opinion is established with the supplementary international search report, and these additional details are helpful for a full understanding of the references listed.

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Customs Procedures Handling of Exported and Imported Goods Infringing Intellectual Property Rights.

On conducting customs procedures for exported or imported goods, the customs authority shall be responsible to inspect and compare the declared information of the goods owners on the written customs declarations on goods’ names, trademarks, origin, value,…; Inspect and compare the concluded contents of the State management agencies on the exported or imported goods; Results of customs dossiers inspection with the results of goods actual inspection; To compare the said inspection results with the laws and regulations on counterfeit goods.

Customs dispute law firm in Vietnam

In case the goods are found with intellectual property rights infringement signs, leaders of the Department of Customs where the infringing goods are located shall consider and decide to apply measures to prevent administrative violations and ensure the administrative violations punishment according to Current regulations for the cases:

Imported goods do not comply with goods labeling in accordance with regulations of laws; state inspection conclusion on goods quality or goods quality inspection results determine that the inspected goods do not fulfill requirements on importation and exportation quality; the goods listed in the list of state management agencies that fail to meet quality standards or are not allowed to circulate on the market; The contents stated on the goods labels are incompliant with other enclosed documents and so on.

Regarding the infringing goods and being temporarily suspended, during the time the goods are being temporarily suspended or subjected to prevention measures as prescribed by laws, the Departments Customs shall be responsible to take the following verification measures: Requesting the goods owner, owners of genuine goods which are counterfeited to provide documentation relating to the goods; cooperating with the goods owners and owners of genuine goods being counterfeited to collect samples and unify the appraisement traders to conduct appraisement; coordinating with the anti-smuggling control forces in verification and investigation according to prescribed profession.

Actions against counterfeit goods or goods with signs of counterfeit

In case the imported, exported goods are detected to be counterfeit, preventive and penalty measures in accordance with legislation on penalties for administrative violations shall be applied;

If exported and imported goods are detected with signs of counterfeit, the Director of the Department of Customs shall request the customs declarant to provide documents related to the goods:

A sale contract of goods or vouchers with equivalent value;

A technical document or a written component analysis (if any).

If the owner of the genuine goods which are counterfeited is determined, the owner of genuine goods which are counterfeited shall provide documents related to goods (such as catalogs, appraisement conclusions, and documents from abroad, results of handling of similar cases). If the owner of the genuine goods could not be determined, customs dossiers, genuine goods, analysis results of the risk information of goods and the law on counterfeit goods shall be utilized for identification; customs control forces shall be cooperated to investigate, verify (if necessary) or transfer information, case files to customs control forces to investigate, verify and handle in accordance with regulations of laws.

To learn more about ANT Lawyers IP Practice or contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 32 23 27 71

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