Vietnam – patent examination of secret inventions guided

On December 31, 2021, the Intellectual Property Office of Viet Nam (IPVN) released the Guidance for the Acceptance and Processing of Patent Applications for Secret Inventions. Secret inventions are inventions that serve national defense and security or are necessary for the development of the social economy. They are state secrets, so only the competent state authorities can determine whether the invention is secret or not.

A patent application for a secret invention can still be filed, examined, granted, etc. (but not published); and when the secret is declassified, it will become a normal fiction. Like other state secrets, a secret patent application/secret patent is subject to declassification within the prescribed time limit. In particular, a secret patent application/secret patent will be automatically declassified after the expiration of the secrecy period, which is 10 years (if the classification period is not extended) or when it is no longer on the list of state secrets; or it will be declassified by decision of the competent authority in the field of national interests, economic development, international cooperation, etc.

– relevant dossiers, documents and official communications in the application must be transmitted, processed and managed in accordance with the provisions on the protection of state secrets;

– An application for a patent for a secret invention must be submitted only in paper form;

– Such an application is subject to a substantive review within 18 months from the date of formal acceptance of the IPVN application (if the request for examination is submitted before the date of formal acceptance) or from the date of filing an application for an examination (if the request is submitted after the date of formal acceptance); as well as

– There is no procedure for appealing applications.

The Guide also indicates cases of declassification of a secret patent application/secret patent, namely:

– upon completion of the examination of the secret patent application, IPVN determines that the content relating to the invention has been disclosed; or

– When other competent institutions/authorities (Ministry of Public Security, Ministry of National Defense, etc.) declassify the secret patent application/secret patent.

The guide also contains recommendations after the declassification of a secret patent application/secret patent:

– The filing date of the declassified secret patent application is the filing date of the original secret patent application, and the declassified secret patent application continues to be processed as a regular patent application;

– The issue date of the declassified secret patent is the date of issue of the original secret patent, and the declassified secret patent continues to be processed as a regular patent; as well as

– A declassified secret patent application/declassified secret patent is published as a regular patent application/ordinary patent.

The above recommendations are quite clear; Unfortunately, the legal documents are silent on the procedure for an applicant to petition the competent authorities to determine whether his invention is classified and then apply for a patent as above.

The Government is taking steps to amend Decree No. 103/2006/ND-CP. It is planned that the amended Resolution will enter into force approximately in January 2023. We hope that the amended Resolution will introduce the procedure for filing a petition.

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