The implementation of international treaties on patent protection in vietnam

H A N O I L A W U N IV E R S IT Y LU N D U N IV E R S IT Y F A C U L T Y O F LA W THE IMPLEMENTATION 0F INTERNATIONAL TREATIES ON PATENT PROTECTION IN VIETNAM SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 M A ST E R OF LA W TH ESIS STUDENT: LE THI ANH DAO THƯ V I Ệ N TRƯỜNG Đ ẠI HỌ C LỮÂT HÀ NÒI : PHŨNGĐOC J ' w - SUPERVISORS: DR BUI DANG HIEU HANS HENRIK LIDGRAD HANOI - 2004 FACƯLTY F LAW University of Lund Le Thi Anh Dao The implementation of intemational treaties on patent protection in Vietnam Master thesis Supervisor: Professor Hans Henrik Lidgard Professor Bui Dang Hieu Autumn - 2004 Contents ACKNOW LEDGEM ENTS PREFACE ABBREVIATIONS INTRODUCTION 1.1 Rationale 1.2 Purpose of the thesis 1.3 Methods 1.4 Thematic limitation of study OVERVIEW OF PATENT AND IMPLEMENTATION OF INTERNATIONAL TREATY ON PATENT PROTECTION 2.1 Defmition about Patent and Patent protectỉon 6 2.1.1 P aten t deỳìned ỉ Patentprotection dẽfìned s 2.2 General provisions on patent protectỉon of internatỉonal treaties binding Vietnam 2.2.1 Principles o f protection 2.2.1.1 Principles o f National Treatment (NT) and MostFavor Nation (MFN) 2.2.1.2 Principle o f minimum protection 2.2.1.3 Principle o f objectives o f patent protection 10 2.2.2 P aten tableýìelds a n d p o ssib le exclution to patentability 11 2.2.3 P C T application a n d prio rity right 13 2.2.4 R ights confered 14 2.2.5 Term o f protection 17 2.2.6 E n forcem en t o f paten t right 2.2.6.1 General provisions on eníịrcement o f patent rights 2.2.6.2 Civil and administrative procedures 2.2.6.3 Crimminal procedures 2.2.6.4 Border control measures 2.3 10 11 11 17 17 18 19 20 Deíĩnition and meanings of implementing international treaty on Patent protection 20 2.3.1 Im plem entation defìned 20 2.3.2 M eanỉngs o f im plem enting international treaty oit pa ten t protection in Vietnam THE VIETNAMESE MECHANISM FOR PATENT PROTECTION IN LIGHT OF IMPLEMENTING INTERNATIONAL TREATIES 3.1 Lavv on Patent protection 3.1.1 The system o fle g a l docum ents 22 23 23 23 3.1.2 G eneral provision s on p a ten tprotection o f Vietnamese p a ten t la\v 25 3.1.2.1 Principle o f applying intemational treaty and NT 25 3.1.2.2 Patentable íĩelds and possible exclusion to patentability 25 3.1.2.3 Patent application and priority right 25 3.1.2.4 Rights confered and obligations 27 3.1.2.5 Tenn o f protection 28 3.1.2.6 Enfocement o f patent protection 28 3.1.3 E valuate the Vietnamese P atent law in light o f im plem enting International Treaties 31 3.1.3.1 Evaluate the system of patent law 31 3.1.3.2 Evaluate the content o f Vietnamese patent law 31 3.2 Avvareness and activity of patent holders to self-protect 32 3.3 Institutions for patent protection 34 3.3.1 S tate m anagem ent bodỉes 34 3.3.2 S tate enforcem ent bodies 35 3.3.3 Supportive organiiations 35 3.3.4 P aten t inform ation centers 36 DIRECTION AND SOLUTIONS TO ENHANCE THE IMPLEMENTATION OF INTERNATIONAL TREATIES ON PATENT PROTECTION IN VIETNAM 4.1 Advantages and disadvantages challege Vietnaỉn in implementing 37 37 4.1.1 A dvantages 37 4.1.2 D isadvantages 38 4.2 Direction and basic principles to enhance the implementation 39 4.3 Solutions to enhance the implementation 4.3.1 To p erfect law on pa íen ro tectio n 4.3.1.1 Short - term measures 4.3.1.2 Long - tenn measures 4.3.2 40 40 40 40 To enhance avvareness and activity to self- protect the rig/tís o f the orvners 42 4.3.3 To renv orgiitation and im prove capacity o f institutions f o r p a te n í protection 4.3.3.1 For State management bodies 4.3.3.2 For State eníbrcement bodies 4.3.3.3 For the supportive organizations 4.3.3.4 For patent infonnation centers CONCLUSION 43 43 43 44 44 46 BIBLIOGRAPHY 47 A PPEN DIXES 49 ACKNOWLEDGEMENTS I hold it as a great honour to participate in The Svvedish/Vietnamese Master Programme in International and Comparative Law It is a pleasure to express my gratitude to all the persons who helped me in pursuing my study and research First, I devote my very particular thanks to the Board o f Directors, Professor Hans Henrik Ligard o f Lund University, professor Bui Dang Hieu o f The Hanoi Law ưniversity and all professors of the project who helped and gave me invaluable knowledge I would like to extend my words of appreciation to Librarians o f Lund ưniversity, Human Right Librarians and all Swedish friends Finally, I am indebted to Lund University and The Ha Noi Law University for financing my study Preface To my parents whose love and comíbrt encouraged me to complete this academic pursuit Abbreviations WTO WIPO TRIPs BTA EU R&D UPOV MFN NT IPR 1P MOSTE MOST MOCI NIOP World Trade Organization World Intellectual Property Organization Agreement on Trade-Related Aspect o f Intellectual Property Bilateral Trade Agreement between Vietnam and us European Union Research and Development International Convention for the Protection o fN ew Varieties o f Plants Most Favor Nation National Treatment Intellectual Property Rights Industrial Property Ministry O f Science-Technology and Environment Ministry O f Science-Technology Ministry O f Culture and Infonnation National Office o f Intellectual Property Introduction 1.1 Ratỉonale Invention is viewed as an important object of industrial property (IP) Most all nations recognize the need to protect it in some form due to its potential value and sought to provide clear guidelines for this protection However, there are still difference views o f patent protection, even among developed countries The present intemational context raises the quest for patent law harmonization and it is challenging many countries, including Vietnam Moreover, the major target o f Vietnam now is industrialization One important method for the advancement o f Science and technology involves the transfer of technology in the form o f patents from foreign countries to Vietnam Thereíbre, Vietnam has soon adhered most intemational treaties on/ related to patent protection, such as: The Stockholm Convention for Establishing WIPO (since July, 1976); The Paris Convention for Protection o f Industrial Property (since March, 1949 and hereinafter called the Paris Convention); The Patent Co-operation Treaty (Since 10 March, 1993 and hereinaữer called the PCT); The Bilateral Trade Agreement between The Socialist Republic o f Vietnam and The United State o f America (since 2001 and hereinaíier called The BTA) Pursuaní to these treaties, the patent systcm o f Vietnam has under gone major changes, especially since 19811 Despite the optimism, an inadequate inírastructure and an arcane legal system have kept away some potential invcstors.2 It also should be noted that Vietnam is currently negotiating for joining World Trade Organization (WTO) pon joining WTO, Vietnam will have to respect the agreements o f WTO members, including the Agreement on Trade- Related Aspects o f Intellectual Property Rights (TREPs)- which is commonly viewed as the "most ambitious International intellectual property Convention ever attempt"4 The TRIPs contains a number o f provisions conceming patent rights The Standard for patent protection in TRIPs is considered ĩairly high for many developing countries including Vietnam At the negotiating conferences for WTO membership, Vietnam delegation had to (and will have to) answer hundred o f questions related to clariĩication o f patent protection and intellectual property protection as well in Vietnam The intemational community are much conceming about the effĩciency o f patent protection in Vietnam rather than the adequacy o f its It means, joining intemational treaties on/related to patent protection is only One side, the more important side is domestic implementation o f patent protection as required by these treaties T h e C o m m u n i s t G o v e r n m e n t d e c r e e d a w o r k i n g p a t e n t s y s t e m in 1981 S ee, O r d i n a n c e on I n n o v a t i o n to effect t e c h n i c a l i m p r o v e m e n t s a n d R a ti o n a l i z a ti o n s in p r o d u c t i o n an d on I n v e n t i o n s ) , Ja n , 1981 D a n Biers A s V i e t n a m O p e n Its A r m s to F o r e i g n In v esto rs, J a p a n e s c , U S F i r m s T a k e a M e a s u r e d P l u n g e , A s ia n W a l l S t.J.W f C L Y ; S e p t 9 , at 2; M i c h a e l J S c o w n , V i e t n a m has far to g o to N u r t u r e I n v e s t m e n t , A s is a n W all A t j W K L Y ; N o v , 1994, at 16 ' V i e t n a m w a s g r a n t e d o b s e r v e r statu s b y th e G A T T C o u n c il in Ju ly 199 4, an d í b r m a ll y a p p l i e d for W T O m c m b e r s h i p in J a n n u a r y 1995 C a r l o s M C o r r e a , “ T h e G A T T A g e e m e n t on T r a d e - R e l a t e d A s p e t c s O f In telle ctual P r o p e r t y R ig hts: N e w s t a n d a r d s for p a t e n t p r o t e c t i o n ” , E u r o p e a n Intelle ctu al P r o p e r t y 9 ,1 ( ), p.3 3.3.2 State enforcement bodies Pursuant to enforcement measures, the function to ensure enforcement patent rights and IP as well is empovvered to the following bodies Firstly, the provincial people courts authorized to all patent disputes, including the ones related foreign aspects by civil procedures and administrative procedures as well, the district courts authorized to criminal cases under criminal procedures with the penalty no longer than years imprisonment Secondly, administrative measures can be applied to iníringing cases by the Local People’s Committees, Market Management Bureau, Science-Technique specialist Inspectors and Police Thirdly, Customers authorizeđ to impose administrative measures to patent infringements via import-export activities Such arrangement and authorization has contained important disadvantages since there are so many authorities empowered to impose administrative sanctions which domestically occur (at least authorities, including, People’s Committee, Inspector, M arket Management and Economic Police in each province) It ỉeads to passive dependant on each others and overlapping that reduces the ability to give expeditious measures - a requirement of eníbrcement procedure under the BTA Moreover, due to so many eníbrcement authorities, it seems that Vietnam gives priority to administrative measures rather than civil ones and the role o f courts' seemly be lookdovvn It causes the concem about the cleamess, stability and equality of enforcement as requirernents of the BTA The most disadvantage o f patent enforcement system, according to some specialists is the ability o f its staffs The number o f patent infringements handled by eníbrcement authorilies is smaller than that in fact and hardly have a inữinging act handled by court Almost enforcement authorities not have specialist o f IPR and they rely on the NOIP that in fact has been ovenvorked 3.3.3 Supportive organizations Supportive organizations for paíent protection has established in many countries for long time but in Vietnam, there are only organizations that supplement to patent protection, that is: ĩirstly, the specialist organizations supplying legal services including: law consult íỉrms and other IPR representative organizations (since 1990 and there is 27 o f such organizations up to now); Secondly, Vietnamese IP Association (established in 200072) These organizations have take important roles in supporting and helping patent holders establish, maintain and protect their rights (approximately 70% of applications to Vietnam has been applied by these organizations as representatives)73 and they themselves boosting up the using o f patent protection However, The number IPR specialists in Vietnam now is only about 150 in which the number o f patent specialists is not much and most o f them are concurrently in charge o f not only patent field but also some Others74 The Service o f these organizations is mainly representative for patent application, hardly have chance to taking part in patent trial Moreover, their Service is not geographically wide but mainly in big cities 72 M O S T , “ e n f o r c e m e n t o f in telectu al p r o p e r t y in V i e t n a m ” r c p o r t at th c N a t i o n a l C o n f e r e n c c o n e n f o r c e m e n t o f i n t e l l e c t u a l p r o p e r t y , H a n o i, S e p t e m b e r , 20 04 73 S u p r a n o t e 55 74 S u p r a n o t e 58 35 3.3.4 Patent in to rm a tio n centers These centers take an important role in balancing the interests of public, society and the right holders In Vietnam, there are now IP iníbrmation centers that is patent iníịrmation center, trademark information center and industrial design One that located in the NOIP The patent iníbrmation center is keeping 25 million patent descriptions In which the documents o f patent granted from 15-20 years to now are almost updated The Ho Chi M inh city Science-Technology Iníbrmation Center is keeping million patent documents and Danang Center is keeping million documents75 However, the system o f patent information o f Vietnam has still not deserved its values and the requests for it Firstly, this system is not m odem and unify The three centers have not established relation M ost o f patent iníịrmation is in microíĩches or microfilms, even the new documentary ones in form o f CD-ROM are still being exploited by off-line This situation causes difficulties in publishing, exploiting the technique iníịrmation contained in patent documents Secondly, the need for using patent information is not very high so, it makes the positive meanings o f patent protection be reduced It can be said that, the technique knowledge sources o f Vietnam now has not been utilized (it is approximately calculated that searching and using patent iníbrmation is only 1000 times/year) Furthermore, the technique used for aưanging and exploiting patent iníbrmation is so old The knowledge o f society about contents and meanings o f supplying patent informaiion activities is little Due to these above reasons, patent iníịrmation supplying activities have not deserved its role and met the requirements o f society S u p r a n o t e 55 36 Direction and solutions to enhance the implementation of international treaties on patent protection in Vietnam 4.1 Advantages and disadvantages challege Vietnam in implementing 4.1.1 Advantages The most advantage, in our opinion, is the guideline o f the Communist Party o f Vietnam and Government to take the initiative to join intemational economy This direction is written in the documents o f the Communist Party Conĩerence, especially, the document o f the 9th Conference affirmed: “take the initiative to join intemational economy in process that keeps pace with our condition and to ensure the implementation o f bilateral and multi-lateral commitments such as, the AFTA, APEC, The Bilateral Trade Agreement between us and Vietnam, reaching participation in W T O ” Following this guideline, Vietnamese Government boldly worked out programs in order to implement the above intemational commitments In the wake o f signing the BTA, the Chairman o f National Committee on International Cooperation, the Prime Ministcr Nguycn Manh Cam on August 22, 2000 requested Ministry of Justice to cooperate and ordinate with Ministries, branches, bodies to survey legal documents needing to be amended, supplemented or enacted in order to implement intemational commitments including the ones that related to patent protection On September 27, 2000, Minister o f Justice issued Decision No 285 establishing a Council to survey legal documents in the ííeld o f commerce with the view to see the reality o f the Vietnamese law system and then propose comprehensive solutions to perfect the law system December 18, 2001 the Prime Minister approved the result of this survey and empowered the Ministry of Justice to drafts Govemmental program on making, amending and supplementing law to submit Parliament in which give priority to the need for implementation o f the BTA and W TO’s agreements The Ministry was also assigned to join with other relevant ministries, branches, provincial committees to train law knowledge and ability to carry out law for their staff Recently (March 12, 2004), the Prime Minister has introduced a Decision on govemmental plan o f action to implement the BTA, in which eight basic solutions are given Hence, Vietnam has initiatively prepared conditions, especially legal condition, for the aim to implement the intemational commitments well Secondly, in the past years, especially aữer the 6th Conference o f the Communist Party in 1996, Vietnara socio- economy had signiíicant changes Law on patent protection is step by step fulfilled and it has had good effects on socio- economic and technology development in Vietnam The increasing o f the number o f patents granted by Vietnam and accompanied with that is experiecne o f making and practically implementing law on this íield has created advantages to perfect patent law in order to meet the request o f life 37 Thirdly, the present trend o f patent law harmonization, and IPR law as well, enables Vietnam to absorb experience on this íĩeld from other countries such as EU and other developed countries This means, the process o f implementing intemational commitments on patent protection o f Vietnam can get helps from other countries In fact, Swiss and Vietnam signed an Agreement on IPR in 2001 by which Swiss has had m any projects and activities to help Vietnam such as Capital to train intellectual property staffs, technique or sponsors for seminars on IP law 4.1.2 Disadvantages Besides the above advantages, the most disadvantage that I would like to mention herewith is the implementation o f provisions on eníbrcement o f patent rights and IPR as well At the first meeting o f the Committee on Vietnam- s economic and trade development held in Hanoi in May, 2002, the us partners showed their concem and worry about eníbrcement o f EPR, including patent in Vietnam Implementation o f provisions on enforcement o f patent rights is diffícult, in our opinion, due to the following reasons: Firstly, while many members o f the above treaties such as the u s , have a developed patent system, the patent system o f Vietnam was just started since 1980s76 and currently still lacks o f fmance, technology, manpower, knowledge and experience for patent protection and implementing intemational commitments on patent as well Secondly, the Vietnam patent law, especially enforcement provisions, as said above, is not update enough and cannot meet the requirements o f intemâtional commitments Besides, the organization, structure and work o f the institutions for patent protection, the awareness of public and the right- holder as well are very weak Thirdly, the lack o f professional knowledge on patent o f the staff of patent protection institutions is also a big diffículty causing inefficiency o f the enforcement system It is the vveakest point and the main reason for that is rooted from manpower as said by m any specialists M oreover, we should see that, implementing international treaties on patent protection m ay lead to some temporary negative affects on social life That are First, a strict mechanism for patení protection seems to limit the approaching of society and Vietnamese consumers to ranges o f goods and services, even affects social policies In the current situation, most patent granted by Vietnam are in the hand of foreigners Reports o f the NOIP said that, the average proportion o f patent applications o f Vietnamese from 1995 to 2003 only counts for 3.4 % o f the total number applied to Vietnam Moreover, the number o f granted patents of Vietnamese in this period is m uch lower (it only counts for 1.3 % o f the total granted patents)77 Therefore, most new technologies and Products are bom abroad or under the control o f íbreigners and the importation or exploitation are also controlled by patent rights The higher price team ing from the monopolization associated with the beginning stage o f the patent development If this situation happens with goods or special Products, it will affects s.ome social policies especially policies on enhancing living quality and health o f the masses One could not disagree with, though it may not sure, the say that the high 7,6 S u p r a n o t e 7M O S T , R e p o r t at national c onference on I P R cnforcem ent, H a n o i , N o v e i n b e r , 0 38 price o f phannaceutical imported products in Vietnam now is the directed results o f patent protection regime The second temporary affect o f patent protection with tight and high standards is to bring Vietnamese entrepreneurs and investors in a sophisticated legal environment and they are obliged to have expenditure for their usage o f patents though their competitive ability now is not strong Other subsequence is that strict patent protection can create inequality between big companies and small ones even among economies The report o f the NOIP said that from 1993 to 2003 the total number o f patent application o f Vietnamese to u s is 10 applications but that o f u s to Vietnam is 2470 applications78 It is the same in the relation vvith other countries and regions It may make an impression that Vietnam entities seem to have no chances to use patent protection regime o f others while its patent protection regime is utilized by íoreign entities with the bigger chances As mentioned above, obstacles and negative effects are temporary, and not basic: Taiwan and Korea are some typical examples for the success in limiting negative action, getting over difficulties and get the good achievements of the patent protection system These samples are the ground to believe that Vietnam will achieve in the future This means that we can get over the current diffículties to determine the next suitable steps for implementing intemational commitments on patent protection The process does not happen quickly and immediately, but it should keep pace with the economic development o f the country and therefore many current problems needing to be got over 4.2 Directíon and basic principles to enhance the implementation From the reality o f patent protection in Vietnam, advantages and đisadvantages in implementing the intemational commitments on patent protection hence my own view about the direction for the Corning time is that: continue to perfect patent law making it be compliance with requirements o f interaational treaties while have solutions to enhance the working efficiency o f patent protection institutions (and o f IP) as well as enterprises and the right holders This direction is ground for my own suggested solutions basing on the following basic principles: Firstly, All steps o f implementing intemational commitments on patent protection should throughly take the guideline o f the Vietnamese Communist Party and Government on initiatively integrating and implementing intemational commitments, developing technology and Science, enhancing protection and eníorcement o f IPR Secondỉy, It should keep pace with the economic development o f the country with regard to the transitional period o f these treaties Thirdly, It should balance the beneĩits o f the patent holders and public beneĩits Thereíbre, It should protect the right holders but it should take into account o f preventing their abuse Fourthly, ensure the harmonization between patent law, IPR law and others Hence, it needs to be inherited by using the regulations on patent protection o f the current laws 7S ld, p.24 39 that are suitable vvhile dismiss unsuitable points and consult models o f 1PR systems of other countries with necessary analysis selections 4.3 Solutions to enhance the implementation 4.3.1 To períect law on patent protection It needs to survey, systematically arrange and evaluate the current law on patent protection in light o f implementing intemational commitments in order to fmd and caưy out the following measures: 4.3.1.1 Short - term measures These measures include o f amending, supplementing the cuưent provisions on patent protection, especially provisions on enforcement First, immediately research and promulgate legal documents to unify the provisions on patent protection (for instance, to amend provision in Decree No 63/CP on the right of prior user to make it harmonize with the Decree No 06/CP; The point and of section 2TH, Circular 23/TC/TCT dateđ November, 1997 also needs to be amended by abolishing the discrimination between Vietnamese and íbreigners on charge and fee of patent right establishment and maintenance One more but not least immediate task is enacting regulations on the application form, examining procedure for biotech patent Second, as analyzed, enforcement provisions o f Vietnamese patent law seem s focus on administrative procedures rather than than civil ones and that is one o f the reasons causing ineffectiveness o f patent system and IPR as well So, the ĩirst important task is to amend these provisions, especially provisions on sanctions to iníringement in which give prominence to civil procedures Administrative sanctions should be subsanctions for civil ones and only applied when iníringement is over a civil one It also needs to provide in detail the conditions for applying this sanction to avoid abuse of administrative procedures Regarding civil sanctions, it is needed to ensured the principle o f satisíĩable compensation to the iníringed right holders and prevent the iníringer from iníringing activity Regarding criminal sanctions, it is need to reconsider the level o f sanction to make it become practical in Vietnam and harmonize with the intemational law meamvhile it is strong enough to protect the right holders 4.3.1.2 L o n g -te rm measures Amend the Civil Code (1995) following the trend o f separating the sixth section - IPR rights technology transfer from the Civil Code This means that, simultaneously with short-term measures, it needs to reorganize the system o f provisions on patent protection basing on an Act o f IPR 40 As said, the most backward of IPR law in general and patent law in speciíĩcally o f Vietnam is its unsuitable structure It is said by some Japanese specialists: IPR law rooted from the Civil Code is one of the weaknesses of the Civil Code79 Up to now, there are two ideas about where the IPR provisions should be rooted The fưst says that EPR law should be a part o f the Civil Code as present; the second says, IPR law should be an Act that separates from the Civil Code I agree with the second by the following reasons Firstly, the relation o f intellectual property including patent is civil ones that should be regulated by civil law but it also should be regulated by administrative law and criminal law, especially the relations o f intellectual property related to establishment the rights o f the holders (in fact it is administrative relation) or imposing sanctions to iníringers (by administrative, civil or criminal procedure) The present strưcture o f IPR law as a part o f the Civil Code leads to the situation o f promulgating so much sub-Civil Code documents that guiding the implementation o f the Civil Code (since many mentioned above relations could not be regulated by civil law for the nature o f the relation) So, provisions related to patent rights such as revocating, forfeituring patent, procedure to solve dispute are regulated by sub-Civil Code (Decree or Circular) though they should by regulated by provisions o f an Act Seconclly, reference from other countries shows that most o f them have an Act on IPR or a patent Act Moreover the question o f should Vietnam separate IPR law from the Civil Code by enacting an Act on IPR law or by enacting a single Act on each object o f IPR (such as a patent Act, a trademark Act) is still a debate The iater idea o f enacting a patent Act bases on the reason: patent differs írom any other oject o f 1PR Intellectual property relation is ílexible and ever-developing with its new objects For these reasons and from legal Science perspective with reference to model o f IP law of õther countries, enacting a patent Act will upgrade of effeciency o f patent law and the work o f amending or supplementing law on this íĩeld therefore is convineint for implement From m y point o f view, this idea is reasonable But as said, the process of perfecting patent law and IP law as well should keep pace with our condition and under guideline o f Communist Party and Government; This process should have a transitional period The hot problem now is not the very contents o f the law on patent (and IPR as well) because most o f them are considered compliance with the intemational requirements but the structure o f them So, in the present condition, an Act on IPR composes o f a section on patent is more reasonable than the ĩirst So the new model o f patent law, from my view, bases on an IPR Act Other Acts should keep only necessary and suitable provisions to regulate some speciíĩc aspects o f IPR This model may be drafted as follow: 79 M i n i s t r y o f j u s t i c e , “ G e n e r a l R e p o r t o f T h e S e m i n a r on M o t h o d o l o g y to A m e n d t h e C iv il C o d e ” , 0 , p 18 41 Table No 3: Vìetnam patent Iaw in ne\v Model 4.3.2 To enhance avvareness and activỉty to seif- protect the rights of the owners Patent right is private ownership Therefore, the owners should take initiative to protect their rights But what is a pity, the awareness o f the owners in protecting themselves is not enough Many cases o f infringement caused by the iníringers themselves had not known their act is illegal or the iníringed patent holders had not taken expeditions acts to establish or protect their rights To overcome this situation, the business and patent holders themselves need: First, actively update knowledge and iníbrmation about patent and initiatively cooperate with State authorities Second, to have at least One expert on IPR and if it is a cooperation or enterprises with great exporting capacity, it needs to have strategy on developing their intellectual property thereby they can self-protect their right well All these acts o f patent holders should be encouraged by State through law and policies on IPR, or through the very acts of the State authorities to make knovvn law on IPR to every business or to have projects to subsidize business and patent holders fee charge o f patent application and maintenance This activity should actually be taken by patent holders as in many countries but the current situation in Vietnam where the avvareness o f business and others about patent as said is not high hence it should be taken by State authorities In the year o f 2002, Department o f Science Technology and Environment o f Ho Chi Minh city as requested by the People's Committee caưied out a project to subsidize business in city to apply for patent right and IPR as well Such prọịect should be expanded to other provinces 42 4.3.3 To renew organization and improve capacity of institutions for patent protection 4.3.3.1 For State management bodies As said, patent management is resided in Patent Department o f NOIP - MOST Hence, to improve capacity and effectiveness o f State bodies o f patent, the whole system o f IPR protection should be improved reaching a model o f one State management body on IPR As said, the current management on IPR taken by two branches (MOST and MOCI) This model is so particular in the world but for the fact in Vietnam, it also has backwards as said before and to overcome that, the IPR management in the coming time should be authorized by one body that's responsible for both IP and Copyright management My reasons for this proposal base on: Firstly: Intellectual property is created and effects all fields o f socio-economy life though it is result of in the íield o f Creative activities agriculture, industrial or commerce and IPR law principle adjust all relations relate property o f intellect w ithout any discrim ination o f patent, tradem ark or Copyright It means, m anagem ent activity taken with all objects o f IPR basing on common principles So, one State body for IPR management will make this activities become professional and effective Secondly, at International level, there is no two offices separately for IP and Copyright Though basing on the Stockholm Convention or the Trips, IPR activity respectively is resided in WIPO or WTO Many countries tends to merge two branch, in one, such as Russia, Australia, Philippine, Thailand, Singapore, Laos 45 countries in the world have one body for IPR Thirdly, this model is also economical both in aspects of human power and Capital, especially for adm inistrative procedures Fourth, this model will simply and render more economical benefits the obtaining o f IPR protection especially when right holders desire to apply for more than one objects o f IPR For the above reasons, reorganizing the IPR State management bodies should centralize in one by merging the NOIP and NOCI into one that's responsible for IPR management as a whole Besides re-organizing, this body also needs the investment from the State for its Capital, staffs and technique 4.3.3.2 For State eníorcement bodies These bodies compose o f People's Court, People's Committee; IP inspectors; Market M anagement Office; Police; Custom In compare with other countries, this model is complicate since so many bodies are empowered to eníịrce IPR The reliance and unactiveness thereby o f them cause unexpendition o f enforcement not meet the requirements on eníịrcement o f the BTA To overcome this situation, I boldly to propose the following measures: First: Improve their capacity by training staffs, increasing the number o f their staffs and especially cooperate among them and between them and business as well as the other right holders in activity and exchange iníbrmation Second, re-organize these bodies by establishing one body responsible for administrative procedures This body should be IP Inspector Offíce which will receive claims and examine them then, propose sanctions and the authority that authorized to 43 impose sanction Administrative sanction should be imposed by authorized officers of the People's Committee, IP Inspector Office, or Market Management Bureau Economic Police should be authorized to investigate other than impose sanction By the above proposed measures, the eníbrcement o f IPR and patent right as well will meet the requirement o f the BTA that, "procedures conceming the eníbrcement o f intellectual property rights shall be fair and equitable They shall not unnecessary complicated or costly, or entail unreasonable time-limits or unwarranted delay" 4.3.3.3 For the supportive organizations Though Service for IPR protection in Vietnam started since 1990s but it generally has not met the requirement o f IPR protection and will be challenged in the process of joining intemational economy The backwards should be distinct by improving the present IPR Service net o f Vietnam The main hindrances o f Service for intellectual property o f Vietnam now caused by a thin net o f Service (with only about 150 specialists on IPR working in 27 IPR Service offíces80); their professional-skill and knowledge is not high In fact, patent consultants have knowledge o f law but not o f technique Moreover, most o f IPR firms are small ones with limited capacity o f both Capital and humanpovver So, these firms could not give high services and are in difficult to compete with foreign firms if they are permitted to supply IPR Service in the coming time To enhance the role and effícient o f this Service and as well as other supportive activities, Vietnam should: Firstly, increase the number o f Service staffs (consultants) and train them both law and technique knowledge Secondly, abolish unwaưanted business requirements for firms and services and allow consultant by his private capacity to supply this Service Besides that, the organization and activity o f Vietnam Industrial Property Association and Vietnam Intellectual Property Association should be stabilized and expanded 4.3.3.4 For patent information centers System o f patent iníbrmation in Vietnam now is mainly non-intercounective and the exploiters are mainly business but not much and not írequent Though a survey has not been carried but the following obvious reasons can be recognized: First\ The knowledge o f the researcher and user (patent information exploiters) about the value o f patent iníịrmation system is limit even some researchers and engineers have not known about the exist o f an information system in form other than books or technique review as they used to exploited History o f training and research in Vietnam has not custom of exploiting patent iníịrmation Second, patent iníbrmation is technical one and complexically presented by word or picture Hence, how to read and understand patent iníịrmation is obstacle o f the users since it is written in a language other than Vietnamese Thirdly, it is not convenient and becomes costly to exploit patent information since it is an off-line net and collected mainly in one center o f NOIP only For the Corning time, the system of IPR iníịrmation should be improved To improve its capacity, it needs to set up more iníbrmation resource centers in which patent iníịrm ation is adequately updated techniques and facilities for collecting, recording, exploiting especially internet should be utilized 80 S u p r n o t e 68 44 To improve effícient o f this system, it needs to increase the number o f exploiters by making it more accessible to every business and every One and thereíbre reduce infringement and costly investment 45 Conclusion The request for intemational economic integration obliges Vietnam to implement its commitments on patent protection to the intemational community That is also the request o f its intemal economic development Though the process o f implementing is challenging Vietnam with its difficulties and temporary negative effects but it also brings great opportunities to Vietnam in expanding commercial relations and perfecting law as well as institutions for patent protection Through theoretical research and analization with practical investigation and evaluation, the following conclusion can be seen First, the patent protection standards written in intemational treaties are ílexible but fairly high for many countries, including Vietnam These standards refer to all aspects o f protection such as: Subject matters, scope, term o f protection, enforcement The standards o f protection required by the BTA are basically based on the TRIPs with some necessary amendments and thereíbre, meeting these requirements is challenging Vietnam- a developing country desires to gain both new technology for development and economic integration meanwhile protect beneíĩts o f public in the transitional period Seconcl, the current Vietnamese patent law is generally compliance with the requirements o f intemational treaties except for its structure and some provisions, especially eníịrcement ones Besides that, organization and activity o f patent protection institutions are not effective enough to impỉement its intemational commitments on patent protection So the process o f implementing has both advantages and disadvantage Recognizing and precisely evaluating this fact to find out direction and solutions for this are necessary and urgent tasks Thircl, my paper tries to research and propose overall solutions basing on theoretical and practical analization with reference to idea's o f IPR experts and other models of IPR protection in light o f implementing intemational treaties guided by the direction o f the Vietnamese Communist Party and Government However, patent protection is a kiìOtty íield that affects all aspects o f socio-economic life meanwhile the requirements for implementation o f intemational treaties are strict and íĩrely high to Vietnam causíng potential problems during implementing This needs more time and more comprehensive research Therbre, I hopìỉlly to have and express my gratitude to all invaluable supports from vvhoever to this paper and to my coming study 46 Bibliography I/ encyclopedias The Oxíịrd English Dictionary (1993) Dictionary Center, the Vietnamese Dictionary (1999) II/ Boơks Anderson, Bentley J., and Gutter man, Alan s., Intellectual Property in Global M arkets (London, Boston: Kluwer Law International, 1997) Alan V Deardorff, Economic, 3th ed (University of Michigan, 1991) Hanoi law University, International law book 2nd ed (the National politic publisher, 2004) Brown lie, lan, Principles o f Public International Law, 5lh edition, (Clarendon: Oxford University Press, 1998) M inistry o f Justice, Legal documents on International law and Vietnam's relevant legal documents, (the National political publisher, Hanoi 1999) III/ Articles and Research papers Carlos M.Correa, “The GATT Agreement on Trade-Related Aspects o f Intellectual Property Rights: New standards for patent protection”, European Intellectual Property 1994 - D an Biers “As Vietnam Open Its Arms to Foreign Investors, Japanese, us Firms Take a Measured Plunge”, Asian Wali St.J.WKLY, Sept 5.1994 - D.Cohen, "Compulsory license” , Aworu Revievv Managing intellectual property, Issue 78, April, May 1991 - Harry Small, “the EEC Draft Directive on Rental Rights and other rights” Intellectual property Business, Vol 3, No.4 July/August 1991 Michael J.Scown, Vietnam has far to go to Nurture Investment, Asisan Wall At.J.WKLY; Nov.7, 1994 M OST, MOCI, Ministry o f Trade and Govemmental Staff Management Board, “Project No on renovating organization, mechanism and methods of intellectual property protection in the process of intemational economic integration”, part Annexes No 01, 2000 MOST, MOCI, Ministry o f Trade and Govemmental Staff Management Board, “Project No on renovating organization, mechanism and methods of intellectual property protection in the process of intemational economic integration”, 2002 M inistry o f justice, “General Report o f The Seminar on Methodology to Amend the Civil Code”, 2001 M OST, Report at national conference on IPR eníbrcement, Hanoi, November, 2004 - THEREA BEEBY LEWIS, “Patent protection for the Pharmaceutical Industry: A survey o f The Patent Laws o f Various Countries”, H ein0nline-30 Intellectual Property Law 835 (1996) 47 Keindaren, UNICE, "Basic Framework o f GATT Provisions on Intellectual property Statement o f Views o f the European, Japaneses and United States Business Communities" Intellectual Property Committee, 1988 IV/ Treaties Ageement on Trade-Related Aspetcs o f Intellectual Property Rights Bilateral Trade Agreement between The Socialist Republic o f Vietnam and The United State o f America Declaration 1970 o f the UN Paris Convention for Protection o f Industrial Property Patent Co-operation Treaty (PCT) WIPO Draft Treaty Supplementing the Paris Convention V/ List of statutes Circular 23/TC-TCT dated May 1997 o f the Ministry of Finance guiding the collection, payment and management o f IP charges and fees - Circular 825/2000/TT-BKHCNMT dated May, 3, 2000 o f the MOSTE guiding the implementation o f the provisions o f Decree 12/1999/ND-CP Circular 30/2003/TT-BKHCN dated December 5, 2003 guiding procedure for patent application o f invention and utility solution - Civil Code (1995) Criminal Code (1999 Custom Act (2001) - Decrce 63/CP/1996 dated October 24, 1996 guiding the implementation o f thc proVision of the Civil Code on IP Decree 06/2001/ND-CP dated February 1, 2001 amending and supplementing some provisions o f Decree 63/CP Decree 45/1998/ND-CP dated July 1, 1998 provides in detail about Technology transfer Decree 12/1999/ND-CP dated March 6, 1999 on administrative infringing activities o f IP Decree 54/2003/ND-CP dated May 19, 2003 provides the functions, duty, rights and organization of the MOST Decree 28/2004/ND-CP amending and supplementing European Patents Convention (EPC) -1973, Art 24 Ordinance on Innovation to effect technical improvements and Rationalizations in production and on Inventions, Jan 23, 1981 Oversea investment Act (2000) Patent Act, 35 u.s.c Science and Technology Act (2000) Trade Act (1997) Law on encouraging investment in Vietnam (1998) 48 Appendixes Appendix No: Procedure for patent application Apply Have correction 1ĩ \ incorrect form Ẹxam inĩorm ì w Request to correct No correction Deemed to be withdrawal Ái No claim 9ọ claim Inform refusal of acceptance cl aim NOIP MOST Deemed to be withdrawal No request for art Request for art examine examine Have correction Examine art Needs to be corrected No correction Request to * corrrect Deemed to be withdrawall No claim -Ọ & 0Q.3 Inform refusal of granting patent Claim Claim w w NOIP Bring to Court ctí £ m R^quest for fee No receipt of paid fee Grant patent Public granteđ patent 49 MOST ... plem enting international treaty oit pa ten t protection in Vietnam THE VIETNAMESE MECHANISM FOR PATENT PROTECTION IN LIGHT OF IMPLEMENTING INTERNATIONAL TREATIES 3.1 Lavv on Patent protection 3.1.1... on patent and institutions for patent protection in Vietnam 1.4 Thematic limitation As the title indicates, this thesis mainly íbcuses on exploring the fact of patent protection in Vietnam in. .. satisfy the standards of patent protection o f this treaty Overvievv of Patent and implementation of International Treaty on Patent Protection 2.1 Definition about Patent and Patent protection 2.1.1