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Legislative Implementation of Flexibilities - Viet Nam

Title:Article 7(3) of the Law No. 50/2005/QH11 of 29/11/2005, on Intellectual Property as last amended by Law No. 36/2009/QH12 of 19/06/2009 and Articles 23a to 23c of the Government's Decree No. 103/2006/ND-CP of 22/09/2006, detailing and guiding a Number of Articles of the Law on Intellectual Property regarding Industrial Property as last amended by Decree No. 122/2010/ND-CP
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Article 7. Limitations on intellectual property rights

3. In the circumstances where the achievement of defense, security, people's livelihood objectives and other interests of the State and society specified in this Law needs to be guaranteed, the State may prohibit or restrict the exercise of intellectual property rights by the holders or compel the licensing by the holders of one or several of their rights to other organizations or individuals under appropriate terms. The limitation on rights to inventions classified as state secrets complies with regulations of the Government.

Decree No. 103/2006/ND-CP of 22/09/2006

Chapter IIIa. CONFIDENTIAL INVENTIONS

Article 23a. Confidential inventions; protection titles of confidential invention; contents of and limitations on rights to confidential inventions

1. Inventions that are classified by competent state agencies as state secrets in the field of national defense and security under laws and regulations on protection of state secrets are referred to as confidential inventions.

2. Confidential inventions shall only be granted confidential invention patents or confidential utility solution patents.

3. Confidential invention applications, confidential invention patents and confidential utility solution patents may not be disclosed and must be kept confidential under laws and regulations on protection of state secrets.

4. The utilization and licensing of confidential inventions and the assignment of the right to file applications and the right to own confidential inventions must be permitted by competent state agencies under laws and regulations on protection of state secrets.

5. The Minister of Public Security and the Minister of National Defense may utilize or assign organizations or individuals to utilize confidential inventions for the national defense or security purposes under Articles 145.146 and 147 of Law on intellectual Property.

6. After a confidential invention is disclosed by a competent agency under laws and regulations on protection of state secrets, its application and protection title shall be handled as follows:

a. The confidential invention application shall be further processed like a normal invention

application;

b. The confidential invention patent or confidential utility solution patent shall be converted into a normal invention patent or utility solution patent, and published in the Industrial Property Official Gazette, as well as recorded in the National Register of Inventions.

Article 23b. Security control of inventions before filing for protection overseas

1. Vietnamese organizations and individuals shall only register their confidential inventions in countries in which laws and regulations on protection of confidential inventions are available and shall seek permission from competent agencies in accordance with Clause 2, Article 23c of this Decree.

2. Inventions of Vietnamese organizations and individuals and inventions created in

Vietnam shall not be protected by Viet Nam if the applications of those inventions thereof have been filed for industrial property protection overseas in contravention of the following provisions on security control:

a. Applications for industrial property protection shall only be filed overseas when patent applications have been filed in Vietnam and the time limit of 6 months from the filing date has expired, except cases specified at Point b of this Clause;

b. The filing of applications for industrial property protection overseas is not allowed if inventions are classified confidential under laws and regulations on protection of state secrets and is communicated by competent agencies about that.

Article 23c. Identification and disclosure of confidential inventions; establishment and transfer of rights to confidential inventions

1. The identification and disclosure of confidential inventions shall be conducted by the Ministry of National Defense and the Ministry of Public Security under laws and regulations on protection of state secrets.

2. The Ministry of Public Security shall assume the prime responsibility for and coordinate with the Ministry of National Defense and the Ministry of Science and Technology in specifying procedures for identification and disclosure of confidential inventions; protection of confidential inventions; procedures for examination of applications and grant of confidential invention protection titles; management of utilization, licensing of confidential inventions, and overseas registration of industrial property protection of confidential inventions in accordance with laws and regulations on protection of state secrets and laws and regulations on intellectual property.

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