Some knowledge about Limitations and infringements to Patent Rights in Vietnam
1. Limitationsto patent rights.
Patent rights as mentioned above are subject to certain limitations as mentioned below:
An individual or entity that, prior to the publication date of the patent application, had used the invention, utility solution independently of the patentee, shall have the right to continue the use after the patent is granted. However, the prior user can not extend the scope or increase the volume of use compared with the use prior to the publication date of the application. Prior user's right can not be transferred.
The Ministry of Science and Technology (MOST) may grant a compulsory license in the following circumstances:
- The patentee fails to use the patented invention, utility solution, or used but not compatible with the socio-economic development of Vietnam, without any justifiable reasons;
- The person willing to use the invention, utility solution has tried by every means to negotiate with the patentee with a reasonable price to enter a license but failed;
- The use of the patented invention, utility solution is to serve the demands of national defense and security, prevention and treatment of human disease or other urgent needs of the society.
- The licensee of a compulsory license shall have to pay the patentee a certain amount of royalties as specified in the decision of granting compulsory license from the MOST.
- The following cases are also not covered by the patent rights:
- The use is not for commercial purposes;
- The circulation and use of the products that are sold or marketed by the patentee, his assignee or licensee or a prior user;
- The use of the patented invention or utility solution on foreign means of transportation which are in transit or temporarily located in the territory of Vietnam and such use is only for the purpose of maintaining the operation of such means.
2. Act of patent infringement in Vietnam.
The following acts, committed without the consent from a patent holder, shall constitute a patent infringement:
(i) Manufacturing products using a patented invention or utility solution;
(ii) Using, importing, advertising or circulating products that have been manufactured using a patented invention or utility solution; and
(iii) Applying patented process in Vietnam.