INFRINGEMENT OF INVENTION RIGHTS, HOW TO DETERMINE?

Invention means a technical solution in the form of a product or process which is intended to solve a problem by application of natural laws. Industrial property rights to invention (or ” invention rights”) are established on the basis of a decision to grant a protection title by a competent state agency according to the registration procedures prescribed by Vietnamese intellectual property laws or recognition of international registration according to international treaties to which the Socialist Republic of Vietnam is a member. So, how can infringement of invention rights be determined?

1.        Conditions for establishment of invention ownership

a.        Issuance of invention protection title

An invention shall be eligible for protection in the form of the grant of an invention patent when it satisfies the following conditions:

–           It is novel;

–           It is of an inventive nature;

–           It is susceptible of industrial application.

Unless an invention is common knowledge, it shall be protected in the form of the grant of a utility solution patent when it satisfies the following conditions:

–           It is novel;

–           It is susceptible of industrial application.

b.         Conditions of  invention to be protected

Regarding the novelty, an invention is recognized if it does not fall into one of the following cases:

–           It is publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application.

–           It is disclosed in another invention registration application which has an earlier date of submission or priority date but is announced on or after such date.

Regarding level of invention, inventions are considered to be inventive based on technical solutions that have been publicly disclosed in the form of use or written description or in any other form at home and abroad prior to the submitting date or the privilege date of the invention application if those applications entitled to privileges; or the invention is an innovation and cannot be easily created by a person with average knowledge about the corresponding technical field.

Regarding industrial application, an invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.

>> TRADEMARK INFRINGEMENT, HOW TO DETERMINE? https://linconlaw.vn/trademark-infringement-how-to-determine/

>> OUTWARD INVESTMENT REGISTRATION CERTIFICATES https://linconlaw.vn/outward-investment-registration-certificates/

2.        Infringement elements of invention rights

Infringe elements  on invention rights can be of one of the following types:

–           The product or product part (part) is identical or equivalent to the product or product part (part) within the scope of patent protection;

–           The process is identical or equivalent to a process within the scope of invention protection;

–           The product or part (part) of the product is manufactured by a process identical or equivalent to a process within the scope of invention protection.

Note, the basis for determining the element that infringes the rights to an invention is the scope of invention protection determined according to the Invention Patent, Utility Solution Patent or an extract from the National Register on industrial property.

3.        Handling violations of invention rights

Violations of rights to invention patent may be subject to a maximum fine of up to VND 250,000,000, accompanied by an additional penalty of partial or complete suspension of production and trading of goods in violation for terms 01 month to 03 months; with additional sanctions such as being forced to return illegal profits obtained from committing violations.