Court System

Question 1
We understand that the National Office of Intellectual Property of Vietnam (NOIP) handles the invalidation procedures whereas Court handles the infringement cases. Please confirm if there was any change on this matter.

Answer 1
Please be advised that the NOIP is responsible for handling the invalidation petition.

In case of any disagreement with the Decision of the National Office of Industrial Property for an invalidation petition filed with the NOIP, the appellant shall have an option between filing an appeal to the Minister of Science, Technology (MOST), or bring the case to the administrative court in according to the applicable law of procedure in administrative cases.

In respect of the infringement cases, depending on the nature of the infringement, they may be handled under Administrative, Civil or Criminal Actions.

Courts are entitled to apply civil or criminal measures when handling the infringement cases while the Board of inspectorate in Science and Technology within the Ministry of Science and Technology and Department of the Ministry of Trade, Economic Police, Customs, and People committees are vested with the power to apply administrative measures.

Question 2
How efficient are the NOIP and courts in disposing IP litigation cases in Vietnam?

Answer 2
Only Courts are empowered to deal with all requests of the owner patent. However, court system is not efficient as there is no specialized court on IPRs, judges at Court are not so technically qualified and lacking of experience in industrial property cases, handling procedure is often extend beyond the prescribed time limit.

The handling made by the NOIP and other Administrative Authorities often takes place for a shorter time. In addition, the handling scope applies on a large scale, which is not restricted by the territory of each local and is consistent. Therefore it allows the patent owner to exploit tire patent effectively. However, these Authorities are limited to their empowerment. They have no empowerment but empowerment to handle cases under administrative measures. And they are not vested to determine any damages that a patent owner had to bear.

Question 3
Do the NOIP and courts rely on precedent cases decided in foreign countries?

Answer 3
No. The Vietnam law system is a written one and not rely on precedent cases.

Question 4
How are foreigners treated by the NOIP and court?

Answer 4
The foreigners are treated as Vietnamese nationals. In addition, they have rights to authorize 1P agencies and they are entitled to have their interpreters.

Question 5
What is the time frame for a patent invalidation/patent infringement suit to be decided in Vietnam?

Answer 5
Within 60-90 days form the date of receipt of the suit. However, in practice it can take much longer period of time, on the basis of case by case.

Question 6
How to appeal to a decision by the NOIP for patent invalidation and court for patent infringement?

Answer 6
In case of any disagreement with the Decision by the NOIP for a patent invalidation, the appellant shall have an option between a further appeal to the Minister of Science, Technology (MOST), or bring the case to the administrative court in according to the applicable law of procedure in administrative cases.

The appeal to MOST can be made within 30 days from the date of receipt of the notice of the decision of the NOIP. The Minister of MOST, based on proposal of the Inspection Board within the MOST, must issue a decision, within 45 to 60 days from receiving the appeal petition. The decision of the Minister is final.

In case the applicant decides to go to the Court, the competent Court shall be the People's Court (Administrative Court) of Hanoi, or Ho Chi Mini) City in case involved a foreign nationals, or local court having the local competence on the applicant. The Decision of the first instance Court shall be appealable to the People's Supreme Court. The Supreme Court's decision shall be final unless objected himself or by the Chairman of the People's Supreme Inspectorate. This procedure is also applied to appeal the decision of the court for patent infringement.

No comments:

Post a Comment