Patent Protection under the Patent Cooperation Treaty

Patent Treaty, and also study and evaluate these provisions in the laws of the two countries with the most developed patent protection systems today, the United States and Japan.

Chapter III. Patent protection practices under the Patent Cooperation Treaty in some countries and in Vietnam - the issue of perfecting current regulations in Vietnamese law.

In this chapter, by presenting the current status of patent protection in general and patent protection under the Patent Cooperation Treaty in particular in an inseparable general system of intellectual property protection in Vietnam along with the requirements of socio-economic development, the thesis presents the development trend of intellectual property protection in general, including patent protection. Thereby, it proposes a number of recommendations and solutions to improve Vietnamese law on patent protection in particular and on intellectual property in general.

Due to limited time and limited ability of a student, the thesis inevitably has shortcomings and omissions. The author hopes to receive comments from experts, teachers and friends.

The author would like to sincerely thank Associate Professor, Dr. Doan Nang, Director of the Department of Legal Affairs - Ministry of Science and Technology for his dedicated guidance and insightful comments during the thesis writing process, as well as the Department of International Law, Faculty of Law - Vietnam National University, Hanoi, Vietnam Intellectual Property Office, INVENCO Company, teachers and friends for creating favorable conditions to help complete this thesis.

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Chapter I:

OVERVIEW OF THE PATENT COOPERATION TREATY

1.1 Overview of patent protection issues

Through documents of the World Intellectual Property Organization (WIPO) and through studies on the formation and development of intellectual property rights in countries around the world, it can be seen that since the Middle Ages, along with the development of productive forces, the form of "privilege" granted by kings to inventors to encourage the creation of new technology. In many cases, the "privilege" [1] that the inventor receives is the exclusive right to exploit the invention he created in

a certain period of time. That was the precursor of the patent protection system. The form of "privilege" for inventors was applied quite commonly in European countries from the 12th to the 16th century. In 1474, in Italy, there was a law that stipulated that whoever created a new device would have the exclusive right to manufacture that device for ten years and strictly prohibited anyone from imitating it without the permission of the inventor.

By the end of the 16th century, the feudal form of granting “privileges” had proven to be incompatible with the development of production relations as well as productive forces at that time. It had become a means of profit for the authorities and a factor hindering free competition in the pre-capitalist period.

In 1623, the British Parliament passed the Monopoly Act, which abolished all forms of monopoly except patents. The granting of a patent to anyone who created an invention was an exercise of civil rights, not a royal bounty. This Act is considered the first legal document, initiating the patent system in England and other European and American countries. Following England were the following countries: America (1790), France (1791), Belgium.

[1] Dr. Le Xuan Thao (2005), Innovation and improvement of intellectual property law - Justice Publishing House, Hanoi.

(1854), Italy (1859), Russia (1870), Germany (1877) successively promulgated their patent laws. By the end of the 19th century, 45 countries had enacted patent laws, and today that number is nearly 180 countries. Along with the formation and continuous improvement of the legal system, national industrial property agencies have been established to receive applications, examine and grant patents on behalf of the state. The court system is directly involved in resolving disputes and violations to protect the rights of patent owners.

In addition to the form of patent, some countries under the former socialist system and some developing countries also apply the form of granting patent authorship certificates. In this case, the invention is considered to be owned by the state. When the invention is granted a patent authorship certificate and published, any state agency has the right to use it and is obliged to pay a reward to the author according to the provisions of law.

This form is considered a form of industrial property protection and is encouraged to be applied. It is suitable for the centrally planned economy and has made certain contributions to the economic and scientific and technological development of those countries. However, since the transition from a centrally planned economy to an economy operating under a market mechanism, this type of protection is no longer suitable. This type of protection will eliminate the motivation for inventors to innovate and create new technologies. Only the form of protection by exclusive patents can encourage them to develop their talents and intelligence and be paid fairly. In a market mechanism, this law must be completely replaced by a system of exclusive patents. In parallel with patent protection, many countries also apply protection for small inventions, also known as utility solutions, and protect industrial designs according to the same principles as patent protection.

The content of patent protection can be summarized as follows: Anyone who creates an invention that meets the standards prescribed by law can

When submitting an application for state protection, the application must fully disclose the nature of the invention. When the invention meets all the standards, the state will declare exclusive protection for that invention by granting a patent to the applicant; the patent is only valid for a certain number of years. During the validity period, the invention belongs to the person granted the patent. The owner of the patent has the exclusive right to exploit and use the invention and prohibits anyone else from using and exploiting the invention without the permission of the patent owner. The exploitation and use of the invention by another person without the permission of the patent owner is considered an act of patent infringement and will be handled by law. After the validity period of the patent expires, the invention will be owned by the public, and anyone has the right to use the invention.

The above patent protection is established on the basis of certain principles, specifically the principle of technological exclusivity, the principle of technological disclosure and the principle of trade-off [2] .

The first is the principle of technological monopoly. The content of this principle is that whoever creates a new technology or a product that can be applied industrially has the right to possess and exclusively exploit (apply, produce, and circulate) that technology or product. Those who do not create or create after the technology or product already belongs to someone else are not allowed to exploit it without the permission of the exclusive holder.

The second principle is the principle of technology disclosure. According to this principle, the holder of a technology monopoly is obliged to disclose the technological content to the society and the scope of the monopoly is limited only to the published content. This principle plays an important role in promoting technological development through patent protection. Content disclosure

[2] Dr. Le Xuan Thao (2005), Innovation and improvement of intellectual property law - Justice Publishing House, Hanoi.

The above mentioned technology, on the one hand, declares that the technology is a monopoly of one person, on the other hand, it is also an announcement of the solution to an existing technological problem. In this way, a technological monopoly is established, the technological knowledge of society is partly renewed, and at the same time, society does not have to spend effort, time, and money to search for technologies that have been discovered, a common situation that is very easy to encounter in cases where new technologies are kept secret. The third principle is the principle of trade-off. This principle is also known as the principle of contract, according to which technological monopoly is not a type of natural right, meaning it does not arise automatically, does not exist forever. On the contrary, technological monopoly only arises and exists under certain conditions. Those conditions are set by law so that under such conditions, the exclusive possession of technology not only does not go against the common interests of society but also encourages technological competition, promotes technological improvement, and creates inventions. In other words, those are the conditions that trade off giving

and between the state - the representative of society and the monopoly holder.

The above conditions show that in order to have a monopoly over a certain technology, the person intending to possess it must prove that the technology meets certain criteria (usually novelty, creativity and industrial applicability) and publicize the content of that technology. In return, the state recognizes the monopoly of the person possessing the technology for a certain period of time (usually from 15 to 20 years). During that period, the law protects the said monopoly against any infringement by a third party. After the above period, the monopoly automatically disappears and the corresponding technology becomes the property of the whole society. The recognition of the monopoly is carried out by the state granting a monopoly certificate to the monopoly owner, which shows the technology and the validity period of the certificate. At the same time, the content of the technology is also widely publicized. Thus, the patent is a contract between the state and its owner. According to

According to this principle, monopoly only arises on the basis of a monopoly certificate. The person who creates the technology but does not apply for a monopoly certificate, that is, does not want to participate in the contract, cannot monopolize that technology.

An invention is generally defined as a solution to a specific problem in a field of technology. The applicant for a patent is usually the inventor or his legal successor. To obtain a patent, the applicant must file a patent application with an industrial property agency in accordance with the law.

For an invention to be protected by a patent, it must provide a new solution to a technical problem, involve an inventive step and be capable of industrial application. An invention is considered new if it was not known to others and could not have been known before the date of the patent application. That is, the invention was not known in the prior art. Prior art includes everything that has been made available to the public, anywhere in the world, by means of visible or oral publication, or used in any form, before the filing of the patent application.

An invention is considered to have an inventive step when it is not obvious to a person with average skill in the art. In other words, the invention must represent an inventive advance and not be obvious compared to the current state of knowledge. The requirement that the invention be capable of industrial application excludes from the scope of protection purely theoretical inventions that cannot be applied in practice. The concept of industrial applicability implies that the invention must be applicable to production on an industrial scale.

A patent application is examined by the relevant registration office to ensure that it satisfies the formal requirements for registration. The application may then be examined on its merits. For example, the Registration Office may look up

Searching the patent literature of other countries, technical journals and other publications to ensure that the applicant's invention has not been previously disclosed. Some countries limit prior art to national disclosure, prior use and prior oral disclosure.

The application is usually published before the patent is granted. Third parties have the right to object to the grant of a patent. After examining the application as to form and content and considering the objections, the registration authority will decide whether to grant the patent. The grant of the patent will be published in the Official Gazette.

In some countries around the world, not all inventions are protected. For reasons of national interest, many countries refuse to protect inventions in agriculture, food, medicine, pharmaceuticals, nuclear technology and computer technology. Some countries also argue that protection only applies to inventions of a technological nature, and therefore will not protect advances related to disease treatment methods as well as plant and animal varieties.

The above is a brief presentation of the history and formation process of patent protection. With the above analysis of patent protection, businesses can easily see the benefits of patent exclusivity. Firstly, through this exclusivity, businesses can prevent others from using the protected invention for commercial purposes, thereby reducing competition and bringing great advantages to the patent owner in the market. If the patent owner does not exploit the invention himself, he can sell or transfer the commercialization rights of the invention to another business. This will also bring in a significant source of income, especially when this transfer is carried out internationally. Owning patents will also bring a positive image to the business. The

Business partners, investors and shareholders may perceive patent portfolios as evidence of a company’s expertise, specialization and technological capabilities. This can be useful in raising investment capital, finding business partners and increasing the company’s market value. At the same time, owning patents will also help businesses increase their bargaining power – an important activity in any business. If a business is in need of using an exclusive patent of another business through a licensing contract, the company’s patent portfolio will increase its bargaining power.

With the above benefits, it is undeniable that in the context of economic globalization, it is understandable that businesses want to protect an invention in many different countries. When starting a business in a new region or country, owning a number of exclusive patents in that country will bring a clear advantage to the business.

However, to be protected abroad, it is usually necessary to be granted a patent by the state of that country. This creates difficulties, complications and costs for patent owners. To facilitate patent owners, countries seek to build a mechanism in which an invention can be filed for protection in one place but considered for a patent in many places. And that need leads to the birth of an international treaty related to patent protection.

- Patent Cooperation Treaty.

1.2 The formation, completion and purpose of the Patent Treaty

1.2.1. The formation and completion process of the Patent Cooperation Treaty