Legal Practice in VIETNAM

1. Patentability Search

Patentability search, also known as a novelty search, helps determine whether an idea is novel and involves an inventive step (non-obvious). The most comprehensive searches cover all types of prior art, giving inventors or organizations a clear view of the technology landscape. A patentability search should ideally be conducted during the ideation phase and prior to public disclosure.

A patentability search involves examining published patents related to your invention to assess whether the idea has already been patented. It also allows you to identify similar inventions, enabling refinement and improvement while avoiding potential infringement. This process can save significant time and cost before investing further in an idea that may not be patentable.

2. Freedom to Operate Search

A freedom to operate search (FTO) assesses how similar your product is to existing patents and evaluates the likelihood of infringing a patent by making or marketing your invention. This search is also referred to as a patent infringement search or right-to-use search.

Conducting an FTO search early in the innovation cycle helps research and development teams design around existing patents. Later, the results may indicate whether you need to obtain licenses from other patent holders to commercialize your product.

3. State of the Art Search

A state of the art search, also known as a patent landscape or product clearance search, examines the literature related to a specific industry or broader field. This type of search helps businesses identify competitors, track existing products, and gain market insights. Such knowledge supports informed strategic decisions throughout the innovation process.

4. Invalidity Search

An invalidity search, also known as a validity search, evaluates the strength of an existing patent. Companies conduct this search to determine whether the patent owner can legitimately enforce infringement claims. It may also be used to negotiate licensing fees or assess patent value. If prior undiscovered art is found during the search, the patent may be invalidated or deemed unenforceable. This search is typically performed after the patent has been granted.

5. Evidence of Use Search

An evidence of use search helps patent owners identify products that potentially infringe their patent rights. This search involves reviewing similar patents and gathering proof that a patent is being used in a way that infringes on the owner’s rights. Evidence of use searches are generally conducted after a patent has been granted and as it matures.

6. Search Databases

Patent searches can be conducted using various databases. Some databases are freely available, such as USPTO, Google Patents, Free Patents Online, and Espacenet. Others, including Thomson Innovation, Orbit, and Patbase, require a subscription. Each database differs in aspects such as data coverage, search engine features, and user interface.

Some of the most widely used databases include:

• Google Patents: A user-friendly patent search tool powered by Google’s search engine.
• Patentscope: A free database provided by the World Intellectual Property Organization (WIPO).
• USPTO Database: The official database of the United States Patent and Trademark Office.
• Espacenet: A European patent database maintained by the European Patent Office (EPO).

Additional major patent office databases include:

• Canadian Patents Database (CIPO)
• DEPATISnet (DPMA)
• JP-PlatPat (JPO)
• U.S. Patent Assignment Database (USPTO)
• U.S. Patent Center (USPTO)

Inventors or applicants may choose to perform their own patent searches. They often have an advantage in understanding the technical field, common knowledge among skilled practitioners, and relevant terminology.

Patent drafting is a critical step in the patent application process, involving the preparation of the patent description and claims. It forms the foundation of every patent application, as the drafted specification becomes an integral part of the official patent document once the patent is granted. The quality of a patent draft directly influences how effectively the invention can be protected and enforced against third-party challenges.

Patent applicants—especially startups, SMEs, and individual inventors—should recognize that a well-crafted patent specification and precisely worded claims help establish clear boundaries of protection. This clarity makes it easier to defend the patent’s validity and scope in case of disputes or legal challenges.

A standard patent specification typically includes the following sections:

• Field of Invention: Describes the general technical field to which the invention belongs.
• Background: Discusses existing technologies (prior art) related to the invention and highlights their limitations or shortcomings.
• Summary of Invention: Presents the objectives of the invention, its distinguishing features and advantages, and a concise explanation of the solution provided.
• Brief Description of Drawings (if applicable): Provides a short description of any accompanying drawings, offering an overview of what each drawing illustrates.
• Detailed Description of Invention: Offers a comprehensive explanation of the invention’s features. This section must be written clearly enough that a person skilled in the field can reproduce the invention based solely on this description. It should fully support all claimed features and describe their interrelationships.
• Claims: The most critical part of the specification, claims define the scope of legal protection. Claims are categorized as independent or dependent. Every patent application must include at least one independent claim. Claims may be amended during the examination process, often becoming narrower than initially filed.
• Abstract: A brief technical summary of the invention, intended to facilitate searches for similar inventions. The abstract is published alongside the patent application and, if applicable, a representative drawing.
• Drawings (if any): Illustrations prepared in compliance with jurisdiction-specific requirements. Drawings are submitted as separate sheets to accompany the specification.

It is essential to educate SMEs, startups, and inventors on the importance of high-quality patent drafting as part of their broader intellectual property strategy. A poorly drafted patent may be vulnerable to invalidation or opposition, significantly weakening its protective value. By investing in professional drafting expertise, inventors can maximize the legal and commercial strength of their patents.

An opposition proceeding is an administrative process available under the patent law in many jurisdictions, allowing third parties to formally challenge the validity of a pending patent application (pre-grant opposition) or a granted patent (post-grant opposition).

Once the patent application is published, an opposition may be filed within a specific time period prescribed by the applicable law. The opponent must state the grounds for opposition and provide any relevant evidence. If no opposition is filed during this period, the substantive examination of the patent will proceed.

Meanwhile, an applicant whose patent claims have been twice rejected may appeal the examiners’ decision to IP Vietnam, provided they have paid the required fee for such an appeal.