Decree No. 122/2010/ND-CP amends and supplements certain articles of Decree No. 103/2006/ND-CP dated September 22, 2006, of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law on industrial property.

DECREE

Amending and supplementing certain articles of Decree No. 103/2006/NĐ-CP

dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law concerning industrial property

Pursuant to the Intellectual Property Law dated November 29, 2005, amended and supplemented on June 19, 2009;

_______________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Considering the proposal of the Minister of Science and Technology,

Article 1. Amending and supplementing certain articles of Decree No. 103/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law concerning industrial property

DECREE:

1. Amending Point h Clause 2 Article 3 as follows:

“h) Managing geographical indications belonging to localities, including place names and other signs indicating the origin of local specialties;”

2. Amending Clause 3, Clause 4 and supplementing Clause 5 Article 19 as follows:

“3. The Ministry of Agriculture and Rural Development and the Ministry of Industry and Trade shall take the lead and coordinate with the People's Committees of provinces and centrally governed cities to determine types of specialties, characteristics of products, and production processes for specialties bearing geographical indications within their management scope.

4. The People's Committees of provinces and centrally governed cities shall submit applications for registration and organize the management of geographical indications for local specialties and grant permission for the registration of certification marks for place names and other signs indicating the geographical origin of local specialties.

5. The Ministry of Science and Technology shall prescribe criteria for determining place names and other signs indicating the geographical origin of products.”

3. Supplementing Chapter IIIa as follows:

“Chapter IIIa. SECRET INVENTIONS

Article 23a.

Secret inventions; certificates of protection for secret inventions; contents and limits of rights over secret inventions 1. An invention determined by a competent state agency to be a state secret in the field of national defense and security according to the law on protecting state secrets is called a secret invention.

2. A secret invention can only be granted a Certificate of Exclusive Right to a Secret Invention or a Certificate of Exclusive Right to a Secret Utility Solution.

3. Applications for registration of secret inventions, Certificates of Exclusive Right to Secret Inventions, and Certificates of Exclusive Right to Secret Utility Solutions shall not be published and must be kept confidential according to the law on protecting state secrets.

4. The use and transfer of the right to use secret inventions, the transfer of the right to file applications, and the ownership of secret inventions must be approved by a competent state agency according to the law on protecting state secrets.

5. The Ministers of Public Security and National Defense may use or assign organizations and individuals to use secret inventions for national defense and security purposes as stipulated in Articles 145, 146, and 147 of the Intellectual Property Law.

6. Even after a secret invention has been declassified by a competent authority according to the law on protecting state secrets, the application and certificate of protection for the secret invention shall be handled as follows:

a) The application for a secret invention shall continue to be processed as an ordinary invention application;

b) The Certificate of Exclusive Right to a Secret Invention and the Certificate of Exclusive Right to a Secret Utility Solution shall be converted into a Certificate of Exclusive Right to an Invention and a Certificate of Exclusive Right to a Utility Solution, respectively, and published in the Industrial Property Gazette and recorded in the National Register of Invention Patents.

Article 23b.

Security control over inventions before registering abroad. 1. Organizations and individuals in Vietnam may only apply for the registration of secret inventions in countries that have provisions for protecting secret inventions and must obtain approval from a competent authority as provided for in Clause 2 Article 23c of this Decree.

2. Inventions of organizations and individuals in Vietnam and inventions created in Vietnam will not be protected by the Vietnamese State if they have filed applications for the protection of intellectual property rights abroad contrary to the following security control regulations:

a) Applications for the protection of intellectual property rights abroad may only be filed after filing an application for an invention patent in Vietnam and after six months from the date of filing such application, except in cases provided for in point b of this clause;

b) Applications for the protection of intellectual property rights abroad may not be filed when an invention is determined to be a secret invention according to the law on protecting state secrets and a notification has been issued by a competent authority.

b) Shall not file an application for industrial property protection abroad when the invention is determined to be a state secret invention under the law on the protection of state secrets and there has been a notification from the competent authority.

Article 23c. Determination of secret inventions and declassification; establishment and transfer of rights to secret inventions

1. The determination of secret inventions and declassification shall be carried out by the Ministry of National Defense and the Ministry of Public Security in accordance with the laws on state secrets protection.

2. The Ministry of Public Security shall take the lead and coordinate with the Ministry of National Defense and the Ministry of Science and Technology to prescribe procedures for determining secret inventions and declassifying secret inventions; protecting secret inventions; examination procedures and issuance of certificates of protection for secret inventions; management of the use, transfer of rights to secret inventions, and registration of industrial property rights for inventions abroad in compliance with the laws on state secrets protection and intellectual property rights.

4. Amend and supplement Article 29 as follows:

Article 29. Issuance and Revocation of Professional Practice Certificate for Industrial Property Representation Services

1. The professional practice certificate for industrial property representation services shall be issued to individuals who meet the conditions stipulated in Clause 2 of Article 155 of the Intellectual Property Law upon their request after paying the prescribed fees and charges.

2. The professional practice certificate for industrial property representation services shall be revoked in the following cases:

a) The holder of the professional practice certificate for industrial property representation services ceases to engage in industrial property representation activities;

b) The holder of the professional practice certificate for industrial property representation services no longer meets the conditions stipulated in Clause 2 of Article 1565 of the Intellectual Property Law;

c) The holder of the professional practice certificate for industrial property representation services has had their right to use the professional practice certificate revoked according to the decision of the competent state agency.

3. Consideration of requests for reissuance of the professional practice certificate for industrial property representation services after revocation under Point c of Clause 2 of this Article shall only be conducted after the period during which the right to use the professional practice certificate was revoked has ended.

4. The Ministry of Science and Technology shall organize the issuance and revocation of the professional practice certificate for industrial property representation services.

5. Supplement Article 29a as follows:

“Article 29a. Recording and Removing Names of Organizations Meeting Conditions for Engaging in Industrial Property Representation Services Business

1. Organizations meeting the conditions stipulated in Article 154 of the Intellectual Property Law and detailed in Clauses 2, 3, and 4 of this Article shall be recorded as organizations engaging in industrial property representation services business in the National Register of Industrial Property Representatives and published in the Industrial Property Gazette at the organization's request after paying the prescribed fees and charges.

2. The organizations referred to in Clause 1 of Article 154 of the Intellectual Property Law include:

a) Enterprises established and operating in accordance with the Enterprise Law;

b) Cooperatives and cooperative unions established and operating in accordance with the Cooperative Law;

c) Legal service organizations established and operating in accordance with the Lawyer Law, except branches of foreign legal service organizations, limited liability law firms with foreign investment, and joint ventures between Vietnamese legal service organizations and foreign legal service organizations;

d) Scientific and technological service organizations established and operating in accordance with the Science and Technology Law.

3. Branches and other dependent units of the organizations specified in Clause 2 of this Article may only engage in industrial property representation services business under the name of the organization they depend on.

4. The legal representative of an industrial property representation services organization or a person organized by the legal representative of the organization to conduct industrial property representation services business must meet the conditions for practicing industrial property representation services stipulated in Clause 1 of Article 155 of the Intellectual Property Law.

5. An industrial property representation services organization shall have its name removed from the National Register of Industrial Property Representatives and the removal shall be published in the Industrial Property Gazette in the following cases:

a) The industrial property representation services organization ceases to engage in industrial property representation services business;

b) The industrial property representation services organization no longer meets all the conditions stipulated in Article 154 of the Intellectual Property Law.

6. Supplement Paragraphs 2a, 2b, and 3a of Article 36 as follows:

"2a. Applications for industrial property rights submitted to the National Office of Intellectual Property from July 1, 2006 to September 30, 2010 shall be processed in accordance with the Intellectual Property Law 2005 and the guiding documents for implementation.

2b. Applications for industrial property rights submitted to the National Office of Intellectual Property from January 1, 2010 shall be processed in accordance with the amended Intellectual Property Law 2009 and the guiding documents for implementation.

3a. The National Office of Intellectual Property shall issue a Certificate of Registration for Geographical Indication for product origin names that have been registered in accordance with the provisions on geographical indication registration in the Intellectual Property Law. All rights and obligations of subjects concerning product origin names shall be applied in accordance with the provisions on geographical indications in the Intellectual Property Law."

Article 2. Effective Date

This Decree takes effect from February 20, 2011.

Article 3. Responsibility for guiding implementation

1. The Minister of Science and Technology shall guide the implementation of this Decree.

2. The Ministers, Heads of ministerial-level agencies, Heads of governmental agencies, Chairpersons of People's Committees of provinces and centrally governed cities shall be responsible for implementing this Decree./.