Formality examination

All industrial Design applications shall be examined as to formality by the NOIP. It takes one (01) month from the filing date for the NOIP to check whether the application (i) is made in conformity with the prescribed formalities; (ii) contains all the documents concerned (iii) satisfies the unity of the application as well as to see if the design under the application falls into non-patented designs.

During the formality examination period, the applicant may make amendments or additions to the documents of the application, but may expand the scope of protection or change the design sought for protection.

Notification of shortcomings

Deadline to file response for NOIP’s notification of shortcoming is 02 months since the date of signing the Notification.

Publication of the application

The application is accepted as to form shall be published in IP Gazette, Volume A (for application) in the 2^nd month from the acceptance date of the application.

Content of publication of design applications in the Industrial Property Gazette of the NOIP shall encompass bibliographic data and a number of drawings or photos of the design that is sufficient for its disclosure.

Opposition

Any third party may oppose the granting of patent with respect to published invention/utility applications. The opposition must be made in writing and lodged with the National Office of Intellectual Property (NOIP) during the period of substantive examination of the applications. The opposition shall include the grounds therefore together with documents or references evidencing those grounds. No fee shall be paid by the opposing parties. The NOIP shall be obliged to consider the opposition together with the examination of the patent applications. The NOIP’s notification for granting or refusal of patent with respect to the opposed applications must also be sent to the opposing parties.

Substantive examination

Substantive examination shall be carried out automatically by the NOIP for all design applications that have been accepted as to form to check whether the applied designs satisfy the patentability criteria.

During the substantive examination the NOIP shall be obliged to consider opposition lodged by a third party and notify the third party on the acceptance or rebuttal of the opposition.

The period of substantive examination is 6 months from the publication date of the application.

The applicant may make amendments to the design patent application during the substantive examination period, provided that such amendments may not change the design or extend the scope of the protection. He may also withdraw the design application at time prior to the end of the substantive examination period.

The NOIP may suspend the substantive examination in the following cases:

• The nature of the applied design is not clearly disclosed.

• The applied design falls into non-patentable subject matters.

• There is a request or declaration of abandonment from the applicant.

Notification of reason for refusal

Upon expiry of the substantive examination period, if the design is found not to be patentable, the NOIP will issue a notification of Examination Result of Application to the applicant notifying its intended refusal with reasons therefore or deficiencies which need to be corrected. The applicant must respond to the NOIP within 02 months, and if the applicant fails to respond or the response is unsatisfactory, the NOIP will officially reject the application with a Notification of refusal of Granting design patent.

Invitation to pay fee for registration, granting and Publication design patent

If the substance examination finds the design patentable, the NOIP will send a Notification to invite the applicant to pay fee for registration, granting and publication of the Design patent. Payment shall be made within 02 months from the signing of the Notification. Failure in Payment of the fee shall result in refusal of the granting the design patent.

Registration and Publication of design patent

All design patent granted shall be published in the IP gazette, Volume B within the 2 months from the date of Decision for granting design patent and recorded into the National register of Industrial Property.

Appeal to NOIP’s Board of Appeal

The time limit for appeal to the NOIP Board of Appeal is 90 days from the issuance date of the Decision of Refusal and the appeal shall be considered by the NOIP’s Board of Appeal within 30-45 days as provided by the law.

In case the applicant does not agree with the NOIP’s Board of Appeal’s Decision it may file further appeal to the Ministry of Science and technology (MOST) or bring the case before the Administrative Court.

Appeal to MOST

The MOST shall consider the appeal within 45-60 days, however, MOST may invite the relevant parties to have their opinions, thus in practice, it often takes much longer for the MOST to issue its decision. The time limit for filing appeal at this stage is 30 days.

Appeal to Administrative Court

There is two-instance of hearing by the Provincial Administrative Court

First instance:

1.     The time limit for starting the case before the Court is 30 days from the date of issuance of the NOIP’s Board of Appeal Decision.

2.     Within 7 days the Court shall notify relevant parties of the content of the complaint and give the parties 15 days for submitting their opinion.

3.     Within 60 days, the responsible judge shall issue one of the following decision on:

• Trial the case.

• Temporary suspension of the case.

• Suspension of the case.

4.     Within 20 days from the date of the decision on trial of the case the Court shall hear the case.

Second instance: To review a judgment of the first instance

1. Judgment of the first instance can be appealed by any relevant parties.

2. The time limit for appeal is 10 days from the date of the judgment of the first instance.

3. After 60 days from receiving all the documents from the Court of the first instance, the Appeal Court shall rehear the case.

Appeal

The following persons shall have the right to submit appeal/oppositions to the NOIP against the acceptance or refusal of applications or the grant of or refusal to grant design patent:

• The applicant may file an appeal against the refusal of acceptance of his/her application and the refusal of granting design patent.

• Any third party may oppose the granting of a design patent, subject to a certain fee.

The appeal/opposition must be made in writing and submitted to the NOIP within 2 months from receipt of the NOIP’s decision in question. If a third party opposes the granting of a design patent, the opposition can be lodged any time during the validity term of the concerned patent. The NOIP shall be obliged to reply to the appellant within 30 days from receipt of the opposition. In case of disagreement with the NOIP’s response, the appellant may appeal further to the MOST or initiate a lawsuit against the NOIP at the administrative court under the People’s Court System.