The decision refusing the grant of a patent arrives after nearly four years of pursuing the application. Many foreign applicants stop here, assuming a decision of the Intellectual Property Office of Vietnam is final. In reality, a refusal is an administrative decision that can be challenged by complaint, and a good number of applications are rescued at this stage — provided the complainant understands what exactly is being fixed: the examiner’s reasoning, the scope of the claims, or both.
Understanding the refusal decision before planning a complaint
A refusal decision is usually issued after the applicant failed to respond to an intended refusal notice, responded with amendments that did not meet the requirements, or filed an objection the Office found unconvincing. The grounds revolve around the situations in Article 117 of the Intellectual Property Law: the subject matter does not meet the protection conditions of novelty, inventive step and industrial applicability; the subject matter falls within the cases excluded from protection under Article 59; or the application still has defects the applicant could not cure.
The first task on receiving the decision is to split the grounds into what can be cured and what cannot. Grounds about defects of the application, the drafting of the claims, or lack of unity can usually be cured by amendment. A novelty objection based on a document published before the priority date that discloses the very same solution can almost never be cured by argument alone. Complaining against a decision in the second group without a substantive amendment only burns time and fees.
The complaint path: first instance, second instance, and administrative litigation
Under the current law on complaints, the applicant may file a first-instance complaint to the Director General of the Intellectual Property Office — the agency that issued the decision — within 90 days from receiving the refusal decision. The complaint should state the request clearly: revoke the refusal decision and re-examine, accompanied by the written argument and, where applicable, claims amended within the limits of Article 115. This is an important difference from the notice stage: amendments filed with a complaint must still stay inside the scope originally disclosed.
If the first-instance outcome is not accepted, the complainant has two routes: a second-instance complaint to the Minister of Science and Technology, or an administrative lawsuit before the competent court asking for the decision to be annulled. The choice depends on the nature of the dispute: errors in technical assessment are usually better taken through the full administrative route, because the specialist agency can review the entire examination file; errors of procedure, competence or misapplied law are the territory of the administrative court.
While the complaint is pending, keep a close watch on related rights: the application sits in a refused state, so every commercial plan tied to the patent must be recalculated, and if a divisional or a new application for the still-protectable part of the solution is contemplated, action must be taken early, because those options are limited by the state of the file and by the publication of the original application.
Success prospects: the factors that actually decide the outcome
No official statistics on the success rate of complaints against patent refusal decisions in Vietnam are published, so any percentage figure advertised in the market has no verifiable basis. A proper assessment must be built on the specific file, using four factors: whether the core citation truly discloses the same solution or only something similar; whether the original description contains a clear distinguishing feature that can be moved into the independent claim; whether the earlier examination error is an arguable reasoning error or merely a difference of opinion; and the scope with which the same family was granted abroad.
The strongest scenario is a complaint combined with amendment: narrow the claims to exactly the part not destroyed by the citations, while exposing the weak points in the refusal’s combination logic. The weakest scenario is a complaint in unchanged form, keeping the claims as they were and merely repeating the arguments already made at the notice stage — the complaint body rarely reverses a conclusion when nothing new is offered on scope or on evidence.
A parallel option worth considering is to convert or split off the still-valuable part before the file closes entirely: file a divisional for subject matter not substantively refused, or a new application for an improvement that has never been published. These options trade the priority date for a fresh opportunity, and they are only worth taking when the remaining part has sufficient standalone commercial value.
Frequently Asked Questions
How do I appeal a refused patent application?
File a first-instance complaint to the Director General of the Intellectual Property Office within 90 days from receiving the refusal decision under the law on complaints, with an argument addressing each refusal ground and amended claims where applicable. If the first-instance result is not accepted, file a second-instance complaint to the Minister of Science and Technology or bring an administrative lawsuit before the competent court to have the decision annulled.
What are the chances of a successful appeal?
No official rate is published, so the assessment must be file-specific: prospects are good where the refusal rests on curable defects or where the original description holds a clear distinguishing feature that allows the claims to be narrowed past the citations; prospects are poor where a document published before the priority date discloses the very same technical solution. A complaint combined with a substantive amendment is always in a stronger position than a complaint that changes nothing.
Should I amend the claims and then appeal?
Yes, in most cases. Amending within the limits of Article 115 of the Intellectual Property Law — never beyond the content originally disclosed — gives the complaint body a new scope on which it can reach a different conclusion without having to declare the earlier examination entirely wrong. A complaint without amendment should be reserved for cases where the refusal is wrong on a purely argumentative point, for example where a cited document was misread.
If the complaint fails, can I sue in court?
Yes. After the first-instance complaint result, the applicant may bring an administrative lawsuit before the competent court asking for the refusal decision and the complaint decision to be annulled, instead of or following the second-instance complaint depending on strategy. Note the limitation period for administrative litigation and prepare the complete technical file, because the court reviews the lawfulness of the decision rather than re-examining the invention like a specialist agency.
Before giving up on a refusal decision, let FLAT Law Firm read the decision together with the full examination history: we classify the grounds into curable and incurable, price the complaint-with-amendment option against the divisional option, and only then recommend whether to proceed or stop. The 90-day complaint window passes faster than most applicants expect.
This article has been quality-reviewed by the FLAW AI Legal Council
