Introduction: A Jurisdiction in Transition

Vietnam is rapidly cementing its status as a pivotal link in the global high-tech and pharmaceutical supply chain, driven by the strategic “China Plus One” shift in manufacturing. As multinational corporations increasingly relocate their R&D centres and semiconductor production hubs to Vietnam, the nature of intellectual property disputes is undergoing a profound, irreversible transformation.

Historically, foreign rights holders viewed Vietnam as a jurisdiction of “administrative expediency.” Enforcement was primarily conducted through administrative raids, border seizures of counterfeit goods, and modest fines. Although efficient and economical for addressing trademark violations, this approach exposed a critical weakness in patent enforcement: it yielded no monetary damages and provided minimal deterrent effect against advanced forms of infringement, including breaches of pharmaceutical production methods or intricate software algorithms.

Today, that era is fading. In its place, a more complex, high-stakes civil litigation landscape is emerging – one that mirrors the sophistication of mature jurisdictions like the EU or Japan but retains unique local idiosyncrasies. The regulatory framework governing this transition is the comprehensively amended Intellectual Property Law (revised in 2022 and 2025), designed to align Vietnam’s IP regime with the stringent standards of the CPTPP and the EVFTA.

For foreign patent holders, the 2026 landscape presents robust enforcement mechanisms, including specialised courts, higher damages caps and shifting burden of proof. However, it also demands a calibrated litigation strategy that prioritises procedural precision over mere technical merit. The prevailing theme for the coming years is a shift toward “judicial rigour,” in which the potential for serious damages and injunctive relief comes with stringent procedural burdens that can trap the unprepared litigant.

From Administrative Expediency to Judicial Risk

On 1 July 2025, Vietnam’s intellectual property adjudication underwent its most transformative structural reform: the creation of two exclusive specialised IP tribunals, one housed within the Regional People’s Court No 1 (Ho Chi Minh City) and the other within the Regional People’s Court No 2 (Hanoi) (hereinafter collectively referred to as “IP-specialised courts”).

The end of jurisdictional fragmentation

Prior to this reform, patent litigation in Vietnam was hindered by the dispersion of jurisdictional authority. Prior to July 1, 2025, an IP dispute could be heard at first instance by any of (i) 693 District-level People’s Courts or (ii) 63 Provincial-level People’s Courts, with jurisdiction turning on the defendant’s address and whether the dispute was deemed commercial in nature. This decentralised model was fraught with risk: local judges often lacked specialised expertise in complex technologies (eg, pharmaceuticals, biotech or microchips), leading to inconsistent and unpredictable rulings.

Furthermore, the procedural distinction between “civil disputes” (non-profit) and “commercial disputes” (profit-oriented) often led to confusion regarding competence, allowing defendants to delay proceedings through jurisdictional challenges. The new statutory framework radically centralises this authority. By designating these two specialised IP courts with exclusive first-instance jurisdiction, the system effectively addresses the dispersion issue. This concentration of expertise is expected to streamline the resolution of validity and infringement disputes, offering a more professional and predictable forum for foreign investors.

Procedural pitfalls: the “proper defendant” Trap (the Getsitalip case)

However, centralisation does not eliminate procedural risk if the plaintiff fails to master the law. A cautionary precedent, explicitly cited as “Example 2” in the SPP’s Notice No 58, is the Getsitalip case (involving a diabetes drug patent). In this complex litigation, a major US pharmaceutical corporation sued a local company for importing infringing generic drugs. Initially, the lower court dismissed the lawsuit. It accepted the defendant’s defence that, because the foreign manufacturer (based in Pakistan) had contractually assumed all IP liability under the distribution agreement, the local Vietnamese importer was not the “proper defendant” to be sued.

Appellate courts have since intervened to clarify this core legal principle: patent infringement is a tort (a non-contractual violation), not a breach of contract. Therefore, any entity performing the act of importing, storing, or distributing infringing goods is a “proper defendant” and is jointly and severally liable under the law, regardless of any internal indemnification clauses with overseas suppliers. This evolution serves as a stark warning to all supply chain actors that contractual disclaimers cannot override statutory liability for IP infringement.

The Dichotomy of Expert Opinions: Service v Judicial Procedure

In patent litigation, where technical comparison determines the outcome, reliance on expert opinions is shifting from a “service-based” model to a strict “procedural” model. Under the Law on Intellectual Property and the Law on Judicial Expertise, a critical distinction has emerged that foreign litigants often overlook:

• the difference between an “industrial property assessment” (industrial property expertise – Giám định sở hữu công nghiệp); and
• a “judicial assessment” (Judicial Expertise – Giám định tư pháp).

The danger of “service-based” assessment (the Zlatko case)

The risks of relying on the wrong type of assessment are best illustrated by the Zlatko case (Judgment No 35/2020), cited as “Example 1” in the SPP’s Notice No 58. The dispute centred on whether the defendant’s generic drug infringed the plaintiff’s patent claim regarding a specific crystalline structure (cấu trúc tinh thể). The plaintiff initiated the lawsuit relying on an industrial property assessment (assessment conclusion SC008-14YC) obtained via a civil service contract with the Vietnam Intellectual Property Research Institute (VIPRI). In this context, the plaintiff acts merely as a “requesting party” (Người yêu cầu), and the expert acts as a service provider. The fatal flaw was that the expert opined on infringement solely on the basis of paper documents provided by the plaintiff, without conducting a physical analysis of the defendant’s actual product sample to verify its crystalline structure. The appellate court rejected this evidence. It ruled that for complex technical patents, a “paper-based” service assessment is insufficient. The lack of a verifiable “chain of custody” and the absence of actual physical samples rendered the conclusion inadmissible in court.

The standard of “judicial assessment” (the Novartis case)

Conversely, the blueprint for success lies in the 2023 victory of a Swiss pharmaceutical entity in the Vigorito dispute (Judgment No 110/2023/KDTM-PT). Recognising the flaws of the service-based model seen in previous cases, the court in this dispute proactively issued a decision to requisition judicial assessment (Quyết định Trưng cầu Giám định). This triggered a rigorous procedural mechanism under the Law on Judicial Expertise, which has been outlined below.

• Requisitioning authority – the expert was appointed by the Court acting as the “requisitioning body” (Người trưng cầu), ensuring absolute impartiality (unlike a service provider paid by a requesting party).
• Objective sampling – crucially, the judicial assessment (judicial expertise) was conducted on samples provided by the defendant directly to the Court during the proceedings. This completely eliminated any possibility that the defendant could claim the samples had been tampered with or were not authentic.
• Admissibility – as the expert operated under a judicial requisition rather than a private contract, the conclusion was accepted as decisive evidence to determine infringement.

The long-term implication of this is that in 2026, plaintiffs must stop treating expert opinions as a commodity to be bought and sold. The winning strategy is to petition the Court to order the requisition of an independent judicial expert to verify technical claims based on actual physical samples.

Procedural Strategy as the Decisive Battlefield

Winning a patent case in Vietnam often depends less on the technical scope of claims and more on the strategic deployment of procedural rules regarding damages and evidence. While the technical battle is fought with expert opinions, the commercial war is won or lost on the battlefield of leverage.

Damages as leverage (fees and interest)

Vietnamese law places the strict burden of proof for damages on the plaintiff. In practice, proving “actual loss” is extraordinarily difficult, as plaintiffs often lack effective procedural mechanisms (such as discovery) to compel defendants to disclose internal financial records or profits derived from the unauthorised exploitation of IP rights.

Consequently, the most significant “win” for rights holders in the 2025 amendments is the increase in the statutory damages cap to VND1 billion (approximately USD40,000). More importantly, courts are shifting their stance on legal costs. In the aforementioned Novartis case (Judgment 110), the High People’s Court set a landmark precedent by not only upholding the damages award but also explicitly ordering the defendant to pay VND300 million in attorney’s fees and interest on delayed judgment payments.

The reputational front (public apology)

Foreign patent owners often underestimate the power of non-monetary remedies. Under Article 202 of the IP Law, courts can compel infringers to issue a public apology and rectification in mass media. In the Vietnamese business context, where corporate reputation and “face” are paramount, local defendants often view this public acknowledgement of infringement as a greater long-term commercial risk than the monetary damages. A court-ordered apology in a major national newspaper can cause irreversible brand dilution.

As a result, astute plaintiffs use this statutory provision as a critical bargaining chip to force defendants to the negotiation table, often trading the waiver of a public apology for a higher settlement sum or an immediate exit from the market.

Parallel proceedings: breaking the “suspension deadlock” via Article 34 of the Civil Procedure Code (CPC)

A critical procedural battlefield lies in the elaborate interplay between civil infringement lawsuits and validity challenges. Historically, defendants would petition the court to suspend (stay) the civil case pursuant to Article 214.1(d) of the CPC pending an invalidation action at the VNIPO. However, courts are increasingly reluctant to grant such stays. Why? There is a fundamental “timeline mismatch”: civil proceedings are statutorily designed to be swift (with a standard trial preparation period of two to four months pursuant to Article 203 of the CPC), whereas administrative invalidation at the VNIPO often drags on for years due to backlogs. Indefinitely suspending a case to wait for the VNIPO creates a “zombie docket” for the judge.

The solution is a procedural deadlock driving the shift towards Article 34 of the CPC. As the decision on the grant of a patent constitutes a “specific administrative decision” (quyết định cá biệt), the Civil Court is statutorily empowered to review its legality directly. Specifically, under Article 34.1, if the Court determines that such a specific administrative decision is unlawful (eg, issued contrary to patentability standards such as novelty or inventive step) and infringes upon the defendant’s lawful rights, it has the authority to cancel (hủy bỏ) the grant within the same civil proceeding, thereby bypassing the administrative bottleneck at the VNIPO.

There are strategic implications for defendants and plaintiffs, as outlined below.

• For Defendants: Do not rely solely on the “delay tactic” of Article 214. You must present a robust “direct attack” under Article 34 to force a decision.
• For Plaintiffs: Be prepared for a “double-front war.” You can no longer count on the court “pausing” the case; you may have to defend your patent’s validity on the merits right in the civil courtroom.

What Foreign Patent Owners Commonly Misread About Vietnam

Foreign rights holders often approach Vietnam with a “compliance mindset” – assuming that if their paperwork is in order and their patent is valid in the US or EU, enforcement in Vietnam will be a straightforward administrative exercise. In 2026, this assumption is a liability. Outlined below are the four critical miscalculations.

The “validation trap”

Many assume that a patent granted by the USPTO, EPO, or JPO renders the corresponding Vietnamese patent unassailable. The case of partial cancellation against Patent No 16123 in the name of B. Braun Melsungen AG serves as a clear warning. Despite global validity, the VNIPO invalidated the patent based on an Indian prior art reference. This underscores that a “global” patent portfolio does not guarantee local validity. Relying solely on the presumption of validity without a pre-litigation “stress test” (searching for local or Asian prior art) is a strategic error.

Procedural standing v corporate reality

Courts strictly interpret “standing”. As seen in the Getsitalip case, failing to align the plaintiff entity exactly with the patent certificate (or failing to join the foreign manufacturer) can lead to dismissal even in cases of clear infringement. Courts do not act as corporate investigators; they adjudicate based on the precise legal status presented in the dossier.

The “low-cost” fallacy

Treating Vietnam as a low-cost enforcement jurisdiction often leads to under-budgeting for evidence collection. Unlike jurisdictions with extensive discovery (where the defendant is forced to disclose evidence), Vietnam requires the plaintiff to bear the burden of proof upfront. Saving budget on bailiff-witnessed test purchases, forensic infringement analysis, or market surveys often results in a “lack of objective evidence” ruling. A cheap lawsuit in Vietnam is often a losing lawsuit.

Misunderstanding the “exhaustion of rights”

Foreign clients frequently instruct counsel to sue unauthorised importers of genuine goods (parallel imports/grey-market goods) to protect their local distributors’ exclusive pricing margins. Under Article 125(2)(b) of the IP Law, Vietnam applies the principle of international exhaustion of rights. Litigation funds spent on suing parallel importers for patent infringement are invariably wasted, as courts will summarily dismiss such claims. Counsel must firmly advise clients to pursue commercial remedies rather than legal remedies for grey-market issues.

Statutory Shifts: Security Control and Digital Enforcement

Beyond the courtroom, two statutory developments in the 2025 IP Law will fundamentally alter the operational landscape for R&D-intensive companies and software patent holders.

Security control for inventions

From Precautionary Vagueness to Structured Review. For multinational corporations, the amendment to Article 89a represents a critical shift from a broad “precautionary” approach to a structured, legal-status-based review. Previously, security controls were triggered by vague suspicions of “impacting national defence/security” (a qualitative, field-based criterion). The 2025 Law replaces this with a hard legal threshold: control applies only if the invention falls within the “State Secret” regime under the Law on Protection of State Secrets and specific lists, most notably the newly issued Decision 137/2026/QD-TTg (replacing Decision 1294). Crucially, this shift implies that “state secret” status is not an inherent quality of a dual-use technology that a company must guess, but rather an administrative classification by competent authorities. Unless an invention is officially classified or strictly falls within the decision’s scope, purely commercial R&D remains largely unrestricted.

As such, while Decree 65 is being amended to operationalise these procedures, the compliance burden has shifted. The challenge has shifted from predicting uncertain technical assessments to ensuring compliance with defined legal structures. Investors must conduct thorough internal due diligence to verify whether their R&D outputs fall within the specific categories listed in Decision 137. This moves the needle from “avoiding risks” to “managing a structured filing strategy.”

Enforcement in the digital space: the “hybrid liability” model

Finally, the 2025 amendments mark a definitive departure from the passive “mere conduit” mindset (akin to the US Tiffany v eBay standard) and codify a “hybrid liability model” regarding online infringement, structuring enforcement into two distinct layers, as outlined below.

• The reactive layer (conditional safe harbour): Under Article 198b.3, intermediary service providers (ISPs) dealing with copyright and related rights retain the traditional safe harbour protection. However, this immunity is conditional on strict compliance with the “notice and takedown” mechanism, which requires removal of infringing content upon receiving actual knowledge (typically through a valid notice).
• The proactive layer (affirmative obligation towards “staydown”): Crucially for patents and trademarks, Article 198b.5a introduces a game-changing standard. This provision imposes an independent statutory duty on certain categories of digital platform managers (notably e-commerce marketplaces) to proactively implement measures to protect intellectual property rights. Unlike the reactive layer, this creates an affirmative obligation: not merely to remove infringing listings, but to prevent their recurrence.
• The “engine and switch” of enforcement: While the IP Law creates the obligation (the engine), the newly enacted digital commerce regulatory framework provides the operational machinery (the switch). These regulations empower authorities to enforce “notice and staydown” outcomes by cutting off the economic incentives of infringers, specifically through “follow the money” measures (such as blocking payment gateways and advertising networks) for repeat offenders.

Conclusion

For patent holders, Vietnam in 2026 is neither a “soft” enforcement jurisdiction nor a purely technical battleground. It is a forum where procedural missteps (such as relying on unilateral “service-based” assessments, as seen in the Zlatko case) can be fatal. Success requires mastering the “dual-track” assessment system and leveraging new statutory tools, such as the IP specialised courts. Those who effectively navigate this procedural landscape will find Vietnam to be a highly effective jurisdiction for protecting their intellectual assets.