The veil of secrecy regarding a protected design scope in the light of prior-art

Abstract

The scope of industrial design protection is often determined in close relation to legal information on prior industrial designs recorded in the prosecution estoppel history and in other sources. Determining the scope of industrial design protection based on that “prior art” aims to clarify the nature of the protected design and determine whether a contested design falls into that scope or is infringing the protected design right in resolving conflicts of rights as well as adjudicating infringements of rights over the protected design. This article delved into the theoretical basis for the scope of industrial design protection in the light of prior art and practical international lessons in determining the nature of the protected design. Although it is not clearly stipulated in current legal provisions on industrial designs in Vietnam, the accessible design prior art, particularly, the public design prosecution estoppel history, should be considered as one of the indispensable grounds to determine the scope of design protection. The principles for analysing scope of design protection that should be applied in Vietnam in accordance with the common standard practice are proposed in this article as well.