Thứ Năm, 16 tháng 11, 2017

How feasible is it to get a patent without an attorney (it is relatively advanced and there are few attorneys with acceptable knowledge)?

BY Mini Kids No comments

You can read some literature (like Patent It Yourself by Pressman) and have a reasonable shot at preparing a document that, ultimately, will become a patent.

The question you didn’t ask is what the value of that patent is. I hate to sound elitist, but without an attorney steering the ship from the beginning, it’s unlikely that patent will have substantial value.

It’s not that patent attorneys are gods among men, who uniquely possess the high degree of intellectual rigor to prepare a patent application. It’s just that patent law is insanely complex and unintuitive. There are a ton of ways you could go wrong.

And worse yet, by “wrong,” I don’t mean you’ll limit your chances of getting a patent. No, you’ll get a patent. But there will be some odd phrase buried somewhere between the application you prepared and the advocacy you undertook to get the application granted that will drastically limit the scope of the patent. And to the trained eye, those phrases jump off the page.

To put it another way, when I was a young patent attorney, the typical process would be that I’d draft an application and send it to an experienced partner for review. We’d inevitably meet to discuss it.

There often followed a word-by-word cross examination about why I wrote the application the way I did. “Do you need this word? Are we going to get a patent because of this word, and not get a patent without it? What purpose does this word serve?” That kind of thing.

For a long time, I would come away from those meetings with a much better understanding of the invention, and how to write a much better application. I like to think of myself as a reasonably clever guy, but even after law school and internships and all that, I couldn’t write a good patent application for at least a year after practicing. I am not unique in that regard.

As for the technological demands for understanding your invention, I assure you, someone can understand it. The good news is, they have you to help them. These days, it’s not hard to find a patent attorney with a PhD in the discipline your invention is in — at least broadly speaking.

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Thứ Tư, 15 tháng 11, 2017

What is the first patent in America? And the patent number?

BY Mini Kids No comments

First patent issued by U.S.: First U.S. Patent Issued Today in 1790, issued in 1790.
They didn’t start using numbers until 1836, when Patent #1 was issued on July 13, 1836:

Another 108 patents issued in 1836. Patent #1 was issued to Senator John Ruggles, who happened to be chairman of the Senate Committee on Patents. While there, he put through a bill to reorganize the Patent Office, presumably knowing that one part of the bill would be that patents would now be numbered, went and invented something nominal so that, the sleaze he was, he could nab that first number. Here is the patent in full: Patent US1 - Locomotive steam-engine for rail and other roads.

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Thứ Năm, 9 tháng 11, 2017

Effectiveness of a Lawsuit against Infringement of IP in Vietnam

BY Mini Kids No comments

Should IP holders handle with the infringement through litigation?
How to handle effectively with infringement is a big concern of Intellectual Property (IP) holders. Should the IP holder file a lawsuit at Court? Is this way effective in Vietnam?  This article will give you general information about handling of intellectualproperty disputes through legal action at court in Vietnam.

Unlike many countries in the world, in case of infringement, most IP holders proceed with lawsuits in the courts (judicial authorities), while other administrative agencies only perform measures to ensure enforcement of judgments of the court.
Protection of IP rights through the litigation has many advantages over administrative measures because it guarantees the enforcement and compensation from infringers. However, in our opinions, the practice of resolving IP rights disputes in courts is not as effective as administrative measures in Vietnam.
Vietnamese laws have not given separate regulations on procedures for settling IP disputes. Therefore, the procedures for settling disputes shall be governed by the Law on Civil procedure. According to Clause 2 of Article 30 and Clause 1 of Article 34 of this law, disputes over intellectual property rights and technology transfer between individuals and organizations and all purposes of profit are commercial disputes to be trialed at the courts of the province.
According to Article 202 of the IP Law, the court could decide the following civil measures to the infringers upon IP right:
-Compelling termination of the infringement of intellectual property rights;
-Compelling public rectification and apology;
-Compelling the performance of civil obligations;
-Compelling compensation for damages;
-Compelling destruction, or distribution/ use for non-commercial purpose.
In addition, when initiating a lawsuit or during dispute at court, the IP holders may request the court to apply provisional emergency measures in order to prevent damages.
In practice, the IP holder does not proactively protect IP rights by civil measures to file a lawsuit at court. The number of cases resolved by courts is much lower than the number of cases handled by administrative measures. Specifically, the number of cases resolved by court are 177 cases from 2012 to 2015, of which 91 cases were canceled. The number of cases resolved by administrative measure is of 22,914 cases (excluding cases handled by Vietnam Customs Authority)
The reason for the above survey is that, the IP holder is less likely to resolve disputes through courts because time for dispute resolution is lengthy, the process is cumbersome and complicated, but not as effective as administrative measures. Therefore, dealing with disputes in the specialized administrations will give faster effects to the IP holders in Vietnam.

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Thứ Tư, 8 tháng 11, 2017

Dispute Resolution Through Arbitration

BY Mini Kids IN , No comments

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation law firm with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes.

In the current business environment, most business agreements could contain a clause stipulating that disputes arisen must be resolved in arbitration.  For a dispute to be referred to arbitration, there must be a valid arbitration agreement in writing, either as an arbitration clause within a contract or a separate agreement.  If the agreement is included within the context of a contract, the arbitration clause is considered independent, and any modification, extension, or termination of the contract does not affect the validity of the arbitration clause. Vietnamese law allows for a written arbitration agreement to take the form in any written form, so long as the writing clearly indicates the parties’ intent to resolve any dispute via arbitration. If a dispute falls within the scope of a valid arbitration agreement, but a party attempts to initiate court proceedings, the residing court does not have jurisdiction over the matter, and must drop the case. Moreover, an arbitration agreement does not have to stipulate specific dispute matters and/or the arbitration organization authorized to resolve disputes without supplemental agreement.  Even if there is a valid arbitration agreement, Vietnamese Arbitration Law stipulates that in order for a dispute to go to arbitration, it must also fit into one of three categories:
(1) disputes arising from “commercial activities”;
(2) disputes where at least one party is engaged in commercial activities;
(3) other disputes where the law stipulates that arbitration is a permissible means of resolution.
In category (1), the term “commercial activity” is defined in Commercial Law No. 36-2005-QH11 (31 December 2005) as “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes.”  The types of disputes that often fall into the second category are noncommercial disputes, such as civil disputes, where at least one party to the dispute is engaged in commercial activities. However, this category does not apply in disputes between a good/service provider and a consumer. In this case, the law allows the party to choose between litigation and arbitration. Even the agreement includes a standard arbitration clause in the supply of goods or services contract, the dispute may not be arbitrated without the consumer’s consent. The final category of disputes permissible for arbitration gives legislators discretion to expand or maintain the types of disputes resolved through arbitration.  An example of a category (3) dispute is a dispute arising from investment activities governed by the Law on Investment.
Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.
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Thứ Sáu, 3 tháng 11, 2017

How hard is it to invalidate a patent?

BY Mini Kids No comments

The common fallacy that may be the impetus of your question is that patents are easy to get. They’re not—I’ve seen inventors spend a decade and hundreds of thousands of dollars getting one. So to invalidate someone’s life’s work will take you more than a casual search on Google. :)

What you see in the other answers is that it’s generally very difficult to invalidate a patent, and often very expensive, precisely because you basically have to re-do everything they spent years and lots of money doing to get the patent (which is very difficult) and then find a critical error or fraud in that process. And odds are, they’re geniuses, which is why they got the patent. They are probably students who have based their theses on them, large companies who are their customers and would lose umpteen millions if it were overturned, famous professors who have co-authored papers with them—not to mention a growing list of lawyers who have spent a decade learning the technologies well enough to help them get the patent.

The public relations arms of the serial infringers will tell you that patents are often sketchy and all you need to do if an inventor asks you to get a license to use his invention is to threaten to ‘turn him in’ for asking, threaten to ‘invalidate his patent.’ No, as others have said, patents are presumed valid because they normally are. All those questions of obviousness and stuff already have a very long paper-trail. And the question the original patent examiner researches isn’t whether it’s obvious to normal people, it’s whether it’s obvious to other geniuses, those ‘skilled in the art’ as it were.

It’s not that it doesn’t happen. It’s that it’s a difficult long expensive uphill battle, and it’s that the media, when they say otherwise, are mostly reporting paid PR pieces from large and beloved corporate defendants.

As with all questions of fact, you academically must kill your darlings to find the truth.

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Thứ Ba, 31 tháng 10, 2017

Unemployment Insurance for Employee Unilaterally Terminating Labor Contract

BY Mini Kids No comments

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.
When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).
Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:
i) The labor contract or contract has expired or has been completed under a labor contract;
ii) Resignation decision;
iii) Decisive dismissal;
iv) Disciplinary decision on dismissal;
v) Notice or agreement to terminate the labor contract or contract of employment.
The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.
We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients
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Thứ Sáu, 27 tháng 10, 2017

Protecting Intellectual Property Rights Abroad for Vietnam Enterprises

BY Mini Kids IN , No comments

The development of international supply chains has become a critical success factor for big companies, and should be seen as important key for products of developing countries to gain entry into high standard market such as USA, European Countries, and Japan. However, many Vietnam companies have experienced problems in shifting their supply chain abroad as well as managed their intellectual property such as geographical indication, trademarks.
On October 24th, 2017, Vietnam Intellectual Property Association (VIPA) in cooperation with the World Intellectual Property Organization (WIPO), Vietnam Chamber of Commerce and Industry (VCCI), International Association for the Protection of Intellectual Property Rights (AIPPI) organized the seminar “Protecting intellectual property rights abroad for Vietnamese enterprises” to provide Vietnam companies value information for protecting their Intellectual Property right in the Fourth Industrial Revolution and global supply chain development.
All the experts have strongly recognized the important role of intellectual property protection abroad for Vietnamese enterprises and introduced:
-Introduction to the International World of Intellectual property
-Protecting a valuable asset- How to protect your Brand with Madrid
-Options to protect an invention: Patent Cooperation Treaty (PCT) and trade Secrets
-Introduction to the international design System- Hague
-Other WIPO services, Tools and Products
-About International Association for the Protection of Intellectual Property- AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle)
Vietnam is a member of the WIPO and is a signatory to the Paris Convention for the Protection of Industrial Property. It has acceded to the Patent Cooperation Treaty and the Madrid Agreement Concerning the International Registration of Marks, and in 2004 joined the Berne Convention. Therefore, the Vietnamese enterprises should file trademarks, patents or industrial designs by international systems for saving cost and managing the registration procedures effectively. However, it is suggested that the international Bureau of WIPO does not decide whether trademarks, patents or industrial designs are eligible for protection or not, and the final decisions must depend on Intellectual Property law of each country i.e. Vietnam. For differences of laws in every country and difficult techniques when preparing Intellectual Property application, applicants should find valuable assistant from Intellectual Property agent.
Our licensed agent of intellectual property practice at ANT Lawyers helps clients to protect, and profit from their intellectual assets in Vietnam.
ANT Lawyers is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.
Tuan Nguyen and Thao Hoang @ ANT Lawyers

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Thứ Năm, 26 tháng 10, 2017

Non-Compete Agreement In Labor Contract

BY Mini Kids No comments

The principle “freedom to work” is recognized and respected by the Labor Code 2012. However, this regulation may harm legitimate business interests of employers when employees, during the performance of the laborcon tract or especially after the termination of the labor contract, reveal the business or technology secrets to compete with the employers. Therefore it is necessary to create the limits on the freedom to work, for the purpose of preventing workers from revealing employers’ business or technology secrets. Law in many countries around the world has recognized “Non-Compete Agreement” as a tool to enforce security programs.
The Labor Code 2012 and sub-law documents do not mention to the definition of “Non Compete Agreement”, but make the provision that: “When an employee performs a job which is directly related to business or technology secrets as prescribed by law, the employer may reach a written agreement with the employees on the content and duration of protection of business or technology secrets, and benefits and compensation in case of violation by the employees”.
The definition of “Non-Compete Agreement” is inferred by explaining the provisions of law and referred to the articles of legal experts. “Non-Compete Agreement” is a legal contract between an employee and an employer, for a purpose of preventing the worker from competing directly or working for a competitor during the performance of the labor contract or especially after the termination of the labor contract. Thereby, we can infer that only when employers have business or technology secrets, they have the right to make Non-Compete Agreement. Moreover, the legitimate business interests that are protected must be legal, unique, influence the maintenance, stability and development of business activities.
Analyzing the provision “Non-Compete Agreement”, we can conclude that, the employees adjusted by the “Non-Compete Agreement” is the worker who is directly involved in business or technology secrets (such as the senior managers, senior technicians and others are obliged to keep business or technology secrets). The Labor Code 2012 has regulated that the “Non-Compete Agreement” must be on text.
The provision of Non-Compete Agreement is necessary for employers to protect business or technology secrets, but it is difficult for workers to find job after the contract terminates. Therefore, Non-Compete Agreement should balance the interests between employers and employees by setting reasonable limits in time, geographic scope and particular industry or activity.
(i) For restriction on time, the Labor Code 2012 does not specify restriction period or the point of starting restriction period. This is entirely upon the parties. However, Non-Compete Agreement can not be enforced unless it specifies a reasonable restriction period. Referring to the law of some European countries (Germany, France) and Asian countries for example in China, the maximum restriction time is 02 years, to ensure that employees have conditions to find new jobs.
Moreover, it provides opportunities for employers to motivate, improve the technology and business secrets to develop. On the other hand, law in some other countries distinguishes between highly skilled workers (group 1) and unqualified employees (group 2). Spanish law is a typical example, the maximum restriction period is two years for workers in group 1 and six months for group 2.
(ii) Restriction on geographic scope is not regulated in Vietnamese law. Meanwhile, most countries such as France, China and Russia all regulate that the restriction is on the whole country. However, due to differences in society, economic and education conditions, Vietnam can hardly regulate like that. On the other hand, when making the provisions of the restrictions on geographic scope, it is necessary to base on the performance of the company, the method of production, the size of and the type of company.
(iii) For restriction on particular industry or activity, most courts tend to consider the work that employees will work in the new labor contract. Normally, if the new job is similar to the old one, it will not be approved by the court. Under the Labor Code 2012, the content of restrictions on particular industry or activity when employees enter into agreement include: (i) obligation to keep trade information confidential (business secrets, technology secrets) ; (ii) not be able to work for the competitor of former employers or to conduct his own business competing with former employers.
Labor Code in our country does not specify the scope of the restriction on particular industry or activity, it depends entirely on the will of the parties. Non-Compete Agreement can not be applied to all jobs, but only to those who hold business and technology secrets. For every type of work there will be a different range of restrictions. The scope of the restriction is not exceeding the employees’ professional capacity and ensuring the opportunity of works in the future.
The benefit that employees receive when signed the Non-compete Agreement can be the opportunity for promotion, high salary, and commendation if the Non-Compete Agreement is made while the labor contract is valid. If the Non-Compete Agreement is applied after the labor contract terminates, employees shall receive the compensation. The amount of compensation is upon the agreement of the parties and must be satisfactory with the restriction of job opportunities. There are some cases that employees may not be entitled compensation are to violate the Non-Compete Agreement or die or prison sentence.
According to the Labor Code 2012, in case of violating the non-compete contract, employees have obligation to compensate, but it does not give specific compensation amount as well as the method of compensation. In order to claim compensation, employers must demonstrate these following factors: (1) the violation of the Non-Compete Agreement; (2) actual damage (the lost revenue and profit of the employer); (3) the causal relationship between the infringement and the damage; (4) fault of the employee. The amount of compensation must correspond to the amount of lost revenue or profit. In addition, employees must return the non-owned assets that are exploited and developed to compete with former employers. Moreover, employees must repay the compensation and other benefits paid by former employers if agreed in the agreement.
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Thứ Hai, 23 tháng 10, 2017

Application of Administrative Measures to Protect Intellectual Property Rights

BY Mini Kids IN , No comments

Since joining WTO, Vietnam has been coping to comply with the international commitments in general and intellectual property area in particular. In order to ensure fair legal environment and the benefits of intellectual property right holders, the Vietnam laws provide a number of ways in which holders can apply the following methods to protect their intellectual property rights:
Negotiation: requesting organizations, individuals committing infringement acts of intellectual property rights to terminate the infringing acts, apologize, publicly rectify and compensate damages;
Using administrative remedies: requesting the competent agencies to handle infringement acts of intellectual property rights;
Filing claim at court or arbitration center: initiating a lawsuit at a competent court or an arbitrator to protect their legitimate rights and interests;
Negotiation is often used in the first step to request the violator to stop the infringement of intellectual property rights. However, this measure is not potentially effective because it dependents on goodwill and cooperation of the violator as well as the legal basis, evidences that you can provide to demonstrate and warn of violating acts.
Relating to the dispute settlements, due to high costs, complicated procedures and extended time, this measure is not commonly selected as the best treatment.
In Vietnam, intellectual property infringement is mainly dealt with through administrative measures. Depending on their functions and responsibility, competent state management agencies deal with infringements of intellectual property rights as per request of the IP holders Currently, through the following agencies:
Inspectorate of the Ministry of Science and Technology;
Economic Police of the Ministry of Public Security and;
Market management of the Ministry of Industry and Trade.
In case of dealing with infringements of intellectual property rights in Vietnam, the holders should carry out the following steps:
1.Submission of a written request to terminate an infringement of intellectual property rights:
This step is optional to save costs for the infringed party as well as deal with the infringement on the basis of goodwill and cooperation. The infringed party should send documents, including a persuasive Cease and Desist letter and evidences, to the violator for the purpose of requesting them to terminate the violation and commit not to repeat the infringement in the future. In fact, many intellectual property right holders have reached their goals at this step providing that they can collect enough proof.
2.Requesting the competent state agencies to handle acts of infringement of intellectual property rights:
In this step, the infringed party must prove both its ownership to the intellectual property and information, evidence of the infringement by the infringing party.
The application of administrative remedies is effective handled, so it should be preferable to filling a lawsuit. After requesting the administrative agency to penalize the infringing party, the right holder still remain their right to initiate a lawsuit in court to claim of damages. Actually, the combination of administrative measures and lawsuits at court would be more effective for intellectual property right holders.

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Thứ Sáu, 20 tháng 10, 2017

Child Adoption by Foreigners

BY Mini Kids IN , , , , , No comments

Child Adoption with Foreign Elements
Presently, there are many foreign people want to adopt a Vietnamese. Besides, the law of Vietnam also has strict regulations for child adoption by foreigners.
First is the adoption of specific child by foreigners. The Adoption Act 2010 defined that the Vietnamese residing abroad and foreigners permanently residing overseas are allowed to adopt specific child in the following cases:
  • As stepfather or stepmother of the adopted person;
  • As uncle or aunt of the adopted person;
  • Has adopted children who are siblings of the children that are adopting;
  • Adopt children with disabilities, HIV / AIDS or other fatal diseases;
  • As foreigners who are working and studying in Vietnam for at least 01 years.
In which the 4th case is a special case that are encouraged by the State with simpler procedures than other cases.
The order and procedures for adoption of child will be conducted as follows:
The profile of child adopting people includes:
+ Application for adoption by name;
+ A copy of the passport or replacing document that have the same value;
+ The psychological and family investigation;
+ Documents certifying health status;
+ Documents certifying income and assets;
+ Judicial record;
+ Documents certifying marital status;
+ Documents evidencing eligible for child adoption by name.
+ In case of specific child adoption for children over 5 years old and two or more siblings, the record must clearly state the psychological preparation plan for children, preparing conditions for children to integrate into the new family, culture and society environments.
The above documents are issued and certified by the competent authority where the child adopting people permanently reside. To be certified by the State of Vietnam, it should be certified through the procedure of consular legalization.
The profile of children to be adopted includes:
+ Certification of health issued by the district or higher health authorities;
+ Two full body and looking straight images, which was taken within 06 months
+ Documents about the noteworthy characteristics, preferences and habits of children.
These papers are issued by nurturing organizations or natural parents / guardians of children.
Profiles of the child adopting person and the child being adopted are submitted directly at the Bureau for adoption. The case that cannot submit the profile directly at the Bureau for adoption, the child adopting person have to authorize by written document their relatives residing in Vietnam to submit the profile at the Bureau for adoption or send the profile through post office in the form of guarantees.
In the procedure of adoption of specific children with disabilities, HIV / AIDS or suffering from serious diseases, Vietnam law allows the free implementation of procedures to find alternative families and introduce children for adoption. The meaning of this is to shorten the procedure, creating condition for these children to be adopted and nurtured in an enabling environment.
After receipt of the application for adoption, Bureau of adoption will check and appraisal the profile to determine that the child adopting people was certified by the competent authorities of the country where he or she resides that he or she satisfy the eligibility for child adoption under the laws of that country and under the laws of Vietnam.
Towards the child to be adopted, after receiving profile from natural parents or guardians of the child, Bureau for adoption has the responsibility to inspect children’s record, conduct consultation with the natural father / mother or the guardians of child about the child adoption for foreigner during 07 working days.
Within 07 working days from the expiration date of changing opinion about the child adoption for foreigner of the natural parents or guardians of children, if children are eligible to be adopted by foreigner, who are entitled to adoption by name, Bureau for adoption will report the Department of Justice, Department of Justice will certify by document that the children eligible for adoption by foreigner. Finally, Department of Justice submits to the Provincial People’s Committee decided to allow the foreigner to adopt the children.
Second is the adoption of child not by name with foreign element. The adoption of child not by name with foreign element is the cases when Vietnamese residing abroad, foreigners reside in the country in which that country is a member of international treaties on child adoption with Vietnam and adopt Vietnamese children; Vietnam citizens residing in Vietnam adopt foreign children; foreigners permanently residing in Vietnam adopt Vietnamese children.
For the adoption case that not by name, the order and procedures will include:
+ The profile of people that want to adopt children should be submitting to the Bureau for adoption through the adoption agencies of that country that are licensed to operate in Vietnam. If that country does not have adoption agencies licensed to operate in Vietnam, the adoption profile should be submitting to the Bureau for adoption through diplomatic representative offices or consular office of that country in Vietnam.
+ The profile of children being adopted will be submitted by natural parents or guardians of the children at the Bureau for adoption.
+ The Bureau for adoption receives, inspect and evaluate profile of the child adopting people and children being adopted.
Compared to the case of adoption by name with children with disabilities, HIV / AIDS or other serious diseases, the case of adoption not by name, the Department of Justice has to implement the procedure to find alternative family and introduce children for adoption. The meaning of these two procedures is to encourage local Vietnamese permanent residing in Vietnam to adopt Vietnamese children, enabling Vietnamese children to live, learn and develop in their own homeland. Only when the above procedure to find alternative family and introduce children for adoption have finished without any local people want to adopt that children, the Department of Justice will consider deciding for the children to be adopted by foreigner.
The notice period to find alternative family is regulated as 60 days, during this period, if any Vietnamese wants to adopt children, they should contact the Commune People’s Committee where children resides to consider and settle the adoption. If time runs out 60 days, the Department of Justice has to prepare a list of children who need to find alternative families and submit to the Ministry of Justice.
On the other hand, within 30 days after receiving profile from foreigner that want to adopt Vietnamese children, the Department of Justice has to review and introduce children to be adopted on the basis of children with no domestic adoption. After introducing children to be adopted, the Department of Justice reported the Provincial People’s Committee for comments.
The case that the Provincial People’s Committee disagrees, they have to send a written document stating the reasons and submit to the Department of Justice. On the other hand, the case that the Provincial People’s Committee agrees, within 07 working days, the Provincial People’s Committee decided for children for abroad adoption.

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