Patentable, statutory or patent-eligible subject-matter is subject-matters which is susceptible of patent protection. The laws or patent practices of many countries provide that certain subject-matter is excluded from patentability, even if the invention is novel and non-obvious. Together with criteria such as novelty, inventive step or nonobviousness, utility, and industrial applicability, which differ from country to country, the question of whether a particular subject matter is patentable is one of the substantive requirements for patentability.
This post, provided by IPHOUSE & ASSOCIATES, is intended to help international clients, individuals and organizations, understand subject-matters which are excluded from patentability in Vietnam.
Patent subject matter eligibility
1. Legal basis (Article 8 & 59 of the Law on Intellectual Property Law)
Patents generally protect products or processes, except the following subject matters shall be excluded from patentability in accordance with Article 59 of the Law on Intellectual Property Law in Vietnam:
- Discoveries, scientific theories and mathematical methods;
- Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business, and computer programs;
- Presentations of information;
- Aesthetic solutions;
- Plant and animal varieties;
- Essentially biological processes for the production of plants and animals, except microbiological processes;
- Methods of disease prevention, diagnosis and treatment for humans or animals.
Aditionally, inventions should be excluded from patentability if they lie wholly within one of the exclusions defined in clause 1 of Article 8 of the Law on Intellectual Property:
- Inventions contravening the Laws of State;
- Inventions contrary to public order or social morality;
- Inventions detrimetal to the national defence and security.
2. Inventions contravening the Laws of States
Gambling facilities, drug-taking appliances, apparatus for conterfeiting backnotes, bills, official documents, certificates, seals, historic relics are all contravening the Laws of States and they shall be considered non-patentable.
3. Inventions contravening public order or social morality
The term “social morality” refers to ethical and moral norms and rules recognized as justifiable and accepted by the public. Its connotation is based on certain cultural background which continously changes over time and social progress, and varies from region to region.
Where the publication, exploitation of the invention is contravening/contrary to the social morality, no patent should therefore be granted for such invention. Inventions such an artifical sexual organ not for purpose of medical use, a method of mating a human-being with an animal, a process for modification of the germ line genetic identify of human beings, use of human embryos for industrial or commercial purposes are considered to contravene the social morality and thus shall not be patentable.
The term “contrary to public order” means that the exploitation or use of an invention may cause detriment to the public of society or may disrupt the good order of the State and the society.
4. Inventions detrimental to the national defence and security
Methods of nuclear transformation and the substances obtained thereby are much concern with the national interests in defence and public security, and shall not thus be monopolized.
Nuclear Bomb – one of the unpatentable subject-matters
Substances obtained by means of the nuclear transformation mainly refer to the various radioisotopes manufactured or produced by accelerators, reactors, other nuclear reaction appratus. Such radioisotopes are considered unpatentable.
The term “discoveries” refers to the revelation of substances, properties, et cetera, which objectively exist in the nature but have not been discovered yet. The revelation of a known entity’s (e.g.” compound, composition) new property/function is mainly considered a discovery and therefore shall not be patentable.
Newton’s Third Law
6. Methods of disease treatment
Methods of treatment for diseases refer to the processes of intercepting, relieving or eleminating the cause or focus of diseases so that the living (humans or animals) bodies may recover or gain health or relieve pain. Such methods are excluded from patentability.
In regard to a method possibly for both treatment and non-treatment purposes, unless it is stated clearly that the method only serves the non-treatment purpose, it shall be considered nonpatentable.
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