In technical literature, a computer program can be found being defined broadly as software – program or bundle of programs. In terms of science a computer program is a written algorithm – instructions of data processing on a computer. In general, a computer program, as one of the most sophisticated creations of man, is a subject of copyright law. However, computer programs are legally not regarded as inventions in many countries. Furthermore, Article 27 of TRIPS, which defines patentable subject matter, does not mention computer programs in the list of exclusions. In other words, what is not excluded from patentability can be patented. Hence, the TRIPS treaty does not reject the idea of patenting a computer program.
Below, provided by IPHOUSE & ASSOCIATES, is an overview of the current status of the patentability of computer program including software in Vietnam.
Under the Law on Intellectual Property in Vietnam, computer programs as such are NOT regarded as patentable inventions, meaning that Intellectual Property Office of Vietnam (IP VIETNAM) shall NOT be granted for that subject matter.
1. Definition (Under Article 4(12) of the Law on Intellectual Property)
Invention means a technical solution in the form of either a product or a process which is intended to solve a problem by application of laws of nature.
2. Technical solutions (Under Article 25.3 of the Circular No. 01/2007/TT-BKHCN)
In view of the foregoing, the term ‘invention’ refers to any technical solution relating to a product or a process. Technical solution is a set of necessary and sufficient information on technical methods and/ or technical means (by application of natural laws) which is intended to solve a problem.
Article 25.3 of the Circular No. 01/2007/TT-BKHCN stipulates assessment of compatibility of the object stated in the application with the type of invention protection title as below:
a) The object stated in an application shall be considered incompatible with the type of invention protection title (patent for invention patent/utility model) if it is not a technical solution, particularly not a product or a process. The method of identifying technical solutions is provided as below.
b) A technical solution an object to be protected as an invention – is a collection of prerequisite and sufficient information on technical methods and/or devices to solve a given problem.
A technical solution may be one of the followings:
- A product in the form of a tangible object ( machine, equipment, electric circuit, etc.) which is presented by a collection of information identifying a man-made product, characterized by features of its configuration, and functions (is utilized) as a device to meet a certain human need; or a product in the form of a material (material, component, food, pharmaceutical, etc.) which is presented by a collection of information identifying a manmade product, characterized by signs (features) of its presence, ratios and state of its elements, and functions (is utilized) as a device to meet a certain human need; or a product in the form of a biological material (gene, genetically modified plant/animal, etc.) which is presented by a collection of information on a product containing genetic information modified by human manipulations and capable of self-regeneration;
- A process (technological process; diagnosing, forecasting, checking or treating method) which is presented by a collection of information identifying the method of performing a given process or job, characterized by signs (features) of the order conditions, components methods and devices for performing manipulations to achieve a certain objective.
c) An object stated in an application shall NOT be considered a technical solution in the following cases:
- It is merely an idea or a scheme that rather raises a question than offers solution(s) to a problem, gives no answer to the question how and/or by what means;
- Problem to be solved is not a technical problem and cannot be technically solved;
- Natural products other than those created by humans.
3. Subject-matter excluded from patentability (Under Article 59(2) of the Law on Intellectual Property)
In the light of the above and under Article 59 (2) of the Law on Intellectual Property in Vietnam, computer programs are basically excluded from patentability if claimed as such. Specifically, the IP VIETNAM considers that “Schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games and doing business; computer programs” are not patentable inventions.
However, in accordance with the Examination Guidelines for Patent and Utility Model in Vietnam, computer program-based invention may be patentable if such program that runs in a particular computer can generate technical effect apart from the common interactive communication between the computer and program/software. This means that some aspects of a software invention, going beyond a “computer program as such”, may still lead to the grant of a Vietnam patent.
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Should clients need any further information on legal IP matters, please contact us at:
Dao Danh Phuoc (Mr.)
Head of Patent and Design Department – IPHOUSE & ASSOCIATES
Phone: (+84)967742458 (Hotline)