Like many other countries, in Vietnam, pure computer programmes are not patentable but rather protected by the copyright law. However, certain computer programmes are still eligible for patent protection.
The examination of computer programmes is guided by Article 5.8.2.5 of the Vietnam Guidelines for Patent Examination (Guidelines). To supplement the provisions, the Intellectual Property Office of Vietnam recently published Annex I which contains additional guidelines.
The additional guidelines are not for the assessment of novelty and inventive step; they are aimed at the assessment of patentable subject-matter to see whether the subject-matter is excluded from patent protection as below.
The assessment of patentable subject-matter in formalities examination stage
In Vietnam, invention is defined as a technical solution in the form of a product or a process, and as a result, an invention must have technical features. Therefore, if the examiner finds that the claimed subject-matter does not comprise technical features, such as the presence of hardware, the patent application will be refused.
Article 5.8.2.5 lists a number of claim preambles which are not permissible. The additional guidelines in the Annex are to be added to the Article, and therefore they have to be consistent with the Article. If there are technical features, as mentioned above, but the preambles of the claims are "computer programme", "computer programme product", etc, the examiner will still refuse the application.
In case the application passes the two tests, the examination of patentable subject-matter issue will be conducted further in the substantive examination stage.
The assessment of patentable subject-matter in substantive examination stage
The examiner will consider whether the claimed subject-matter has a technical character, producing a further technical effect that is a technical effect going beyond the "normal" physical interactions between the programme (software) and the computer (hardware) on which it is run. If not, the application will still be refused because the subject-matter is not considered to be a patentable subject-matter.
Technical characters are quite diverse and Annex I provides guidelines for assessing a technical character for computer programmes, including:
i. Information modelling, activity of programming and programming languages
ii. Data retrieval, formats and structures
iii. Database management systems and information retrieval
The Annex also provides guidelines to consider a technical character for computer programmes where they relate to the following matters:
1. Performing mathematical methods
2. Artificial intelligence and machine learning
3. Simulation, design or modelling
4. Performing schemes, rules and methods for playing games
5. Performing methods for doing business
6. Presentations of information
7. User interfaces
Accordingly, there may be other guidelines for these seven matters, but where they relate to a computer programme, like the use of a computer programme to perform them, then the guidelines provided in Annex I will be applied.
These guidelines on the technical character are somewhat similar to the relevant guidelines of the European Patent Office.
We are preparing an English translation of this Annex and will soon post the translation on our website at https://investip.vn/news-insights/
Should you require any further information or assistance, please contact us at patent@investip.vn
