1. What Can Be Patented?

Vietnam recognizes the importance of innovation and offers patent protection to safeguard your intellectual property. However, not every idea qualifies. This section dives into the types of inventions that can be secured with a Vietnamese patent.

The Realm of Patentable Inventions

Vietnam's patent system focuses on two main categories of inventions:

Inventions: These are technical solutions that address a specific problem by applying natural laws. They can take the form of a product or a process. Imagine a new type of machine or a novel method for manufacturing a product. If these advancements utilize scientific principles to solve a practical issue, they have the potential to be patentable inventions.
Utility Solutions: Similar to inventions, utility solutions are technical advancements. However, the inventive step (the degree of novelty compared to existing knowledge) may be lower for utility solutions. Think of minor improvements to existing processes or products. While they might not be revolutionary breakthroughs, they can still demonstrate ingenuity and be commercially viable.

By meeting the specific criteria outlined later, these types of inventions can be granted patents in Vietnam, giving you exclusive rights over their production, use, and sale.

2. Key Criteria for Patentability

Securing a patent in Vietnam grants you exclusive rights over your invention, allowing you to control its production, use, and sale. However, not every idea qualifies for this powerful protection. The Vietnamese patent system establishes three key criteria that your invention must meet to be deemed patentable: novelty, inventive step, and industrial applicability. These criteria act as the cornerstones of patentability, ensuring that patents are awarded to genuine advancements that contribute to technological progress.

2.1. Novelty: The Freshness Factor

The first hurdle for patentability is novelty. Your invention must be entirely new and not publicly disclosed anywhere in the world before your patent application date. This means the invention cannot have been:

Described in any printed publications, including scientific journals, patents, or brochures.
Disclosed at public presentations, conferences, or exhibitions.
Described in any publically available documents, such as marketing materials or technical specifications.
In common use or knowledge within the relevant technical field.

The novelty requirement ensures that patents are not granted for ideas that are already known or readily accessible to the public. It prevents others from claiming ownership of something that already exists and encourages the development of truly groundbreaking inventions.

However, there are some exceptions, but it will depend on the jurisdiction. For example, in Vietnam, an invention will not be considered to lose its novelty within 6 months in some cases such as:

The invention was published by someone else without the permission of the person who has the right to register
The invention of the person who has the right to register is published in the form of a scientific report
The invention of the person who has the right to register is on displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition

2.2. Inventive Step: Beyond the Obvious

Novelty is not enough. Your invention must also demonstrate an inventive step, meaning it cannot be obvious to someone skilled in the relevant field. In simpler terms, your invention should not be an expected or foreseeable advancement based on existing knowledge.

Here's where the relationship between novelty and inventive step becomes crucial. While an invention might be entirely new (never seen before), it might lack an inventive step if it's a minor variation on a well-established concept. For example, a slight modification to an existing tool wouldn't qualify if that modification would be readily apparent to someone skilled in that field.

The inventive step is significantly less objective than the novelty. "Would the claimed invention be obvious to a person skilled in the art, given the known prior art?" is the standard question used to evaluate inventive steps. The competent person sometimes referred to as the person skilled in the art, is a fictitious figure in the relevant field of technology who is proficient in their work but lacks creativity. As a result, evaluating imaginative steps reduces to determining what an experienced professional in the relevant sector who lacks much creativity or experimentation would find evident.

The inventive step requirement ensures that patents are awarded for inventions that represent a genuine leap forward in technology. It encourages innovation that pushes the boundaries of what's currently known and offers substantial improvements over existing solutions.

2.3. Industrial Applicability: From Concept to Reality

The final piece of the patentability puzzle is industrial applicability. Your invention must be capable of being produced or used in an industrial setting. This means it should be a practical solution that can be implemented and utilized within a specific industry.

The concept behind your invention might be brilliant, but if it's purely theoretical or impossible to manufacture or use practically, it won't meet the industrial applicability requirement. For instance, a perpetual motion machine, despite being a novel concept, defies the laws of physics and cannot be built, thus failing this criterion.

Industrial applicability ensures that patents are granted for inventions with real-world applications. It encourages innovation that can be translated into tangible benefits for businesses and contribute to economic growth.

2.4. The Interconnected Web:

These three criteria for patentability are not isolated concepts; they are intricately linked. A truly patentable invention must possess all three qualities. Novelty ensures a fresh idea, inventive step guarantees significant advancement, and industrial applicability confirms its practical value.

Imagine a new type of material with previously unknown properties. This invention would likely be considered novel. However, if its properties are simply a minor improvement over existing materials and offer no significant advantage, it might lack an inventive step. Furthermore, if the material is incredibly difficult or expensive to produce, it may not be industrially applicable. Only if the invention demonstrates all three qualities - novelty, inventive step, and industrial applicability - can it be considered patentable in Vietnam.

3. Exclusions from Patent Protection

While Vietnam's patent system encourages innovation, it doesn't offer protection for everything. Certain categories of inventions are explicitly excluded from patentability. Understanding these exclusions is crucial to avoid wasting time and resources on patent applications for ineligible subject matter.

Here's a breakdown of some key exclusions:

Discoveries, Scientific Theories, and Mathematical Methods: These are fundamental principles or natural laws themselves, not practical applications of those principles. For example, the theory of gravity cannot be patented, but a new device that utilizes gravity in a novel way might be. That is why Einstein did not patent his famous equation E= MC^2. By doing this, the overall progression of science will be halt to a complete standstill
Schemes, Rules, and Methods: Concepts related to performing mental acts, playing games, doing business, or pure strategies are not patentable. Business models, financial plans, or marketing strategies fall under this category.
Software per se: The underlying computer program code itself cannot be patented. However, inventions that combine software with hardware or utilize software in a novel way to solve a technical problem might be patentable under specific guidelines.
Plants and Animals, and Essentially Biological Processes: Naturally occurring plants and animals, as well as breeding methods for them, are not patentable. However, genetically modified organisms or microorganisms created through a technical process might be eligible for patent protection.
Moral Inventions, Schemes, Rules and Methods Contravening Public Order or Morality: Inventions that promote illegal activities or violate ethical principles will not be granted patents.

This list is not exhaustive, and the specific exclusions are outlined in Vietnamese patent law. It's important to consult with a patent attorney to determine if your invention falls within these categories or if there's a possibility of obtaining patent protection through a different approach.

Beyond Exclusions: Considering Alternatives

While some creations might not be patentable, there might be other forms of intellectual property protection available. For example, copyright can protect the original expression of software code, even though the code itself cannot be patented. Similarly, trade secrets might be a viable option for protecting certain types of confidential information or know-how.

4. Determining Patentability

Knowing the criteria for patentability in Vietnam is essential, but how do you determine if your invention actually meets those requirements? This section explores strategies for assessing your invention's patentability and navigating the path towards securing a Vietnamese patent.

Self-Assessment: A First Look

While a patent attorney's expertise is invaluable, you can conduct a preliminary self-assessment to gauge your invention's patentability potential. Here are some questions to consider:

Novelty: Has your invention been publicly disclosed anywhere in the world before your intended filing date?
Inventive Step: Does your invention offer a significant advancement over existing solutions? Would it be obvious to someone skilled in the field based on current knowledge?
Industrial Applicability: Can your invention be realistically produced or used in an industrial setting? Does it have a practical application within a specific industry?

By honestly answering these questions, you can gain a basic understanding of your invention's potential for patent protection.

Patent Searches: Unveiling the Landscape

Taking your assessment a step further, consider conducting a patent search. This involves searching existing patents and patent applications to see if similar inventions already exist. Patent databases like those offered by the World Intellectual Property Organization (WIPO) or the Vietnamese Intellectual Property Office (IP Vietnam) can be valuable tools for this purpose. While a patent search doesn't definitively determine patentability, it provides crucial insights into the existing technological landscape and potential conflicts with prior inventions.

Seeking Expert Guidance: The Role of a Patent Attorney

For a comprehensive assessment and to navigate the complexities of the patent application process, consulting with a Vietnamese patent attorney is highly recommended. Patent attorneys possess a deep understanding of Vietnamese patent law and can analyze your invention in detail. They can:

Conduct a thorough patentability search, including a legal analysis of relevant case law.
Advise on strategies for maximizing the scope of your patent claims.
Prepare and file your patent application with the Vietnamese IP Office.
Represent you throughout the patent examination process.

The expertise of a patent attorney significantly increases your chances of successfully obtaining a patent for your invention in Vietnam.

5. Conclusion

Vietnam's patent system offers a powerful tool for safeguarding your innovative ideas. By understanding the key criteria for patentability - novelty, inventive step, and industrial applicability - you can determine if your invention qualifies for this exclusive protection. While certain categories are excluded from patent protection, exploring alternative forms of intellectual property safeguards might be possible.

The path to securing a Vietnamese patent involves self-assessment, patent searches, and most importantly, consulting with a qualified patent attorney. Their expertise can guide you through the application process, maximize the scope of your protection, and increase your chances of success. By leveraging the Vietnamese patent system effectively, you can ensure your inventions receive the legal recognition they deserve, fostering innovation and propelling your ideas toward a successful future in the Vietnamese market.

If you need further explanation on this subject, please don't hesitate to contact us through email at lienhe@luatminhkhue.vn or phone at: +84986 386 648—lawyer To Thi Phuong Dzung