Like many other countries, in Vietnam, pure computer programs are not patentable – they are to be protected by the copyright law, but certain computer programs are still eligible for patent protection. The examination of computer programs is guided at Article 126.96.36.199 of the Vietnam Guidelines for patent examination (Guidelines). The Article is not detailed enough and the Intellectual Property Office of Vietnam recently issued Annex I (of the Guidelines) which contains guidelines to be added to said Article.
The additional guidelines are not for the assessment of novelty and inventive step, but aim 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 like a computer, computer-implemented), he/she will refuse the patent application.
Said Article 188.8.131.52 lists a number of claim preambles which are not legal. The additional guidelines in the Annex are to be added to the Article, and therefore, they have to be consistent with the Article. Then, if there are technical features as mentioned above, but the preambles of the claims are “computer program”, “computer program product”, etc., the examiner will still refuse the application.
In case the application passes said two tests, the examination of patentable subject-matter issue will further be conducted 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 program (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 the Annex I provides guidelines for assessing a technical character for computer programs as such, also including:
i. Information modeling, 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 programs where they relate to the following matters.
1. Performing mathematical methods
2. Artificial intelligence and machine learning
3. Simulation, design or modeling
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 program like the use of a computer program to perform them, then the guidelines provided in the Annex I will be applied thereto.
These guidelines on the technical character are somewhat similar to the relevant guidelines of the European Patent Office.