Conditions for Patent Protection in Current Vietnamese Law

farming, mining and other industrial processes. Point 4.1, Chapter IV of the guidelines for international preliminary examination of PCT applications also clearly states: The term industry is understood to include all practical activities of society, except those of an artistic nature. Accordingly, the applicability of the invention will not be considered in areas related to human mental activities.

An invention is considered to be industrially applicable if it can be used and manufactured on a certain technical scale. According to Austrian law, to be protected by a patent, a technical solution must be capable of being implemented in practice. Any technical solution that can be used or implemented by human practical activities is considered to be industrially applicable. Technical solutions that are purely speculative or go against the laws of nature, such as a perpetual motion machine or a solution to combat ozone depletion by creating a plastic barrier covering the entire atmosphere of the earth, etc., will not be patented because they are not capable of being implemented in practice. Exceptionally, there are some technical solutions that, although completely feasible in practice, are still considered to be incapable of being applied industrially. Patent laws in many countries around the world do not assess the industrial applicability of inventions that are intended to satisfy a person's personal needs or are only feasible for a specific individual. For example, patents related to methods of using fertility drugs (European Patent Commission), methods of smoking (Japan), and methods of fitting ski boots to skis (Switzerland). This exclusion is meant to ensure the possibility of mass reproduction and wide application of technical solutions of inventions.

It should be noted that the industrial applicability criterion does not assess the possibility of exploiting the economic and financial aspects of the technical solution for which protection is sought. The French Patent Law stipulates that: To be eligible for patent protection, the subject matter for which protection is sought must be capable of achieving a certain practical result of a technical nature, regardless of its perfection, even if technical experts consider that the exploitation of the invention does not bring any profit or utility value.

Some countries in the world do not set industrial applicability as a condition for considering patentability. Patent laws of

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Countries such as the United States of America, Canada, Australia, New Zealand... require that the technical solution of an invention must be useful. An invention is considered to meet the requirements of usefulness if the solution is feasible and must meet a specific purpose in practice.

According to the patent examination guidelines of the United States Patent and Trademark Office (USPTO), a technical solution is considered useful if:

- A person skilled in the relevant technical field can immediately recognize the usefulness of the invention. For example, an invention relating to a method of using genetically modified mice as food for snakes is considered not to meet the requirement of usefulness. Because, to create a genetically modified mouse can cost thousands of dollars. Therefore, this technical solution is considered not to meet the requirement of usefulness and will not be protected.

- The usefulness of the invention must be specific and certain. Accordingly, the inventor must demonstrate that the technical solution is feasible for a specific purpose. The arguments and evidence to prove it must be considered clear enough for a person with average skill in the corresponding technical field to understand and successfully implement it under current conditions.

Utility in Canadian patent law is understood as the technical solution requiring protection must be capable of application and capable of bringing certain benefits to society... Similarly, Australian patent law stipulates that inventions that do not have economic benefits for the country will not be protected. For example, an invention that deals with a method of reducing the noise of jet engines is considered not to meet the requirement of utility because this type of aircraft is no longer in practical use.

Thus, we can see that, from a certain perspective, the requirements for utility have relatively strict regulations compared to the requirements for industrial applicability. An invention, if considered to be capable of being implemented in practice, means that it can meet the criteria for industrial applicability. However, to achieve the condition of utility, the inventor must not only demonstrate the usability and applicability of the technical solution

technical, but also must demonstrate the effectiveness and economic value of implementing that technical solution in practice.

1.2.4. Meaning of patent protection conditions

Once again, let me repeat the famous saying of Abraham Lincoln: “Patents add fuel to the fire of ingenuity”. It is undeniable that the protection of industrial property rights for inventions has had a very strong impact on the development of science and technology in the world in recent decades. More and more countries are realizing that building legal regulations on the protection of industrial property rights for inventions is one of the most effective measures to promote and exploit creative potentials in society as well as attract technology transfer activities from abroad. To achieve that goal, the conditions for patent protection play a very important role.

In a certain sense, it can be affirmed that the conditions for patent protection are the “backbone” of the legal regime on intellectual property protection for inventions. Through the conditions for patent protection, the State can achieve the goals of promoting the development of science and technology in the country in accordance with each specific period. Acting as a necessary “filter” to limit the protection of industrial property rights for technical solutions that are not novel, creative and applicable, the conditions for patent protection indirectly create a driving force to promote the creative potential of inventors as well as create effective conditions for the dissemination and development of valuable knowledge in society.

A typical example of the effective use of the provisions on patent protection conditions is Japan in the years after World War II. It can be said that the possible expansion of the subjects of patent protection together with the strict requirements on the conditions of novelty, level of creativity and applicability of the technical solution requested for protection have contributed significantly to the "miraculous" development of Japan from a developing country to one of the countries with the world's leading scientific and technological development as it is today.

Patent protection conditions, in a certain sense, are also an effective legal tool for the State to perform its role in regulating social benefits, which are directly and mainly the benefits between inventors and the rest of society. How can the State simultaneously perform both?

The goal is to both stimulate the creative activities of inventors and create conditions for the public to benefit from those creative activities. The most obvious manifestation of this problem is the patent protection for drugs that can cure incurable diseases such as AIDS or cancers. Therefore, building conditions for patent protection from the perspective of excluding the possibility of patent protection for these subjects or proposing strict protection conditions is often carefully calculated by countries, in order to suit their own circumstances.

This is completely understandable, because after all, the conditions for patent protection are part of the superstructure. When the conditions for patent protection are regulated in accordance with the conditions and level of scientific and technological development of the protecting country, it will be a driving force. However, once the conditions for patent protection are regulated at a level lower or too high compared to the actual situation, it can completely paralyze the entire ability for scientific and technological development of the country.

CHAPTER II. PROVISIONS OF VIETNAMESE LAW ON CONDITIONS FOR PATENT PROTECTION

Compared to other countries in the world, the formation and development of legal regulations on conditions for patent protection in Vietnam is relatively late. It was not until 1981 that Vietnam first had initial regulations on patent protection and conditions for patent protection through the promulgation of the Charter on technical innovation, production rationalization and invention. Up to now, through a number of amendments and supplements, especially with the promulgation of the new Civil Code in 2005 and the Law on Intellectual Property which came into effect from July 1, 2006, the provisions of Vietnamese law on conditions for patent protection have been and are gradually being improved.

In general, the provisions on patent protection conditions of Vietnamese law have quickly inherited the most basic rational cores from the traditional model of "Scope of patentable objects; Novelty; Creativity and Industrial Applicability" of the world. These provisions, in recent times, have partly met the basic requirements in implementing the policy of science and technology development in our country. However, besides that, there are still certain limitations, not suitable for practice, need to be amended and supplemented appropriately in the coming time.

2.1. CONDITIONS FOR PATENT PROTECTION IN CURRENT VIETNAMESE LAW

2.1.1. Scope of patented objects

Inheriting and developing the basic legal spirit that has been built and developed through legal documents such as Decree 31/CP dated January 23, 1981 on promulgating the Charter on technical improvements to rationalize production and inventions, the 1989 Industrial Property Ordinance, the 1995 Civil Code, etc. Clause 12, Article 4 of the 2006 Intellectual Property Law continues to affirm: "An invention is a technical solution in the form of a product or process to solve a specific problem by applying the laws of nature". Thus, objects that can be protected under the name of inventions must first of all be solutions with technical signs.

Technical signs under Vietnamese law are not much different from the world's traditional view on inventions. Specifically, technical signs are

clearly defined as the application of the laws of nature to solve a certain problem. The form of this application may be expressed in the form of products including machines, machine parts, chemicals, biological materials or similar and processes including physical processes, chemical processes or biological processes, etc. Therefore, objects that are not technical solutions, or, in other words, are not applications of the laws of nature to solve certain problems will not be protected under the name of invention.

Article 59 of the Law on Intellectual Property clearly lists the list of objects without technical signs that are excluded from patent protection, including:

- Inventions, scientific theories, mathematical methods;

- Schemes, plans, rules and scientific methods for performing mental activities, training animals, playing games, doing business;

- Computer program;

- How to present information;

- The solution is only aesthetic.

Invention is essentially just a recognition of specific phenomena, properties, physical forms or laws of the natural world that humans have not previously been able to perceive or verify. An invention can only be protected under the name of a patent if it is applied to solve a specific human problem. For example, the scientist Mari Quiry invented the phenomenon of radioactivity. This invention is not considered to have technical signs, because in essence it is just the discovery of an objective natural phenomenon that was previously unknown to humans. However, when the phenomenon of radioactivity is applied to create a weapon with high lethality such as an atomic bomb or a nuclear bomb, it is a technical solution in the form of a patent that can be protected. Scientific principles and mathematical methods are also a specific form in the process of human perception of the natural world. These objects themselves do not raise or indicate specific material activities in the process of human impact, transformation and mastery of nature. In other words, they cannot be applied to practical production and human life activities. Therefore, the industrial applicability of these objects is of course

be rejected without having to undergo any patent examination procedure.

Schemes, plans, rules and methods for performing mental activities, training animals, playing games, doing business, and ways of expressing information are objects that are only meaningful in purely intellectual activities or other economic and social activities of humans. These are solutions belonging to non-technical fields. Therefore, they cannot be protected by patents but can only be protected by intellectual property rights under the law on copyright protection.

Regarding the subject of computer programs, the Vietnamese Intellectual Property Law continues to inherit the traditional viewpoint recorded in the 1995 Civil Code and its implementing documents, not considering this a technical solution capable of being protected by a patent. A computer program is specifically expressed in the form of certain commands or codes. In essence, a computer program is the implementation of a series of logical operations, with the digits 0 and 1. With this characteristic, a computer program is identified as a special form of mathematical method and therefore is not considered to have technical signs. From the 1970s to the first half of the 1980s, there were many international discussions focused on the issue of intellectual property protection for computer programs under the law on patent protection or copyright, or under an independent system. By 1985, experts from WIPO and UNESCO had reached a consensus on protecting intellectual property rights for computer programs under the copyright protection system. This view is still supported by the majority of countries in the world today, especially countries following the European school of intellectual property law. However, the characteristic legal nature of the copyright protection system is to protect only the external expression of the work, not the content of those ideas. Meanwhile, with the current rapid development speed of the software industry, there are more and more computer programs that fully meet the requirements of industrial applicability, novelty and creative level of an invention. In addition, computer programs have become an indispensable key component in most of the world's technical innovations. Therefore, looking into the more distant future, it would be inappropriate to rigidly prescribe and exclude all types of computer software objects from the list of patentable technical solutions.

Solutions that are purely aesthetic include artistic creations such as paintings, architecture, sculpture, dance, literature, etc. These objects belong to a completely different field, which is the expression of human spiritual life in certain material forms, not belonging to the technical field. For these objects, it is necessary to clearly define that the aesthetic aspect of the solution itself is not within the scope of protection under the name of an invention. However, if the solution contains technical signs, and those technical signs are capable of meeting other conditions of novelty, creativity and applicability, they can still be protected under the name of an invention. For example, a book is made up of the form of language expression, the way of arranging information, the combination of colors, and lines in it, these aspects will not be protected under the name of an invention. However, for possible technical signs such as paper materials, printing ink, printing methods can be protected by patent.

Through the above analysis, it can be seen that, according to Vietnamese law, the scope of protected objects under the name of invention is relatively close to the world's traditional view on the concept of invention. If compared with the latest approaches to invention that are recognized by many developed countries in the world, the limit of protected solutions in Vietnam is quite narrow. In a certain aspect, with this scope of protected objects, it is somewhat suitable for the limited conditions of scientific and technological development in our country at the present stage. However, in the near future, when truly integrating into the world economy, not protecting inventions for a number of new, important objects such as computer programs, business methods applying network protocols will most likely lead to unnecessary losses for Vietnamese enterprises in the world trade market.

2.1.2 Conditions for novelty of invention

Novelty is one of the basic requirements in the content examination process for granting a patent. Accordingly, only technical solutions that, at the time of filing the application for protection, are novel compared to the world's technical level, are eligible for patent protection. This is a qualitative condition that cannot be specifically defined or described in language. Only the loss of novelty can be proven. Therefore, like most countries in the world, the law on patent protection

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