The Role of Industrial Property Protection Conditions for Inventions

protection to create conditions for everyone to have access to science and technology. Especially in underdeveloped countries, issues of medicine, health, and disease prevention are always issues that need attention and priority, so pharmaceuticals and preventive drugs are not considered subjects of exclusive patent protection by the State. This helps everyone have the opportunity to access methods of treatment, disease prevention, ensuring general health for the whole society, this is also a manifestation of the role of the social function of the State, preventing the monopoly of a group of interests.

The socio-economic policies of the protecting country in each period have had a huge impact on the establishment of patent protection conditions. This factor has more or less created and is creating relative differences in patent protection conditions of countries around the world.

In fact, countries around the world have been making every effort to find a balance between the benefits of promoting scientific and technological development and the ethical values, humanity and interests of the social community in building a mechanism to protect industrial property rights for inventions. The direction in which economic and social policy makers resolve this issue directly and strongly affects the conditions for patent protection in that country. Patent protection for technical solutions related to biotechnology is an example.

In underdeveloped or developing countries, where hunger and disease are the most pressing issues facing governments, technical solutions related to biotechnology such as new plant varieties, pharmaceuticals, etc. are considered to be excluded from patent protection.

It can be affirmed that reflecting policy orientations

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The socio-economic development of a country under the conditions of patent protection is extremely important, especially for developing and underdeveloped countries. Because the scope of influence of patent protection conditions in many cases does not stop at science and technology but can also have significant social impacts on other social areas such as traditional ethics or social welfare...

1.3.2. The role of industrial property protection conditions for inventions

Firstly, industrial property protection for inventions encourages invention owners to innovate and improve science and technology.

The existence of a legal system that protects exclusive patent rights or industrial property rights for inventions, with the ability to obtain exclusive rights to exploit inventions for a limited period of time, has created important incentives for invention and innovation activities, creating new technologies, and at the same time helping patent owners effectively protect their creative achievements, continue to invest in developing and creating new inventions.

During the period of time that the patent owner has the exclusive right to exploit the patent, a favorable environment is created for the effective development and exploitation of the patented technical solution. By minimizing uncontrolled competition from those who do not bear the initial financial risk, the patent monopoly system provides the patent owner with the opportunity to earn income to offset the costs incurred in the process of developing the invention such as capital, time, equipment, and labor. At the same time, the exclusive right to exploit the patent also gives the patent owner the ability to earn profits from the sale of the patented product and from licensing and transferring the patent to others. The reward for the patent owner is financial benefits.

and the inventor is motivated to repeat the process of creation and invention, investing part of himself in research and development activities to create new inventions [44, p. 14].

Second, protecting industrial property rights for inventions contributes to creating a business environment and healthy competition, thereby promoting socio-economic development.

With strict regulations on the protection of industrial property rights for inventions, competitors are forced to invest in innovation to compete with the patent owner, and cannot imitate or copy the patent owner's inventions at low cost, because those are illegal acts, and they will be legally responsible for such acts. In fact, the protection of industrial property rights for inventions in particular, as well as other industrial property objects in general, if taken lightly, will lead to the creation of an unhealthy competitive environment, a barrier to a free and open market. On the contrary, effective protection of industrial property rights for inventions is to maintain a clean and creative business environment, thereby ensuring the competitiveness of enterprises and promoting socio-economic development.

Third, protecting industrial property rights for inventions creates a rich and diverse system of technological information storage, enriching technological knowledge.

From the perspective of the general interest of society, even though the patent protection mechanism creates the possibility of promoting the sharing and distribution of benefits obtained from inventions through licensing activities for others to use in different geographical areas of the world. More importantly, the patent protection system creates the most abundant technological information storage system that exists in the modern world. According to the regulations, in order to be

In order to grant a patent, the inventor must disclose specific patent information to the extent that a person with average skill in the relevant technical field can understand and implement the technical solution mentioned in the patent and must be publicly announced. This information can be very effective not only for scientific research and experimentation but also for business activities of enterprises during the period of patent protection. Based on the source of patent information, it is possible to determine the trend of technological development, know the gestation or decline of a certain technique, and can determine whether competitors have potential or not?...

In addition, protection of industrial property rights for inventions also plays an important role in technology transfer and investment.

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.

Firstly, the conditions for patent protection are the "backbone" of the legal regime on intellectual property (or industrial property) protection for inventions.

Through the conditions of patent protection, the State can achieve the goals of promoting the development of science and technology of the country in accordance with each certain period. It acts as a necessary "filter" to limit the protection of industrial property rights for those

Technical solutions that lack novelty, creativity and industrial applicability, and the conditions for patent protection indirectly create a driving force to promote the creative potential of inventors as well as create conditions for the dissemination and development of valuable knowledge in society. A typical example of the effective use of regulations 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 strict requirements on novelty, creativity and industrial applicability for technical solutions requiring protection has 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.

Second, patent protection conditions act as an effective legal tool for the State to perform its regulatory role between social interests, which are directly and mainly the interests between inventors and the rest of society.

In order to simultaneously achieve both goals, stimulating the creative activities of inventors and creating conditions for the public to benefit from those creative activities, the state has stipulated the conditions for patent protection, the most obvious manifestation of which is the patent protection for drugs that can cure incurable diseases such as AIDS or cancer. 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 entirely understandable, because after all, the conditions for patent protection are part of the superstructure. When the conditions for protection

If patents 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 scientific and technological development capacity of the country.

1.3.3. Conditions for patent protection according to international treaties and laws of some countries in the world

1.3.3.1. Conditions for patent protection under international treaties

In the field of invention and patent protection, Vietnam has participated in two very important treaties: the Patent Cooperation Treaty (PCT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

For the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the conditions for patent protection are directly stipulated in Article 27 on Patentable Subject Matter , according to which a patent shall be granted for any invention, whether a product or a process, in any field of technology, provided that the invention is new, involves an inventive step and is capable of industrial application . Depending on certain specific cases, patents must be granted and patent rights must be enjoyed regardless of the place of invention, the field of technology and regardless of whether the products are imported or domestically produced. As for the Patent Cooperation Treaty (PCT), the conditions for patent protection are indirectly stipulated through the provisions on International Preliminary Examination, according to which the invention to be protected must be new, involve an inventive step (non-obvious), and be capable of industrial application.

Thus, the patent protection conditions of the above two Treaties include three criteria as institutionalized by Vietnamese intellectual property law: novelty, creative level and industrial applicability.

1.3.3.2. Conditions for patent protection under the laws of some countries

a. European Union (EU)

Conditions for patent protection according to the provisions of the European Patent Convention:

- Novelty conditions: Clause 1, Clause 2, Article 54 stipulates: (i) An invention is considered novel if it is not part of the prior art. (ii) Prior art is considered to include everything that is accessible to the public, in the form of written or oral descriptions, in the form of use or other forms, before the date of filing the patent application. In general, the provisions on novelty of Vietnamese law and EU law are similar. The requirements on novelty seem to have become a common standard worldwide. In countries whose laws recognize novelty as a necessary condition for patent protection, the provision that a technical solution has not been publicly disclosed in the form of use, written description or any other form domestically or abroad before the filing date of the patent application (or before the priority date in the case of a patent application entitled to priority) is considered to meet the criteria.

- Inventive step condition: Article 56 of the European Patent Convention stipulates: an invention will be considered to have an inventive step if, based on known technical solutions, it is not obvious to a person with average knowledge in the relevant technical field. Thus, in terms of the content of the provisions on inventive step, Vietnamese IP law has no difference compared to the provisions of the European Patent Convention.

- Conditions for industrial applicability: Article 57 of the European Patent Convention stipulates: an invention is considered to be industrially applicable if it can be implemented or used in any industrial field including agriculture.

In terms of terminology, there is a fundamental difference because the European Patent Convention directly refers to the possibility of applying an invention to any industrial field, including agriculture. Vietnamese law recognizes the possibility of industrial application as the invention can be “manufactured, mass produced” or “repeatedly applied to the process” which further specifies the term “ industrial applicability”.

b. United States

The United States is the country with the largest number of patents in the world. It can be said that this is one of the countries with the most extensive and easy patent protection mechanism, as evidenced by the famous saying “All things under the sun made by man are patentable”. The US statutory law stipulates the basic conditions for an invention to be protected, which are:

- Novelty requirement: The US Patent Law (Article 35 USC 102) stipulates: a person is granted a patent unless – a, The invention has been known or used by others in this country, or has been granted a patent or described in a publication in this country or another country, before the date of filing the application for a patent. Similarly, the provision on novelty of an invention is considered a general provision, so there is no difference between the US patent law and the Vietnamese IP Law.

- Inventive step requirement: US Patent Law, Article 35 (USC

103) provides: A patent may not be granted… if the difference between the claimed subject matter and the prior art is such that the subject matter is obvious to those skilled in the art. However, since the United States is a country with a common law system,

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